Brian Lehrer: Brian Lehrer on WNYC. If you haven't heard yet, the Supreme Court this morning struck down a New York State gun law which lets them strictly limit who with a gun license can carry those guns in public. I'm going to read a little bit from the New York Times version of the story on this. It says, "The ruling was only the court's second major statement on the scope of the individual constitutional right to keep and bear arms and its first on how the right applies to firearms in public places. The decision has far-reaching implications, particularly in cities that had sought to address gun crimes by putting restrictions on who can carry them."

The time says the ruling comes after a spate of mass shootings reinvigorated the debate over gun control. The Senate, it reminds us, is close to passing a bipartisan package of gun safety measures, a major step toward ending a year's long stale mate in Congress. The vote on the Supreme Court was six to three with the court's three liberal members in dissent. We'll hear about the dissent in a minute from Emily Bazelon and Herb Pinder.

The New York law requires that people seeking a license to carry a handgun outside their homes show a proper cause. That's the law that was struck down. "Now, California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island have similar laws," according to briefs filed in the case, says The Times.

Two men who were denied the licenses they sought in New York sued saying that the state makes it virtually impossible for the ordinary law abiding citizen to obtain a license. The two men, Robert Nash and Brandon Koch, were authorized to carry guns for target practice and hunting away from populated areas, state officials told the Supreme Court, and Mr. Koch was allowed to carry a gun to and from work, but Barbara Underwood, New York solicitor general told the justices in a brief, "Nash and Koch did not receive unrestricted licenses because neither demonstrated a non-speculative need, interesting term, to carry a handgun virtually anywhere in public. There's a little background on this case. Here's a little bit of what Governor Hochul said just a short time ago reacting to the ruling.

Governor Hochul: I'm prepared to call the legislature back in a session to deal with this. We've been in contact with the leadership. We're just looking at dates. Everyone wants a little bit of time to digest this, but I will say we are not powerless in this situation. We're not going to seed our rights that easily, despite the best efforts of the politicized Supreme Court, the United States of America. We have the power of the pen.

Brian Lehrer: Joining us now, Emily Bazelon, creative writing and law professor at the Yale Law School. She's also The New York Times Magazine correspondent and a weekly member of the Slate Political Gabfest, and we have Herb Pinder, WNYC and Gothamist race and justice editor who wrote a really interesting long article a few weeks ago that I read from earlier in the show giving some of the century-plus long background on this concealed carry law. Emily and Herb, good morning. Thank you for coming on with us.

Herb Pinder: Good morning.

Emily Bazelon: Thanks for having us.

Brian Lehrer: Emily, where do you start? Put on your law professor hat and tell us what you've been reading so far this morning with your reading glasses and your magnifying glass that I may not have seen so far.

Emily Bazelon: Well, I'm trying to figure out how broad this ruling is. On the one hand, the big move that Justice Thomas's opinion for the majority makes is to say that when judges are looking at gun regulations passed by states and cities, they can only consider history. They can only consider whether the gun safety law issue is consistent with the way in which guns were regulated early in American history. That's really different from also weighing the governmental interest that might exist to restrict access to firearms.

On the other hand, in his concurrence, Justice Kavanaugh says, "We're only talking about the laws of six states, including New York, that have discretion for gun regulators, discretion for state officials in deciding whether to grant a license." Kavanaugh is saying there are 43 states that have laws that have fingerprinting requirements, background checks, other steps you have to go through before you can get a gun license, but they don't have this extra discretion that New York was granting and that's the distinction he is making there.

Brian Lehrer: Herb, have you been able to figure out yet whether this means anybody with a gun license in New York automatically converts that without applying for anything different to an open carry or a concealed carry, I should say, but in public license to carry firearms?

Herb Pinder: Brian, we're still plowing the through the opinion, but it's clear that if you are a New Yorker with a handgun permit, it's certainly easier today to carry in public. The court did not throw out the proper cause requirement in its entirety. Those owners will still have to jump through hoops, but what is clear is that it'll be an objective test whether there's an attachment that the applicant perhaps has to take a firearm's safety course, or certainly there's an age requirement or certain other objective measures. Again, this discretion latent framework is going to be out the out the window.

