The Docket: Do You Have The Right To Carry A Gun Outside Of Your Home? : The NPR Politics Podcast The Supreme Court has already ruled that an individual has the right to bear arms in their own home, but next week it will hear arguments about whether or not that right goes beyond the home. The court will weigh individual rights against public safety at a time when gun violence has continued making national headlines.

This episode: White House correspondent Ayesha Rascoe and legal affairs correspondent Nina Totenberg.

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The Docket: Do You Have The Right To Carry A Gun Outside Of Your Home?

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(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

AYESHA RASCOE, HOST:

Hey, there. It's the NPR POLITICS PODCAST. I'm Ayesha Rascoe. I cover the White House.

NINA TOTENBERG, BYLINE: And I'm Nina Totenberg. I cover the Supreme Court.

RASCOE: And this is The Docket, our ongoing series where we break down the biggest legal questions of the day. And, Nina, it has been over a decade since the Supreme Court last took up a case involving gun rights. But next Wednesday, that's going to change. In 2008, the court ruled that the Second Amendment right to keep and bear arms, that that guarantees individuals the right to keep a gun at home for self-defense. But now in 2021, the question is how far a state may go in regulating an individual carrying a gun outside of their home. So, I guess, can you tell me a little bit more about this case?

TOTENBERG: This case comes from New York. It's the state's so-called proper cause law. It requires a license to carry a gun outside the home, and it restricts those licenses to people who are going hunting or to target practice and those who can demonstrate a need for self-protection, like a bank messenger carrying cash or a store owner who wants to keep a gun in his store for self-protection. The state, however, does not allow people to get concealed-carry permits just because they have kind of a generalized fear that makes them want to carry a gun. Instead, the applicants have to show a special or particular need to carry a gun.

The law is being challenged by the New York Rifle and Pistol Association, an arm of the NRA, and two men who live in upstate New York. One got a permit to carry a gun to and from work, and both got licenses to carry weapons for hunting and for shooting practice. But they were denied the right to carry guns outside the home as a general matter for self-defense, as opposed to showing that they faced any unusual threat.

RASCOE: So the core question in this case is, really, how far the right to bear arms goes beyond the home and how much that right can be infringed upon and whether you can carry a gun if you're just worried about crime in general. What are some of the arguments that you expect to hear?

TOTENBERG: You have correctly summarized this.

RASCOE: Great.

(LAUGHTER)

RASCOE: Because I am not a lawyer (laughter).

TOTENBERG: Well, I spoke to former Solicitor General Paul Clement, who represents the challengers in the Supreme Court. And he compares the right to carry guns outside the home to the right of free speech guaranteed by the Constitution.

PAUL CLEMENT: These are all rights that the founding generation thought were sufficiently important that we're going to enshrine them in the Bill of Rights. And I think that judgment means that the states have to respect those rights.

TOTENBERG: I also spoke with Richard Dearing. He's chief of appeals for the city of New York. And he says that the Second Amendment has to balance public safety along with the right to keep and bear arms.

RICHARD DEARING: I don't think we can forget we're talking about an instrument that is designed to kill people. I think the problem the petitioners have is that the public safety considerations are so tremendous and varied on the side of gun regulation in a way that is not equally true of other rights.

RASCOE: So really, this is a debate about individual rights versus the larger idea of public safety.

TOTENBERG: That's right. And the gun rights advocates claim that the right to keep and bear arms outside the home - bearing arms - is heavily weighted in their favor, with only a few exceptions for regulation. And one of the people I talked to about this is J. Michael Luttig, who served for 15 years as a federal appeals court judge, earning a reputation as one of the country's most prominent and conservative judges. And he pointed to the spontaneity of violence in American life, which is, of course, a matter of public safety when you're talking about - the minute you start talking about violence. And here he is.

