The Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen is expected to be one of the last opinions released this term; likely being released in early June. And while the bulk of the opinion is probably already written at this point, the shooting in a New York City subway this week has prompted some gun control fans to revisit the oral arguments held in the case last November, when the issue of carrying on public transportation was a topic of discussion among the justices and attorneys.
During oral arguments, state gun rights advocates and some justices suggested that the law is unconstitutional because it asks applicants to explain themselves in a manner that is not required of those seeking to use other constitutional rights, such as those outlined in the First Amendment. Court watchers have predicted that this uber-conservative Supreme Court may well strike down the law, which was adopted in New York in 1911. That, in turn, could mean more concealed weapons across the state, and, concerningly, across the city.
Roberts signaled an openness to at least considering the ramifications of overturning the law, specifically on how it might impact public safety in the city. In what turned into a “sensitive places” discussion, Roberts listed off a number of examples of situations where an expanded concealed carry law might present serious danger — university campuses, sports arenas, anywhere where alcohol is served.
Kagan backed him up: “What the Chief Justice is trying to do is figure out how those cash out in the real world. So I’ll give you a few more. New York City subways.”
There are, of course, enough conservatives on the bench to form a majority even without Roberts.
As Talking Points Memo indicates, the question of lawful carrying on the New York City subways came up in the context of “sensitive places,” but as it turns out, the city doesn’t currently bar those with a rarely-issued NYC carry permit from carrying on the subway or city buses. Maybe that’s because city officials don’t think there are enough concealed carry holders in the city to worry about, or maybe it’s because not many of the individuals who’ve been granted a carry permit actually use public transportation, but whatever the city’s reasoning, the subways aren’t off-limits to lawful concealed carry.
Of course, if SCOTUS strikes down New York’s “may issue” laws as a violation of the Second Amendment, you’d better believe that city leaders will immediately demand all public transportation be “gun-free zones”, even though that designation won’t stop a single criminal from carrying out an assault or attack of their own. The shooting suspect in the subway attack didn’t possess a license to carry in New York City, but did that stop him in any way from illegally carrying a gun onto a subway car and targeting his fellow passengers? Not at all, and any rule barring the lawful carrying of guns on public transportation will fall on those New Yorkers who simply want to be able to protect themselves as they go about their daily routine in an increasingly dangerous city. Violent, deranged, and criminally-minded individuals will simply continue to ignore the law as they do right now.
The issue of concealed carry bans on public transportation hasn’t been the focus of any litigation heard by the Supreme Court, and despite the brief discussion during oral arguments in Bruen it shouldn’t be a huge factor in the Court’s decision. It could very well end up being one of the subjects of any post-Bruen litigation that emerges from New York City’s response to what the Supreme Court says in its upcoming opinion, however, because there is no way the city is going to willingly adopt any policy making it easier for the average citizen to keep and bear arms in self-defense.