Live updates: Gun rights case goes before Supreme Court | CNN Politics

SCOTUS hears oral arguments on Second Amendment and gun control laws

Melissa Mahtani

Meg Wagner

By Melissa Mahtani, Melissa Macaya and Meg Wagner, CNN

Updated 12:37 PM EDT, Wed November 3, 2021

US President Joe Biden speaks about gun violence prevention in the Rose Garden of the White House in Washington, DC, on April 8, 2021. - Biden on Thursday called US gun violence an "epidemic" at a White House ceremony to unveil new attempts to get the problem under control. (Photo by Brendan SMIALOWSKI / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

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Biden vows gun measures won't impact 2nd Amendment rights

0:58 • Source: CNN

US President Joe Biden speaks about gun violence prevention in the Rose Garden of the White House in Washington, DC, on April 8, 2021. - Biden on Thursday called US gun violence an "epidemic" at a White House ceremony to unveil new attempts to get the problem under control. (Photo by Brendan SMIALOWSKI / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

Biden vows gun measures won't impact 2nd Amendment rights

0:58

What you need to know

The Supreme Court took up another blockbuster issue today as it considered the scope of the Second Amendment’s right to bear arms.
The court seemed ready to expand Second Amendment rights after hearing oral arguments and expressing skepticism about a New York law that restricts people from carrying concealed handguns outside the home for self-defense.
It’s been more than a decade since the court has decided a major Second Amendment case. A decision on this case is expected next spring.

Our live coverage has ended. See how the arguments unfolded in the posts below.

16 Posts

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.

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.”

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.

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.

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.”

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.

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.

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?”

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.”

Clement says concealed weapons permits should be like hunting permits

From CNN's Dan Berman

Paul Clement, center, former Solicitor General and attorney representing the New York State Rifle & Pistol Association and other petitioners, exits the Supreme Court after oral arguments in the Second Amendment case in 2019 in Washington, DC.

Paul Clement, center, former Solicitor General and attorney representing the New York State Rifle & Pistol Association and other petitioners, exits the Supreme Court after oral arguments in the Second Amendment case in 2019 in Washington, DC.

(Drew Angerer/Getty Images)

Paul Clement sought to compare his client’s ask to get concealed carry permits to the process for obtaining a hunting license.

“One way to think about it is we’re asking that the regime work the same way for self-defense as it does for hunting,” Clement said.

“And the difference of course, you have a concealed weapon to go hunting, you’re out with an intent to shoot say a deer or rabbit which has its problems.” But when you’re carrying for self-defense, “you want to carry a concealed weapon,” he added.

Clement served as solicitor general during the Bush administration and is representing Robert Nash and Brandon Koch as well as the New York State Rifle and Pistol Association—an affiliate of the NRA.

Liberals question whether New York-style gun regulations are really ahistorical

From CNN's Tierney Sneed

The court’s liberal justices zeroed in on whether Paul Clement’s arguments hold up when the historical record was actually examined.

Clement served as solicitor general during the Bush administration and is representing Robert Nash and Brandon Koch as well as the New York State Rifle and Pistol Association—an affiliate of the NRA.

The justices noted that states like Alabama, Georgia and Louisiana – states that have lax gun laws now – at some point in their history had prohibitions on the carrying of concealed weapons.

“It seems to me that I don’t know how I can pass through all that history — well, without you, sort of making it up — and saying there’s a right to control states that has never been exercised in the entire history of the United States — as to how far they can go and say, this poses a danger,” Justice Sonia Sotomayor said.

Breyer questions use of history in courts' reviews of gun regulations

From CNN's Tierney Sneed

Justice Stephen Breyer took aim at how some of the court’s conservatives would like to approach reviewing gun regulations.

Justices like Brett Kavanaugh and Amy Coney Barrett have pushed back on the balancing tests some courts have used in gun regulation cases. They instead have advocated for looking at history and the tradition around the Second Amendment, in addition to its text, when assessing regulations’ compliance with the constitution. Justice Clarence Thomas kicked off the questioning Wednesday by asking Paul Clement about how to use history to analyze cases.

Breyer, following up and seeking to punch a hole in the conservative arguments, noted that in legal briefs, history professors make different and contradicting arguments about what the history says. “How are we supposed to deal with that?” he asked.

Clement is arguing on behalf of the people and gun rights groups challenging the New York regulations.

Clement served as solicitor general in the George W. Bush administration and is a go-to lawyer for conservative causes being argued in the Supreme Court.

Justice Neil Gorsuch participates in argument remotely as he battles stomach bug

From CNN's Dan Berman

For the second day in a row, Justice Neil Gorsuch is absent from the courtroom with a stomach bug.

He’s participating in oral arguments remotely.

He has tested negative for Covid-19 and all the justices have been vaccinated.