J MICHAEL LUTTIG: Law-abiding citizens in an instant can become lawless citizens in the moment, a moment of passion, a moment of argument and, incidentally, increasingly, in the political moments of disagreement. I mean, do we really want as a society to be sitting in Yankee Stadium knowing that a large number of the attendees, you know, are carrying loaded weapons? I think not. And I don't think that that's what the framers of the Second Amendment thought, either.

TOTENBERG: Paul Clement agrees that local governments might well be able to ban guns at Yankee Stadium and other sensitive places. But so far, he's not come up with a principle to guide such exceptions to the rule that he advocates for generally allowing people to carry concealed guns in public.

CLEMENT: We don't tell the court what the limiting principles are in this case because I don't think this is the case to develop the scope of the limiting principles. We think this is a pretty extreme law that presumptively says if you're an ordinary citizen, you can't carry firearms at all for self-defense.

TOTENBERG: Now, I have to say that Luttig counters that with a long historical argument in which he shows that some of the early colonies and states did have laws that banned carrying guns in public. There's a counterargument on the other side, of course. And in the end, this is going to come down to what the justices of the Supreme Court think.

RASCOE: And, Nina, what do we know about where the justices stand on this? Obviously, it is a much more conservative court. So - but where do they stand on this issue of gun rights?

TOTENBERG: Well, all of the three Trump appointees have records that are very pro-gun rights. There are other justices on the court - Justice Thomas, Justice Alito - who have also voiced strong sympathy for gun rights. That makes five. They don't need Chief Justice Roberts' vote. And in the past, they needed Roberts' and Kennedy's vote. Kennedy is now retired. They don't need Roberts anymore.

RASCOE: So it could be a different outcome. We're going to take a quick break, and when we get back, we'll break down what the broader implications of this case might be.

(SOUNDBITE OF MUSIC)

RASCOE: And we're back. And, Nina, we just talked about the core arguments that are going to be made in this case, but let's talk about the broader legal consequences. And to do that, we brought in a Second Amendment expert to the podcast - Joseph Blocher. He is a professor of law at Duke University - you might have heard of that university - and co-director of the Center for Firearms Law. Welcome, Joseph.

JOSEPH BLOCHER: Thank you so much for having me.

RASCOE: So now I have a question for both of you. So we started this podcast talking about how it's been over a decade since the Supreme Court took up a gun rights case. It's avoided weighing in on these cases. But, like, why is that changing now? Why are they doing this now?

TOTENBERG: Well, the simple answer for me is that the court is changing. We now have a conservative supermajority, and many of those people have been pushing very hard to expand gun rights to be more analogous, I guess, to other rights specified in the Bill of Rights, like the First Amendment. It's not that they can't be regulated at all, but the regulations are very limited. In addition to that, it's an amazing thing, but gun rights, really, were sort of a settled question without any law for centuries, and it really wasn't until 2008 that the Supreme Court ruled for the first time, explicitly, that there is an individual right.

BLOCHER: Yeah, I agree. I would just add, to emphasize that last point Nina made, that for more than two centuries, there's not a single federal court case anywhere in the country striking down a gun regulation on Second Amendment grounds. It is just basically dormant as a matter of constitutional law. And really, that radically changes in 2008, with the court's decision in District of Columbia v. Heller. It basically inaugurated a brand-new constitutional right, which the justices in the lower courts are still working out the implications of. I mean, we've seen more than 1,500 Second Amendment cases in the last 13 years.

But with a few exceptions, the lower courts have been in agreement about the constitutionality of regulations - for example, prohibiting possession by people convicted of felonies or people who've been adjudicated mentally ill. It's really only with regard to a few questions, like regulations on public carry, which is what this case is about, where you've seen, really, the kinds of circuit splits that tend to get the justices' attention.

TOTENBERG: Joseph, you know, most states already have, virtually, unrestricted rules for concealed carriage of guns outside the home. It's just seven states, like New York, Massachusetts, Rhode Island, New Jersey, Delaware, Hawaii and Maryland. Those are the other states. But they are, in essence, outliers. So what is the terrain here?

