Supreme Court Could Make it Harder For States and Localities to Keep Guns Off Streets

As the nation confronts the horror of mass shootings that appear to be happening almost weekly, legal experts expect the U.S. Supreme Court to strike down laws in several states that restrict people from carrying guns in public.

The court is likely to nix this month a New York law that requires people to show they have a justifiable reason to be licensed to carry a firearm in public. The court is expected to declare that such a requirement is a violation of Second Amendment gun rights, as well as similar requirements in seven other liberal states, including in Massachusetts, California and Connecticut, where 26 people at Sandy Hook Elementary School—mainly children—were killed in 2012. 

Similar laws in some major cities would also be wiped away. The U.S. Conference of Mayors and the National League of Cities filed a brief in the case saying they feared that stripping away the laws would make the jobs of police officers harder by putting more guns on the streets, said Lisa Soronen, executive director of the State and Local Legal Center, which represents the organizations in Supreme Court cases. 

“The indications from the oral arguments seem to point in that direction,” Duke University law professor Darrell A.H. Miller told Route Fifty, as did several other gun law experts.

The upcoming decision in New York State Rifle & Pistol Asso­ci­ation v. Bruen, in the wake of the recent shootings in New York, Texas and Oklahoma, is drawing concern from gun control groups like Everytown for Gun Safety. 

The group cited a 2020 report in The Washington Post that found that the number of people licensed to carry firearms in Washington, D.C. rose from 123 in 2017 to more than 4,000 three years later after a U.S. Court of Appeals struck down a district law similar to those in New York and other states that required people show justification to carry guns in public.

The prospect of that occurring in other states is drawing concern even among some lawmakers who generally support gun rights.

“If you look at the standards we have in place in Massachusetts, we’re second in the country in having the lowest gun violence. What we have in place I think works,” said State Sen. Michael Moore, a Democratic member of the legislature’s Joint Committee on Public Safety and Homeland Security who is endorsed by the Gun Owners Action League. 

In addition, Miller said that the Supreme Court's reasoning could also have implications for other state and local gun laws. 

The court could rule that gun laws have to mirror the laws that existed at the nation’s founding—a move that could jeopardize laws adding increasing penalties in domestic violence cases that involve the use of weapons because domestic violence was not a crime in the 1700s. Subways and airplanes also did not exist, though Miller noted that there were laws that prohibited weapons in places where people congregate.

However, legal experts believe the ruling will not be the end of the debate but trigger more court battles.

“I don’t think they’re going to throw up their hands and say ‘Ok,’ '' said University of California, Los Angeles law professor Adam Winkler, of the localities and states impacted by the ruling. 

Instead, Winkler said that depending on the upcoming decision, states and cities will try to impose as many additional requirements as they can on carrying firearms in public, including greater training or barring guns from “sensitive areas” like schools and government buildings.

Washington, D.C., even after the requirement to justify having guns in public was stripped in the Wrenn v. District of Columbia case in 2017, had laws allowing it to bar people from carrying guns in public based on “factors judging their suitability,” like criminal records and mental health. In addition, the city bars guns in government buildings, schools, parks and religious institutions.

Barring Guns in ‘Sensitive' Areas

It’s unclear how much discretion the court will leave jurisdictions to restrict guns outside of people’s homes. “We don’t have an indication of how broad or narrow it will be,” Miller said.

Theoretically, the court could eliminate jurisdictions’ ability to act by ruling that any restrictions on carrying guns in public is unconstitutional. However, experts, including Southern Methodist University law professor Eric Ruben, a fellow at the Brennan Center for Justice, noted that justices during oral arguments on Nov. 3 raised the idea of barring firearms in “sensitive locations.”

“You can get a permit, but the state can impose certain restrictions,” Chief Justice John Roberts said to attorneys on both sides. Roberts raised the idea of barring guns from college campuses and places where alcohol is served.  

Justice Elena Kagan also mentioned barring guns from subways and Yankee Stadium in the Bronx, New York, while Justice Amy Coney Barrett brought up Times Square in New York City on New Year’s Eve.

Miller, though, said he doubted that even if the court were to allow an exception for certain places, it will act as “a judicial zoning czar for guns nationwide” and define in detail what those areas are.

Instead, he said the court will more likely opt to let cities and states to define “sensitive areas,” and then judge whether they are constitutional when they are inevitably challenged in court.

Growing National Concern

The upcoming ruling would be the next step by the court in expanding gun rights after its 2008 ruling in District of Columbia v. Heller, in which it upheld the rights of people to have guns inside their homes. That case struck down the district’s law banning handguns and requiring rifles and shotguns to be unloaded and locked at home.

The case, however, did not address the ability of state and local governments to restrict carrying guns outside of their homes.

According to the pro-gun control group Giffords Law Center, California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York and Washington, D.C., have “may issue” laws that require gun owners to justify why they need to carry guns in public.

By comparison, according to the law center, 25 states generally allow people to carry concealed weapons in most public spaces without a permit, background check or safety training. Another 17 “shall issue” states generally require authorities to issue licenses to carry guns.

Sen. Cory Booker, a New Jersey Democrat and the former mayor of Newark, told Route Fifty that he’s holding out hope the court would not strike down his state’s law, saying states and localities should be left to regulate weapons as they see fit.

“I'm obviously very concerned. The Supreme Court seems to talk about states' rights. I think it is an extreme ideological bent, but not when it involves issues that are going to protect and keep people safe, like common sense gun rights,” he said.

Sam Liccardo, mayor of San Jose, California, where a gunman killed nine colleagues at a public transit railyard last May, was less sure.

“Like many Americans awaiting Supreme Court rulings, I’m not optimistic that the court will land on the right side of history,” said Liccardo, who added he fears invalidating the laws would “translate to more people carrying more people carrying more guns in the streets of our cities.”

Moore, a former vice chair of Massachusetts’s public safety and homeland security joint committee, also said he hoped the high court would not invalidate his state’s law.

“I’m an advocate for the Second Amendment but that advocacy comes with certain limits,” he said. “I don’t think increasing the amount of firearms on the street is a good idea. I think a key part of quality of life is safety.”

What’s Next

Should his state’s law requiring justification for having guns in public be struck down, Moore said Massachusetts will likely move quickly to create a working group to figure out what the state can do given the court’s decision.

Liccardo, who called the shooting at the Santa Clara Valley Transportation Authority the “darkest day of my life,” said his city has taken steps requiring gun owners to buy liability insurance and pay fees to fund San Jose’s gun violence reduction efforts. 

The requirements are being challenged in court. But, he said, cities should do similar things if the court strikes down the laws. 

“Efforts like these will become increasingly imperative as we see the impacts of the laissez faire approach of the courts to gun laws,” said Liccardo, who spoke at a panel discussion on dealing with mass shootings at the Conference of Mayors annual meeting Saturday.

Winkler predicted state and local lawmakers in areas where laws are struck down will try to exploit loopholes to enact new regulations. If allowed to bar guns in sensitive areas, they could, for example, bar firearms within 2,000 feet of schools and religious institutions until.

“If you add it all up,” guns would be outlawed in most areas, he said.

State and city attorneys, Winkler said, should now be “doing the work to figure out what areas they can justify restricting guns.” 

Ruben agreed: “They need to be thinking about sensitive places, whether to require more training or require [gun license] renewals more frequently.”