Thread by @stevenmazie

We’re two hours away from gun-rights showdown at the Supreme Court.

I will be tweeting and commenting in this space during the 70-plus minute oral argument.

https://twitter.com/stevenmazie/status/1455729255141322753

An interesting wrinkle: the progressive left is somewhat at odds with itself in this case. Gun control advocates oppose broadening the right to bear arms while racial-justice activists deplore the discriminatory manner in which states decide who gets to carry a concealed weapon.

The argument begins at 10 AM and you can listen via a button on the Supreme Court homepage supremecourt.gov

ORAL ARGUMENT BEGINS

Paul Clement, SG under President Bush and one of the most talented & prolific Supreme Court litigators (primarily for conservative causes), takes the lectern to argue against New York's gun licensing law

Clement: text of 2A confers right not just to keep but to bear arms outside the home for self-defense. NY now admits that, but that admission "dooms" New York's law

Clement: this is not a "sensitive place law" but a "conversion of a constituitonal right into a privilege".

"That is not how constitutional rights work."

NY is out of line with 43 states that allow carrying for self-defense without a special justification.

Justice Thomas: what's a good analogy btw this matter and historical practice?

C: certain types of firearms were barred, or barred in particular places, but never was there a general restriction on a typical law-abiding citizen

Thomas: should we look at the founding or the time when the 14th amendment was adopted (as this applies to the states under the due-process clause)?

C: not much of a difference

Justice Kagan: in Heller, we put the stamp of approval on laws that bar certain people from possessing weapons (such as felons), which come from the 1920s, right?

C: yes, but those adjustments can be made; post-1871 history should generally not be consulted

Breyer: (1) lots of briefs disagree on which way the history points - this is a wonderful case for showing both sides; and (2) what does NY really do? No trial, no proceeding, no facts on what's happening

C: both plaintiffs sought and were denied concealed carry licenses for no good reason, that's the basic fact.

Kagan: you're saying in your BRIEF that it's a regulatory scheme that deprives MOST PEOPLE of their gun rights, not really focusing on these two indivdiuals

C: the regime is problematic on its face - you have to show you have a need that separates you from generalized community

Breyer: you want NO restrictions?

C: you can ban guns in sensitive places, but can't deny a concealed carry license to someone just because they don't have an extra good reason to carry a gun for self-defense

Sotomayor: those other 43 states that allow what you want NY to allow have many different regimes over the years/decades/centuries. Most of them didn't give unrestricted carry until very recently. The main takeaway from history: states get a lot of deference on how to handle

[Sotomayor is going on for quite a while and Clement is showing some restraint where he has often been liable to interrupt her in previous oral arguments.]

Sotomayor: why is a good cause requirement for a license any different than Civil War and subsequent practice laying out discretionary gun rights for some individuals?

CJ Roberts: Must allow carrying in any place "typically open to the general public." What about university campuses?

C: That qualifies.

Roberts presses on: what about places where alcohol is served?

C: that would be a tough case; probably not OK to limit gun carrying there

Roberts: football stadium?

C: [no real answer]

C: sensitive place restrictions are a different animal from a carry restriction; in some places, weapons are out of place...

Kagan: what about NYC subways?

C: you'd have to go thru the analysis [hemming and hawing] - I don't know how those are going to cash out in particular places

HE HAS NO ANSWER

I've never heard Paul Clement stuggle like he's struggling right now.

Clement insults NYU by saying it has no real campus. Also avoids the question.

What about stadiums, again?

C: I think they might well be able to...

You can't get into Yankee Stadium without a ticket, so a private entity could restrict access...

Justice Barrett: Times Square on New Years Eve is a senstive place, right?

C: that's really a time, place and manner restriction; there are no-weapons zones

Justice Alito swoops in to save Clement: let's analyze the sensitive place question as a q of where people need to be protected, as in a courtroom. yes?

C: maybe but I'm reluctant to go that route b/c I worry the state would rope off too much of the city for gun toting

Clement: you can't deny NYC residents their rights to carry a gun.

Wait was one of the questions presented: "Does New York University have a real campus?"

I missed that one in the briefs.

Clement answers Justice Breyer by pointing to the 43 states that have looser gun licensing: they have not had "demonstrably worse problems" with gun violence than the 5 or 6 places like NY

Kagan [making reference to a perennial GOP talking point]: most poeple think Chicago is the world's worst place for gun violence!

