Thread by @SCOTUSblog

Happening now: Oral argument in N.Y. State Rifle & Pistol v. Bruen, a major Second Amendment case about the right to carry guns in public. We'll be live-tweeting the argument here in this thread. You can also listen in live here: supremecourt.gov/oral_arguments…
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The court has gaveled into session. John Roberts notes that Neil Gorsuch, who has a stomach bug, is participating in arguments remotely for the second day in a row.

Arguing first: Paul Clement, who represents two individuals who applied for licenses to carry concealed handguns in New York but were rejected because they did not show "proper cause" or a "special need" for self-defense.

Clement begins by saying that New York's licensing regime attempts to "convert a fundamental constitutional right to a privilege."

Clarence Thomas asks the first question. He says if the court interprets the Second Amendment through the lens of history, it will have to do so "by analogy." And he asks for examples of analogous gun regulations from American history.

Clement says the only analogs that restricted gun rights to the same degree as the New York law here were a small number of post-Reconstruction laws that essentially eliminated the right to carry firearms (and were struck down by courts at the time).

Thomas: In order to discern the original meaning of the Second Amendment (which applies to the states through the 14th Amendment), do we look at how it was understood at the time of the founding or the time that the 14th Amendment was ratified?

Clement's answer: The time of 14th Amendment ratification is probably more relevant, but that history and understanding won't be "radically different" from the time of the founding.

Elena Kagan jumps in to ask: Why should we limit ourselves to early American history when D.C. v. Heller (the landmark decision that recognized an individual right to keep guns in the home) approved of 1920s-era limits on possession by felons and people with mental illnesses.

Clement and Stephen Breyer spar over the difference between carrying guns for hunting and carrying guns anywhere in public for self-defense. “What we’re asking for," Clement says, is that New York's regime should "work the same way for self-defense as it does for hunting.”

Sonia Sotomayor presses Clement on the historical argument. There is not the same volume of historical evidence endorsing the carrying of concealed weapons in public, she says, as there was in Heller, which involved only keeping guns in the home.

Roberts asks Clement what sorts of places the government could exclude guns without violating the Second Amendment. Educational campuses? Places where alcohol is served? Football stadiums?

Clement says: Government can prohibit weapons in "sensitive places," and that would include schools. Bars or stadiums would be a tougher call, he says.

Kagan follows up on Roberts' question and asks whether New York could prohibit the carrying of guns on the New York City subway. Clement doesn't directly answer but says his clients (who live in upstate New York) aren't looking to carry guns on the subway.

Amy Coney Barrett asks her first question of the day. She homes on in the phrase "sensitive place." Would Times Square on New Year's Eve be a "sensitive place" where the government could prohibit concealed carry?

Clement concedes that "there are a lot of reasons" for New York City to have different regulations than upstate New York. But he says the government still can't eliminate the right to carry guns from everyone who lives in the city.

Breyer asks about the real-world consequences of allowing a robust right to concealed carry. He posits thousands of people at a sports event who might become angry. "And if they each have a concealed weapon, who knows? ... A lot of people end up dead."

Clement argues that many large American cities have far more permissive gun laws than the one being challenged here. And they haven't experienced major problems with gun violence, he says.

Clement invokes the city of Chicago, which he says has a "shall issue" licensing regime. That prompts this riposte from Kagan: "Most people think that Chicago is the world's worst city when it comes to gun violence. ... Chicago doesn't think that, but everybody else thinks that."

Kagan is now pressing Clement on how the court is supposed to use the history of gun rights to interpret the Second Amendment in the 21st century. "We realize the world has changed and regulatory needs are very different," Kagan says.

More from Kagan: "If we tried to copy history, we’d find ourselves in a world where states would have to say, 'You can’t carry it concealed; you have to carry it open.'"
Clement acknowledges "the norms of the times have flipped" when it comes to concealed carry vs. open carry.

Gorsuch, participating remotely, asks about the Statute of Northampton, a 1328 English statute that restricted guns in public. Supporters of gun control hold up that law as an example of hundreds of years of common-law history that informed the drafting of the Second Amendment.

Clement responds that the Statute of Northampton was intended only to prohibit carrying guns for the purpose of terrorizing the public; it wasn't a blanket prohibition.

Brett Kavanaugh makes his first remarks of the day. He suggests that the core problem with the New York licensing regime is that it gives officials too much discretion to grant or deny concealed-carry licenses based on subjective criteria.

Kavanaugh also asks Clement how SCOTUS should give more guidance to lower courts interpreting the Second Amendment. Clement says: Reiterate the Heller decision's command to analyze the amendment in light of text, history, and tradition.

Clement: “Whatever was the case in Heller, we now have 13 years of experience with lower courts applying the test, and in our view, they’ve made a muddle of it."

Clement has finished his argument. Now up: Barbara Underwood, New York's solicitor general, defending the New York law.

Underwood begins by saying that, for many centuries, governments have restricted the carrying of guns in public to protect public safety. That history begins in the 14th century and continues through the American founding and through the 19th century.

"Many ordinary people have received carry licenses in New York state," Underwood says. She suggests that, if the court has questions about how precisely the state's licensing system works, the court could remand the case back to the lower courts for further fact-finding.

