The Corner

Law & the Courts

Gun Groups Take Concealed Carry to the Supreme Court

The United States Supreme Court building in Washington, D.C., May 3, 2020. (Will Dunham/Reuters)

New York State doesn’t recognize a right to carry a handgun in public. To get a concealed-carry permit, applicants must show they have an unusually strong need for self-defense, not just a normal and healthy desire to keep themselves safe. The state also bans the open carry of handguns entirely. There’s a “circuit split” among the nation’s courts as to whether such strict restrictions are kosher.

The New York State Pistol and Rifle Association and the National Rifle Association are asking the Supreme Court to step in. And now would be a good time for the Court to better enforce the Second Amendment, a project it began with Heller and McDonald more than a decade ago.

I’ll have more to say about this case if the Court takes it, but here are a few things I’m interested in when it comes to gun-carrying and the Second Amendment.

Most important is the core question of whether the right to “bear arms” includes a right to carry weapons in public. Since the previous Supreme Court cases, some academics have purported to find strong evidence that, instead, the term overwhelmingly referred to military-related activity in Founding-era writings. I find their methods unimpressive — here’s a good demonstration of the problem with counting a term’s uses and pretending that’s the same as defining the term, and here’s a more positive take on the method that also discusses its limits. Further, their conclusion flies in the face of several direct analogues to the Second Amendment, including state declarations of rights. These provisions protected the right of the people to bear arms “for the defense of themselves and the state,” “for the defense of the state” (which would be redundant if “bear arms” inherently referred to the defense of the state), and even “for the purpose of killing game.” But I’m curious what the Court and especially its conservatives will make of this new evidence.

There’s also the question of how states may restrict how arms are carried. Bans on concealed carry, as opposed to open carry, have a long history in this country, and Heller explicitly noted that history. Yet while concealed carry was once considered unmanly and dishonest, now it’s considered polite and wise, because it avoids announcing to everyone you come across that you’re a scary gun person who packs.

So, in keeping with history, should the Court say that open carry is a right but concealed carry is not? Or should it allow states to regulate the manner in which guns are carried, but not to ban gun-carrying entirely?