BLOCHER: Yeah, it's really interesting. I mean, you have these states which account for probably 80 million people - so we're talking about a significant number of Americans living in states which have - often called proper cause or good cause requirements like New York. So just as a matter of, you know, practical governance, this is a really important question. But I think it's really worth emphasizing, too, the speed of change in the direction of deregulation. Back in 1987, there was only one state in the country, Vermont, that had permitless carry. That means you could carry a gun concealed without a permit. Now there's 21 states that have that. In 1987, the majority of states had may-issue regimes, like New York. Now, again, it's down to six or eight. So we've seen, along with this really remarkable change in constitutional law, a statutory revolution in favor of deregulation in many states. Now, again, we're talking about 80 million people and some very populous states. But numerically, at least, the number of states with these regimes has changed significantly just in the past few decades.

TOTENBERG: You know, if you really want an example of how much has changed in the law, I remember Chief Justice Burger in the 1980s, at some point in the 1980s - and he was a conservative Nixon appointee to the court - saying that the idea that you had an individual right to carry a gun was really just silly. He dismissed it. He had an interview with Parade magazine, and he simply dismissed it out of hand. And that was the absolutely accepted, in the legal profession, idea at the time. That has - we have seen not a sea change; we've seen a typhoon - you know, just obliterate that idea now. And oddly, it comes at a time when we have increased mass shootings and more dangerous weapons. So it is, you know - it's sort of - if this weren't radio, I would be gesturing that - my two hands banging up against each other.

RASCOE: It's counterintuitive.

TOTENBERG: It's very counterintuitive.

RASCOE: So if the court is planning to take up this guns case, the first one in a decade, it does seem like it could set a precedent with this. How could this decision change America?

BLOCHER: I think there's two really important things to watch in the case. One is the - what I'll call the substantive question, which is, what does the court hold with regard to New York's proper clause requirement? You know, as we talked about, those kinds of requirements govern the daily lives of 80 million Americans. And so just as a substantive matter, it's really important to see if the court's going to strike this law down on what grounds. You know, there's more limited grounds, or the court could go big and say there's a right to public carry, subject to no restrictions. I don't think that'll happen, but it's possible. So substantively, that's really important.

The second thing to look for is - the court here has a chance to say, maybe with more clarity than it did in Heller, what the test will be for evaluating other kinds of gun regulations, right? Public-carry restrictions like this, they're only one kind of the dozens of forms of gun regulation out there. There's regulations on particular kinds of weapons, on particular classes of people. And usually in constitutional law, what we see is, like, a test or a set of tests or rules that decide which ones are OK and which ones are not, according to the text of the Constitution. And there is some support for what's known as the test of text, history and tradition to be the new test that the court adopts. This is a test which is associated most closely with Justice Kavanaugh, who, when he was a judge on the D.C. Circuit, wrote a dissenting opinion in a case called Heller II, saying that gun contemporary gun regulations should be evaluated solely by reference to text, history and tradition and, when they're not clear, by analogies to text, history and tradition.

Now, if the court adopts that test, then we could be looking, really, at a sea change in constitutional law and a sea change in gun regulations more broadly because it would, I think, require judges to ask really hard questions about, well, what is the historical tradition behind the contemporary federal law which prohibits gun possession by people convicted of crimes of domestic violence, right? That's not something that the framers did in the late 1700s. They did not disarm those people. But those kinds of laws today are really important and really popular. How are we going to justify them on historical grounds? So that, to me, will be the thing to watch maybe in the periphery, in addition to what happens with New York's law.

RASCOE: All right. Well, I think we'll have to leave it there. Thank you so much, Joseph Blocher, for joining us and giving us all of your insights. We really appreciate it.

BLOCHER: Thank you so much for having me.

RASCOE: I'm Ayesha Rascoe. I cover the White House.

BLOCHER: I'm Nina Totenberg. I cover the Supreme Court.

RASCOE: And thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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