C: maybe but look at San Diego! Phoenix! peaceful as heck.

Kagan: how is it consistent with the history that NY can ban open carry (as you admit) if it allows concealed carry? isn't the history exactly the other way around?

Kagan: how do we use history? 1920s when anti-felon-carrying laws were passed? with what sense of flexibility do you look at history? we realize the world has changed and regulatory schemes have changed?

If we tried to copy history, you have to carry it open!

Kagan: the history is replete with the distinction between the home (where you can have a gun) and the street (where there have been plenty of restrictions historically).

C: if not "text, history and tradition" rule, we would like strict scrutiny, but intermediate scrutiny requires narrow tailoring, so saying you can't carry without having an atypical need is not narrowly tailored.

Gorsuch asks about the 1328 Statute of Northampton! Finally we can all drink.

C: no reported cases of anyone actually being prosecuted for violating Statute of Northampton for carrying a firearm. Only carrying w intent to terrorize the people is a problem.

Clement with a subtle WHEN HARRY MET SALLY fake orgasm reference: "we'd like what they're having." (We want what those other 43 states provide.) My goodness.

Clement: lower courts have made a muddle of the Heller test; better to have a text, history and tradition test.

Barrett returns to the Times Square on NYE question. Should we really use the 1st am "time, place, manner" analysis and import into 2nd am?

C: don't take the doctrine "lock, stock and barrel" from the first amendment. Oh the puns.

BARBARA UNDERWOOD TAKES THE LECTERN TO DEFEND THE NEW YORK LAW

U: states have used a variety of regulations over the years. At least 20 states have prohibited ALL carrying of handguns or restricted it to those with good cause, so NY is not an outlier at all.

Thomas: you rely on the density of population in states like NY, meaning the more rural an area is, the less necessary a strict rule is. How rural does the area have to be before the statute is no longer reasonable?

U: these carry licenses are much easier to get in rural areas, and properly so.

Thomas: Mr Nash lives in a low-density area. Not Manhattan or NYU campus.

U: lives near Albany, an intermediate density area.

Roberts: unrestricted permits more available in less dense areas, right? But isn't there a greater need for self-defense in cities than in the woods?

U: history and tradition was to regulate most strenuously in places like fairs and markets (Statute of Northampton)!

U: the risks of guns people packed shoulder to shoulder are much higher

Roberts: fine to bar guns in Giants stadium, but what about out on the street? How many muggings take place in the forest?

U: dunno, but rapes and robberies happen on deserted bike paths...

Alito: ordinary law-abiding citizens who feel they need a firearm for self-defense - someone in Manhattan like a nurse or an orderly who get off at midnight and have to commute home by subway/bus and walk thru high-crime area. Those people don't get licenses, right?

U: right.

Alito: How is that consistent with the core right to self-defense? Only guns for retired police officers and celebrities?

U: Nash got an extra permit to carry back and forth to work, but in NYC, the specter of armed people in subways is frightening

Alito: lots of illegal guns on the subways, but ordinary good law abiding people can't have legal ones?

U: the proliferation of guns on the subway is terrifying to many people

Kavanaugh: why not good enough to say, I live in a violent area and want to defend myself?

Kav: good enough to say you're a runner and thus subject to attack?

U: probably that gets you a license

Kagan: why better to allow greater flexibility here?

U: wide distribution of rural and urban areas, even within counties, so giving discretion re licenses to local judges to make the fact-finding makes sense.

Thomas: there are places in Central Park where you can't hunt, but other places in NY where you can, so why not tailor the sensitive places rules to each place?

Barbara Underwood is crumbling a little...

Kagan gives her a chance to explain why sensitive places wouldn't be a good replacement.

U: hard to set out from the start where all those places are. Times Square, eg, is crowded every night, not just on new year's eve.

Barrett: do you think Heller was rightly decided?

U: I have no quarrel with Heller.

Barrett: are we bound by the way we use history in that opinion?

Brian Fletcher begins

Roberts: it's unusual to condition a constitutional right on showing good cause. that's not how the first amendment works, eg

Fletcher: other states have made other choices, but NY should be permitted to retain this law. The 2nd amendment does not take it off the table. It has been in force for a century.

And that's a wrap. New York's law seems very unlikely to stand, though Justice Barrett seemed to wobble a bit. Seems it will be a 6-3 decision with the expected ideological split.