Brian Lehrer: You wrote already this morning that the court ruled that New York's framework for granting concealed carry handgun permits gives too much discretion to licensing officers, usually a local judge or law enforcement agency in violation of the Second Amendment's right to bear arms, but too much discretion to licensing officers doesn't necessarily mean they're not entitled to any discretion. I think that's what I heard you saying in your previous answer, there would still be some discretion, they're just going to have to rewrite the law to set up some objective standards for who has a reason to carry guns in public.

Herb Pinder: Sure. Just going back to the oral arguments in the case, the court, at least the conservative majority was really concerned about just this wide latitude given to the permitting officer. For example, Justice Thomas, during oral arguments wondered just how rural place has to be before someone could get a concealed carry permit, Chief Justice Roberts wondered how many people were actually getting mugged in the woods? This was after the government had stated that it's easier to get a unrestricted concealed carry permit in the suburbs or rural areas. The court just was not satisfied that the state had a clear guidance for determining just who is deserving of such self-defense in public places.

Brian Lehrer: Here's a line, Emily, from the Thomas majority opinion, "In keeping with Heller," which is the 2008 Supreme Court decision that established the right to keep arms as an individual right in the first place and not just in the context of a well-regulated Militia, "In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the constitution presumptively protects that conduct.

That sounds sweeping with respect to a right to carry arms in public. If I understood Herb correctly, they still would give discretion to the states to set up some objective criteria for who needs to carry a weapon in public. How do you understand this decision in that context?

Emily Bazelon: I think that's right. What's happening here is the court is saying that the mistake New York made was to give what they call unchanneled discretion to licensing officials. They also don't like the idea that applicants for a license have to show a special need apart from self-defense. What they are still allowing are what they call objective licensing regimes, that like a fingerprinting, a background check, a mental health records check, and training and firearms handling. According to Kavanaugh's concurrence, those things are still allowed.

I think the other thing that is at issue here is what kinds of other restrictions can states put on people carrying and owning guns. The only examples that Thomas gives as being clearly constitutional that I see or the idea of limiting carrying a gun into a government building or a school, what he calls a sensitive place, as opposed to having a rule where you can't have open carry at all. That looks like a big shift.

Brian Lehrer: [crosstalk] How about a-- Oh, go ahead, Herb.

Herb Pinder: Brian, no, I was just starting to say that I think that's probably the next task, is just how broadly a state can define a sensitive place. Again, under existing federal requirements, you cannot bring a concealed weapon into a courthouse, or a federal government building, a national forest, airports, places like that. I can imagine state officials, I'm sure they've already done their homework and are looking for ways to bring more venues into that orbit. I don't know if that would include the subways, for example, or malls- [crosstalk].

Brian Lehrer: One that comes to my mind-- Yes, malls are a good example. Bars come to my mind right away. Are bars sensitive places? If you have drunk people with guns, are they by definition for serving alcohol sensitive places? How about rock concerts or other crowded musical events or other kinds of events, where a gun in the crowd in the hands of one person who goes off could be extremely dangerous? Emily, do you see this as a next level of argument here as to what kinds of private venues? Because it sounded like it was just government-sensitive places that got mentioned here as exceptions? Could be included in that?

Emily Bazelon: Yes, I think that Herb's right. There's going to be another round of cases about that. Just looking at the very limited examples that Justice Thomas is giving, in his majority opinion, it doesn't look like the court is planning to make a whole lot of room for that. One thing that's interesting that Thomas says is that-- He's basing all of this on the historical record, he's going back mostly to the 18th and 19th centuries and he says, "At that time," so this would be allowed, "Individuals could not carry deadly weapons in a manner likely to terrorize others." There's some room left there.

