One of the arguments raised by New York Solicitor General Barbara Underwood in her defense of the state’s carry permit laws is that, if the average citizen could carry a firearm in self-defense in New York City, then it would be sheer pandemonium on the city’s public transportation system. Why, you’d have guns in subways, on ferries, on buses if the state were forced to adopt a “shall issue” standard for issuing concealed carry licenses. Mayhem would surely ensue in Gotham if that came to pass.
I know what you’re probably thinking, and as it turns out, Supreme Court Justice Samuel Alito was on the same page as many gun owners and Second Amendment supporters when he heard Underwood’s argument.
“All these people with illegal guns: They’re on the subway, walking around the streets, but ordinary, hard-working, law-abiding people, no,” Alito told the Empire State’s solicitor general Barbara Underwood. “They can’t be armed.”
They can’t, though if you’re one of the lucky few to possess a NYPD-issued carry permit you are already allowed to bring your gun onto the subway or public bus. But let’s be honest here; most of the New York City residents who’ve been given permission to exercise their right to bear arms are wealthy enough that they’re not generally relying on public transportation to get them around town. Instead, as Samuel Alito pointed out, it’s the working class who are prevented from carrying in self-defense.
In a colloquy with New York’s solicitor general, Justice Alito expresses empathy for working class New Yorkers forced to brave the city’s allegedly crime-infested subways on the way home from work, asking: Don’t they need to carry concealed guns to protect themselves? pic.twitter.com/n485J1Qy2m
— Mark Joseph Stern (@mjs_DC) November 3, 2021
As you can see from the snark by Slate’s Mark David Stern in the tweets above, he’s a little salty about the fact that the Court appears ready to acknowledge that the right to bear arms actually exists in the Constitution and isn’t a figment of gun owners imaginations.
There’s little question that Alito and his conservative colleagues will invalidate New York’s “good cause” requirement and compel the state to hand out concealed carry licenses to any gun owner who wants one. At this point, the bigger issue—one Justice Neil Gorsuch raised repeatedly—is how the court will do it, and what ramifications its decision will have for other gun laws. Will the court deploy expansive rhetoric that undermines other gun restrictions? There are plenty under fire in the lower courts right now, including limits on open carry, bans on assault weapons and large capacity magazines, waiting periods, age restrictions, caps on the number of firearms an individual can buy each month, and more. Courts have generally upheld these laws, though conservative judges are increasingly eager to strike them down. Bruen could open the door to a new era of Second Amendment jurisprudence in which all firearm regulations are inherently suspect. All because five or six justices convinced themselves that the framers would’ve wanted to flood the New York subway with guns.
I have no idea how the framers would have felt about guns on subways specifically (or subways in general, though I suspect that Ben Franklin at least would have been enthralled by the technology, but I have a pretty good idea of how they would have viewed New York’s subjective and capricious permitting system that not only deprives the average citizen of their right to bear arms in self-defense but declares them to be “violent felons” if they dare carry a legally-owned pistol without an unrestricted carry permit. After all, it was the framers who declared that the right to keep and bear arms shall not be infringed. It wasn’t until the 1900s that the Sullivan Act was imposed on New Yorkers wanting to carry a firearm for self-defense.
The Supreme Court hasn’t weighed in on the right to bear arms on public transportation before, and there’s no reason why the Court would have to do so in the case challenging New York’s carry permitting scheme. But if they do decide to include discussion about where the right to bear arms extends, they can always look to cities like Philadelphia, Dallas, and Atlanta, which are all located in “shall issue” or Constitutional Carry states, and all of which allow those with valid concealed carry licenses to use public transportation while armed. There haven’t been any issues with SEPTA trains or DART buses turning into the “Wild West” simply because lawfully-carried guns are present, and there’s no reason to believe that New York would be any different if the city is forced to adopt a “shall issue” licensing system.
Personally, I don’t see any reason why the right to bear arms should be banned from public transportation anymore than it should be banned from the public square. It’s one thing for private businesses to declare themselves “gun-free zones,” but I have a real problem with government agencies doing the same. I’m not convinced that the Court’s decision in NYSPRA v. Bruen is going to be expansive enough to get into the constitutionality of gun bans on public transportation, particularly since the New York mass transit system already allows those with city-issued permits to carry on buses and trains, but if the justices do decide to weigh in on the issue, my guess is that an outright ban would be seen as an infringement, and not a mere regulation, of the right to bear arms.