Only journalists, lawyers and law clerks are actually sitting in the court room, six feet apart.

NOW: Supreme Court hears arguments on scope of Second Amendment and gun control laws

From CNN's Ariane de Vogue

Two days after hearing a major abortion case, the Supreme Court is taking the bench again to discuss another topic that bitterly divides the country: gun rights.

It’s been more than a decade since the justices have decided a significant Second Amendment case and now the conservative-leaning court has the opportunity to reexamine the scope of the right to keep and bear arms in a case brought by an affiliate of the National Rifle Association.

The court could potentially allow more guns to be carried on some of the busiest streets in the largest cities in the nation, at a time when the Biden administration has vowed to push for enhanced gun regulations.

In 2008’s District of Columbia v. Heller, the court held for the first time that the Second Amendment protects an individual’s right to keep and bear arms at home for self-defense. Except for a follow-up decision two years later, the justices have largely stayed away from the issue infuriating gun rights advocates and even some of the justices themselves.

Now, the focus will be on President Trump’s nominees, particularly Justices Brett Kavanaugh and Amy Coney Barrett, who signaled when they served on the lower courts that they think the court should change the way it evaluates gun regulations.

Read more about today’s oral arguments here.

How the newest Supreme Court justices could redraw the road map for the Second Amendment in courts

From CNN's Ariane de Vogue

The Supreme Court will hear oral arguments Wednesday in a case that could broaden gun rights nationwide and transform how the Second Amendment is interpreted in the United States.

On the surface, the dispute involves whether a New York law that restricts individuals from carrying concealed handguns outside the home for self-defense passes legal muster. The case is brought by two individuals and the New York State Rifle and Pistol Association, which is affiliated with the National Rifle Association.

The court’s six conservative justices could look skeptically at the broad reach of the law and could ultimately make it easier for individuals to carry arms for self-defense outside of the home.

But at oral arguments, all eyes will be on the court’s two newest members, Brett Kavanaugh and Amy Coney Barrett, to see how far they push their colleagues to do something more.

As lower court judges, the two Donald Trump nominees signaled that they think courts need to rethink the framework often used to measure how every other gun regulation should be evaluated.

If Kavanaugh and Barrett’s view of the issue prevails, critics fear the conservative wing of the court will not stop at allowing more people to carry guns in public for self-defense. Instead, the court could junk the legal test that has been used to uphold most gun restrictions in the lower courts over the past decade and provide what critics fear will be a road map for lower courts to look skeptically at a whole range of other gun laws.

Kavanaugh and Barrett, in their previous roles, rejected an approach grounded in balancing an individual’s right to bear arms against the government’s interest in passing the law at issue. Instead, they said judges should focus on the text, history and tradition — the intent of the founders — in weighing a gun restriction.

Your guide today's high-stakes oral arguments on the scope of the Second Amendment

From CNN's Ariane de Vogue

The conservative leaning Supreme Court will take up another blockbuster issue Wednesday, as they consider the scope of the Second Amendment’s right to bear arms.

It’s been more than a decade since the court has decided a major Second Amendment case, much to the outrage of supporters of gun rights as well as some of the justices themselves. Justice Clarence Thomas once said, for instance, that he thought the Second Amendment is a “disfavored” right on the court.

The new case is called New York State Rifle & Pistol Association v. Bruen, and it concerns a long-standing New York law governing licenses to carry concealed handguns in public for self-defense. It requires a resident to obtain a license to carry a concealed pistol or revolver, but they must demonstrate that “proper cause” exists for the permit.

How the oral arguments will unfold:

First up will be Paul Clement, one of the finest appellate lawyers in the country who served as solicitor general during the Bush administration. He is representing Robert Nash and Brandon Koch as well as the New York State Rifle and Pistol Association—an affiliate of the NRA. He told the justices that while his clients passed all the required background checks to obtain licenses to carry guns for hunting and target practice, they have not been able to establish the special need for self-defense that is required under the New York law in order to receive an unrestricted license. Clement is expected to tell the justices that the law makes it almost impossible for an ordinary individual to obtain a license because the standard is so demanding. He said in court papers that “good, even impeccable” moral character is not enough.
Next up will be New York Solicitor General Barbara Underwood. She is expected to cite the historical scope of the Second Amendment to argue that the law should pass legal muster. In court papers she told the justices that if they accept Clement’s arguments it would “break with seven centuries of history and have devastating consequences for public safety.” She said it could even threaten restrictions that states have adopted to protect the public in sensitive places like courthouses, airports, subways, houses of worship and schools.
The Biden administration is supporting New York. Principal Deputy Solicitor General Brian H. Fletcher is expected to tell the court that for centuries lawmakers have protected the public by passing reasonable regulations. “The Second Amendment protects an individual right to keep and bear arms,” Fletcher told the justices in court papers, “but that right is not absolute.”

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