Then he also says, "States could lawfully eliminate one kind of public carry, concealed carry, so long as they left open the option to carry openly." That's different from how a lot of gun safety laws work now, where people get worried about open carry and there tends to be more room for concealed carry. There's a kind of flip going on there.

Brian Lehrer: The argument there is, it might actually be more protective of the public safety if people can be displaying their guns that they're carrying in public. Right now it's generally considered safer if they have to conceal them.

Emily Bazelon: Right, which seems to be somewhat in tension with this idea that you're not allowed to terrorize people by carrying your gun around, because sometimes we worry that if you're displaying a gun, for example, if people are protesting at the State Capitol, that that's menacing. All of these things are going to remain to be worked out in future cases.

Brian Lehrer: With Emily Bazelon from Yale Law School, New York Times, and Slate, and Herb Pinder, WNYC and Gothamist race and justice editor. Dwayne in Whippany, you're on WNYC. Hi, Dwayne.

Dwayne: Hey, good morning. Thanks for taking my call. I have to say that I just think this is just a horribly irresponsible ruling from the Court. I appreciate the deep dive that you guys are taking right now with it, but I'd like to just ask a question to all the participants. I'm reading the Second Amendment right now and it says, "A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Where does it say anything about self-defense?

This statement seems to me to clearly indicate this is about the common defense, the community defense. All of a sudden now, Roberts seems to be, or maybe the NRA, or just the whole school of gun-toters wants to make a self-defense argument.

Brian Lehrer: Dwayne, thank you very much. I guess they sort of dispensed with that in 2008 in the Heller decision on handguns in Washington D.C, Emily. Maybe it's worth a 30-second refresher on how they dismissed the well-regulated Militia clause of the Second Amendment.

Emily Bazelon: What happened in Heller was there was a big argument about history, about what that amendment meant at the time it was written. It was really fought on what are called, originalist grounds. What was the original meaning of the Constitution then? What did the words in the amendment mean? What about the fact that it's drafted in this way where it seems like it's missing commas or it has extra commas? It's a very confusing set of phrases.

Basically, the majority in Heller came down on the side of the idea that there was this individual right to bear arms, that it had to do with self-defense, that it was not just restricted to Militias. Justice Stevens wrote for the dissent and he said, "No, that's wrong, this is not about an individual right to bear arms."

If you talk to people who are constitutional scholars on this amendment, the kind of people who know the most about the history, for example, a law professor at Stanford, a history professor named Jack Rakove, Rakove and other people who filed a brief in that case for historians thought that Stevens had the better argument. They thought that the originalist argument for this very broad individual right to bear arms was not correct, but Justice Scalia had a majority. That is the interpretation of the Second Amendment that the Court was building on today.

Brian Lehrer: Ben in Brooklyn, you're on WNYC. Hi, Ben.

Ben: Oh, hey, how you doing, Brian? I'm in New York, but I've been through every iteration of gun ownership in New York, New Jersey, across the country. This is the result of-- New York City has the most draconian laws as far as a gun owner is concerned. New York City is the only state that I know of where you literally-- New York City, excuse me, the city, not the state, you have to show ID just to get the application to apply for a permit, and that is a target permit. Probably the vast majority of handgun owners in New York City have what's known as a target permit in which they're only supposed to have it in their home and they can go to the range.

Then there's a slew of laws which if the gun owner is not directly en route to the range or deviates in any way from going to the range, that they could fall under some type of illegality, in effect that they actually have the gun even in their vehicle. This law is going to affect New York, but it's really going to affect New Jersey, I would imagine, a lot more and in more immediacy because there's a lot more handgun owners in New Jersey where they have a firearms ID requirement.

I'll make it short. This boils down to states which are much more lenient like Utah and Florida, they have a [unintelligible 00:17:50] issue decree. Basically, if you apply and you pass a background check, and there's nothing that comes up, you will be issued a concealed carry within X number of days. If they don't process your paperwork or if they don't find a reason to say no within usually about 75 days, you will receive a permit.

