SCOTUS hears oral arguments on Second Amendment and gun control laws

By Melissa Mahtani, Melissa Macaya and Meg Wagner, CNN

Updated 12:37 p.m. ET, November 3, 2021
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12:37 p.m. ET, November 3, 2021

Arguments wrap up after Clement's rebuttal

From CNN's Tierney Sneed

A Second Amendment demonstrator holds American and National Rifle Association (NRA) flags outside the Supreme Court on Wednesday.
A Second Amendment demonstrator holds American and National Rifle Association (NRA) flags outside the Supreme Court on Wednesday. (Samuel Corum/Bloomberg/Getty Images)

After nearly two hours of arguments — well over the 70 minutes allotted in the court’s schedule — the hearing on New York’s public carry restrictions wrapped up.

It closed with a rebuttal presentation by Paul Clement, who is representing petitioners Robert Nash, Brandon Koch and the New York State Rifle and Pistol Association, that focused on the discretion that New York’s law gives officials to determine whether guns can be carried by individuals.

That element of discretion had attracted Justice Brett Kavanaugh’s ire throughout the arguments. While taking a dig at New York’s controversial stop and frisk policy, Clement said that the discretion had harmed individuals who were not allowed to exercise their constitutional second amendment rights, and faced punishment if they did.

The discretion “has real world cost,” Clement said.

A decision is expected next spring.

12:01 p.m. ET, November 3, 2021

Kagan raises effect on policing if court nixes public carry restrictions 

From CNN's Tierney Sneed

Justice Elena Kagan asked the Justice Department to say more about how striking down New York regime’s will mean for policing. 

Brian Fletcher of the Solicitor General’s office pointed to friend-of-the-court briefs filed by social scientists and others in support of New York’s law.

He said the Justice Department shared “the concern behind the New York law, which is the concern that having more guns on the street... does complicate and increase the danger inherent in citizen-law enforcement encounters.”

11:44 a.m. ET, November 3, 2021

Barrett asks Underwood if she thinks Supreme Court’s landmark 2008 gun rights ruling was rightly decided

From CNN's Tierney Sneed

Justice Amy Coney Barrett put New York Solicitor General Barbara Underwood in the hot seat by asking her whether District of Columbia v. Heller – the court’s 2008 ruling the enshrined an individual’s private right to keep guns in their home – was rightly decided. 

Underwood didn’t give the ruling a full-throated endorsement, but said she was “quite content” to treat it as rightly decided. 

Barrett’s question teed up a follow up on whether the court can depart from the interpretation of history it laid out in that decision. 

“You argue that we should understood those [historical examples] in some other cases differently than we did in Heller?” she asked.

11:28 a.m. ET, November 3, 2021

Alito and Kavanaugh suggest New York shouldn’t second guess people’s belief they’re in danger

From CNN's Tierney Sneed

Samuel Alito and Brett Kavanaugh – justices who have expressed so far the most sympathy towards the gun rights advocates’ arguments – grilled New York Solicitor General Barbara Underwood on whether it was appropriate for New York to second guess the assertions from public carry applicants that they need the guns for self defense. 

One of the individuals challenging the law had cited robberies in his neighborhood as a reason he needed to publicly carry a gun for self defense, and he was denied the unrestricted permit that he sought.

Alito raised the example of janitors and nurses who work late hours and might want firearms for self-protection. 

There’s a substantial number of people carrying illegal guns in the city, Alito said, “but the ordinary, hard-working, law-abiding people I mentioned, no, they can’t be armed.”

Kavanaugh asked Underwood: “Why isn’t it good enough to say I live in a violent areas and I want to be able to defend myself?” 

After struggling somewhat with the questions, Underwood tried to cut off the discussion by arguing that this case had not been framed around those issues. She said that if that’s the concern it should be remanded back to lower courts for consideration of those questions there. 

11:22 a.m. ET, November 3, 2021

Thomas and Roberts grill New York on how restrictions apply in rural vs. urban areas

From CNN's Tierney Sneed

New York Solicitor General Barbara Underwood, who is arguing in defense of the gun regulations, faced tough questions from both court’s far-right and more institutionalist conservatives on how the restrictions applied in rural vs, urban areas.