Both Thomas and Roberts press Underwood at length on her point that people can more easily receive unrestricted concealed-carry permits if they live in rural areas.

Roberts: “How many muggings take place in the forest?”

Underwood's response: It may be true that there are different self-defense needs in a city as compared with rural areas, but there are also different public-safety imperatives.

Alito is now pressing Underwood on the same issue. He invokes a hypothetical late-night worker in Manhattan who must commute through a high-crime area on the bus or the subway after midnight. That's not enough for the worker to receive a concealed-carry permit? Alito asks.

Underwood confirms that merely working or commuting in a high-crime neighborhood is not a "special need" that entitles someone to have a permit.

Alito responds, "How is that consistent with the core right to self-defense that is protected by the Second Amendment?"

More from Alito: "All these people with illegal guns -- they’re on the subway, they’re walking around the streets. But the ordinary hardworking people, no, they can’t be armed."

Kavanaugh asks: What’s the problem with a "shall issue" licensing regime?

Underwood: They multiply the number of firearms that are being carried in highly densely populated areas. They greatly proliferate the likelihood that mistakes would be made, fights would break out.

Kagan asks about local flexibility. It seems "completely intuitive," Kagan says, that Wyoming and New York should have different gun regulations, or that upstate New York and NYC should have different regimes.

But, Kagan notes, it's hard to reconcile the principle of local flexibility with the fact that we're dealing with a constitutional right. Sotomayor reiterates that point. They ask Underwood to explain why greater flexibility is justified here.

Breyer brings up an amicus brief from social-science and public-health researchers who present statistics showing more violent crime in places with more permissive concealed-carry laws. That brief is here: supremecourt.gov/DocketPDF/20/2…

In a tense moment, Alito suggests to Underwood that New York's brief "got a little overly enthusiastic" in its summary of the history. He points to a specific quote in the state's brief (on page 23) that, according to Alito, omitted an important word.

Barrett asks a simple question: Do you think Heller was correctly decided?

Underwood: "I think there is a lot of support, historically or otherwise, for it, so I am quite content to treat it as rightly decided. ... I have no quarrel with Heller."

Barrett follows up by asking if the court's analysis of historical sources in Heller constitutes binding precedent.

Underwood: It would be odd and inconsistent with general practice to treat every sentence or every reference to a historical source as controlling for all time.

Underwood has concluded her argument. Now up: Brian Fletcher, the U.S. principal deputy solicitor general, representing the Biden administration, which is supporting New York in the case.

Fletcher begins by arguing that New York's concealed-carry law is "firmly grounded in our nation’s history and tradition of gun regulation." He lists specific examples of analogous state laws from the 19th century.

Roberts questions Fletcher on the idea that a constitutional right can be subject to a permitting regime. "The idea that you would need a license to exercise a right is unusual with regard to the Bill of Rights," Roberts says.

In response, Fletcher suggests that it's improper to compare the Second Amendment right to other constitutional rights with their own histories and traditions.

Fletcher says states have made many different choices with respect to regulating firearms. The question is whether the Constitution takes New York's century-old licensing law off the table. Fletcher says history shows the answer is no.

Alito asks about evidence that the original impetus for New York's licensing law was to target immigrants and members of other disfavored groups. Fletcher says he doesn't think there is persuasive evidence suggesting that was the true impetus for the law.

Sotomayor asks how Fletcher would characterize the extent of the Second Amendment right to carry guns outside the home. Fletcher says the amendment certainly protects that right, but its scope can be determined by looking at history and tradition.

Kagan asks: If the court invalidates New York's licensing regime, how would that affect policing and public safety?

Fletcher: We share New York's concern that having more guns on the street increases the danger of encounters between citizens and law enforcement.

Gorsuch asks what's the appropriate test for analyzing public-carry regulations. Strict scrutiny? Intermediate scrutiny? Or a "text and history" approach? He says that lower courts are in disarray on this issue.

Fletcher's answer: Start with text and history, and if the regulation passes muster, then the inquiry ends there. But he concedes that “there may come a point … where history gives out.” In that case, the proper method is something akin to intermediate scrutiny.

Fletcher's argument has concluded. Clement now has a few minutes back at the lectern for rebuttal.

He says New York's law "deprives a typical New Yorker of their right to carry weapons for self-defense."

On the issue of the public-safety impact of permissive gun rights, Clement responds to Breyer's invocation of the social scientists' amicus brief by urging the court to read a brief from political economist William English, who draws different conclusions: supremecourt.gov/DocketPDF/20/2…

Clement wraps up by emphasizing that, as a result of New York's restrictions, people end up being charged as "violent felons" merely for attempting to exercise their constitutional right to carry a gun for self-defense.

He invokes an amicus brief from NYC public defenders who make the same point about people being branded as "violent felons" simply for carrying a gun without a permit. They argue that Black residents are disproportionately harmed by the regime: supremecourt.gov/DocketPDF/20/2…

That's it for Clement's rebuttal. Almost exactly two hours after the argument began, Roberts gavels the session to a close.

Thanks for following along, and stay tuned for full analysis of today's argument from @AHoweBlogger on SCOTUSblog later today.