New York, it's a complete opposite, New York and New Jersey, where you have the hodgepodge of different police chiefs. If you know someone in the department, they can just sign off and just say it's at the discretion of the police chief of that particular town, and I don't have to tell you how many different mayors there are in New Jersey, as to whether you get a concealed carry license.

In New York, as you guys mentioned, you need to show proof that you move X amount of money in large amounts and that's why you would need to have it. This law was way overdue, but it's really a result of the draconian nature that New York City has been applying their rules and regulations when it comes to over the course of the--

Brian Lehrer: Thank you very much for your perspective on this. Herb, that's an interesting take. Certainly, people who wanted some kind of loosening of New York's gun laws of how hard it is to get a license, in New York in particular, have been anticipating a ruling like this because they say there is just too much bureaucracy compared to even other places. I think it's also worth noting, since we keep talking about this in the context of New York because it was a New York-specific law that the Court overturned today, that this very much does affect New Jersey, the other core state in our listening area, because New Jersey also has a similar, but, as the caller was indicating, different law or set of laws around its hundreds of municipalities.

Herb Pinder: Yes, again, there are, I guess, five, six other states plus the District of Columbia that this ruling will most certainly affect, but it's important to keep in mind too that New York still has a tough gun ownership law. You still have to be at least 21, you still have to have no prior felonies or serious convictions, and you still have to be of "good moral character," which is a provision that some gun lovers oppose, but you still have to qualify to get a gun first. There still will be hoops to jump through in New York for securing a carrying permit, and especially unrestricted concealed carrying permit.

Brian Lehrer: Emily, I want to go to something in Thomas' majority opinion that we haven't brought up yet, which maybe you can explain. In the intro, he said the court is holding, "That the 2nd and 14th Amendments protect an individual's right to carry a handgun for self-defense outside the home." What does the 14th Amendment have to do with this? We always talk about the Second Amendment, of course, because that's the right to bear arms.

Emily Bazelon: A couple of things, one is that for a long time, the court used to worry about whether the first 10 amendments applied to laws passed by the states because the Bill of Rights says that Congress shall make no law or Congress shall do this, it doesn't say anything about state government. There was this whole doctrine, it was called Incorporation. Do you incorporate the bill of rights? Then the way the court resolved that was effectively to say yes through the 14th Amendment. That's one reason that Thomas brings it up here.

The second is that Thomas has a whole part of his opinion that's about the 14th Amendment and the history of it and the way in which one of the considerations of that part in our history was really preventing Black people from owning guns, and that problem of racist history is, of course, useful to Thomas because he wants to say that there are these long-standing inequities that were part of restricting access to guns, and it's easier to make that argument around the time of the 14th Amendment.

Brian Lehrer: Herb, do you want to talk about some of the racial and even racist history of New York's gun laws, even though a lot of progressives are unhappy today with the way the Supreme Court overturned it? Your article on Gothamist recently was so fascinating in that respect going back to 1911.

Herb Pinder: There's a long history, and it won't surprise anyone that there were efforts to keep guns out of the hands of Black people, out of the hands of Italian immigrants, and that fear and concern of Black people defending themselves in race riots of years ago. That's been a thread through New York's gun laws through the many, many decades. It's also in the view of many, including the Bronx Defenders, the broken defenders and some others who filed a [unintelligible 00:23:19] of the court briefs in this case, it also explains why the illegal gun laws in New York are so stringent.

Something else to keep in mind too is that, by some studies, New York's tough gun laws have also saved Black lives. There's one statistic quoted in one of the briefs that says the Black homicide rate in New York over, I guess, a five-year period is about 50% less than the national average, and the changes is attributed to the state tough gun laws.

Brian Lehrer: Herb Pinder, WNYC and Gothamist race and justice editor, and Emily Bazelon, staff writer for The New York Times magazine co-host of Slate's Political Gabfest podcast and creative writing and law fellow at the Yale University of Law School. Thank you so much for your quick read on this Supreme Court decision today and all the analysis you've given us just now.

Herb Pinder: Thanks, Brian.

Emily Bazelon: Thanks, Brian.

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