Justice Clarence Thomas was first to raise the issue as he kicked off the questioning of New York, as he suggested that an individual who had brought the challenge because he had been denied a license to unrestricted carry had lived in a rural area.

Chief Justice John Roberts followed up with pointed questions about whether the rural vs. urban framework made sense. He told Underwood that the need for self-defense may be greater in an urban area than in a rural one.

“It seems to me what you’re saying is that’s probably the last place that someone’s going to get a permit to carry a gun. How’s that?” Roberts asked.

Underwood argued that though the risk may be different in a city than in a rural area, the consideration of pubic safety is different as well.

Thomas then added: “It’s one thing to talk about Manhattan or NYU campus. It’s another to talk about rural upstate New York.”

11:01 a.m. ET, November 3, 2021

New York Solicitor General Barbara Underwood steps up to defend New York’s regulations

From CNN's Tierney Sneed

New York Solicitor General Barbara Underwood is arguing in defense of the gun regulations.

Her opening presentation highlighted examples in history she says are analogous to the restrictions under review in the case.

“New York is not an outlier in the extent to which the state restricts the ability to carry firearms in public,” she said.

11:00 a.m. ET, November 3, 2021

Gorsuch tees up potential for sweeping ruling

From CNN's Tierney Sneed

Paul Clement, who is representing petitioners Robert Nash, Brandon Koch and the New York State Rifle and Pistol Association, was questioned by several justices on how he would apply his arguments to restrictions on public carry of guns in certain places.  

Conservative Justice Neil Gorsuch asked Clement questions that got at how sweeping that court’s ruling could be.

He noted the request by some who filed friend-of-the court briefs that the court give guidance to lower courts on Second Amendment public carry cases that went beyond the details of the New York case. 

Gorsuch asked Clement to weigh in on the use of courts to apply balancing tests – rather than doing analysis of history, tradition and text -– in reviewing public carry cases. 

The question allowed Clement to argue that history, tradition and text should be the analysis lower courts use in any case concerning the carry of guns outside of the home. He also argued that if the court was instead going to use a balancing test, that it would use a “strict scrutiny” test, which would set the bar very high for a state’s regulation to be upheld.

10:55 a.m. ET, November 3, 2021

Breyer asks about "gun-related chaos"

From CNN's Dan Berman

Justice Stephen Breyer noted that the New York law requires applicants to have good moral character but that circumstances in society can change around them.

“I think that people have good moral character that start drinking a lot and may be there for a football game or some kind of soccer game can get pretty angry at each other. And if they each have a concealed weapon, who knows?”

Answering his own question, Breyer said: "There are plenty of statistics in these briefs to show there’s some people who do know and a lot of people end up dead. Okay? So what are we supposed to do to sort of float around like with NYU and say, ‘hey, oh, this is the rule. It seems to work out in upstate New York.’ We don’t know of course, and we do know that your client is carrying a concealed weapon because he has a right to in some instances, and even following Heller and following the history, which I thought was wrong."

He continued: “Even so, what are we supposed to say in your opinion, that is going to be clear enough that we will not produce the kind of gun-related chaos?”

10:45 a.m. ET, November 3, 2021

Roberts and Barrett grill Clement on restrictions

From CNN's Tierney Sneed

Paul Clement, who is representing petitioners Robert Nash, Brandon Koch and the New York State Rifle and Pistol Association, got heat from several justices on how he would apply his arguments to restrictions on public carry of guns in certain places.  

Chief Justice John Roberts kicked off the line of questions by asking Clement about restrictions on public carry in places that serve alcohol and football stadiums. 

Justice Elena Kagan picked up the baton with questions about prohibitions in New York subways and college campuses in the city.  

Clement was able to say that some of the prohibition in some of those locations would be permissible, but waffled on some of the other examples, arguing that it would depend on the court’s historical analysis of those particular kinds of places. 

Justice Amy Coney Barrett jumped in to ask about prohibitions on guns in Times Square on New Years Eve. 

“If you concede, as I think the historical record requires you to, that states did outlaw guns in sensitive places, can’t we just say Times Square on New Year’s Eve is a sensitive place because now we’ve seen you know, people are on top of each other?” Barrett said. “We��ve had experience with violence. So we’re making a judgment it’s a sensitive place.”