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tv   Justices Hear New York Gun Permit Law Challenge  CSPAN  November 29, 2021 12:40am-2:39am EST

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hours. >> we will hear argument this
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morning in case 2843 new york state rifle and pistol association versus boone. >> mr. chief justice and may i please the court, the text of the second amendment and shrines the right not just to keep arms but to bear them at the relevant history conditions exhaustively surveyed by this court in the decision confirmed that the text protects an individual right to carry firearms outside of the home for purposes of self-defense. that history is so clear that new york no longer contests that carrying a handgun outside of the home for purposes of self-defense is constitutionally protected activity. with that concession dooms new york's law which makes it a crime for a typical law-abiding new yorker to exercise that constitutional right. this court labeled the very few comparable laws that restricted all outlets for carrying
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firearms outside the home for self-defense outliers that were rightly condemned in decisions. new york likens its law to a restriction on weapons insensitive places but the difference between a sensitive place law and new york's regime is fundamental. it's the difference between regulating constitutionally protected activity and attempting to convert a fundamental constitutional right into a privilege only and joined by those that can demonstrate to the satisfaction of a government official that they have an atypical need for the exercise of that right. that isn't how constitutional rights work. carrying a firearm is a fundamental right. it is not some extraordinary action that requires an extraordinary demonstration of need. they seek nothing more than their fellow citizens and 43
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other states and those include some of the more popular in the country. those states like new york limit the firearms and sensitive places but do not prohibit caring for self-defense in any location typically open to the general public. if we analyze this and use history, tradition, text, we have to do it by analogy. can you give me a regulation that would form a basis for legitimate regulation? if we are going to do it by analogy what what we and analogize, what would that look
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like? you find analogous restrictions in the nation's history about prohibiting certain types of firearms or having firearms or any weapon in certain sensitive locations. here i think the reasoning works in the opposite direction which is typically you have a baseline right to carry for self-defense and the only historical analogs that restricted the right of a typical law-abiding citizen to care for self-defense to the same degree as the new york law very few typically post reconstruction that purported to eliminate any right to carry openly or concealed and those were essentially invalidated by any court applying the individual rights view of the second amendment into those decisions of course were exhaustively considered by this court in heller and those
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decisions were praised for their understanding of the second amendment and the relationship between the prefatory clause and equally important they were set forth and singled out by this court. and the restrictions that were comparable to what the district of columbia was doing. >> if we look at, you mentioned the founding and the post reconstruction, if we are to analyze this based upon the history of tradition, should we look at the founding or should we look at the time of the adoption of the 14th amendment which then of course applies it to the states? >> i suppose if there were a case where there was a contradiction between the two and the case arose in the states i think there would be a decent
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argument for looking at the history at the time of reconstruction and giving preference to that over the founding. i think for this case and for most of the cases that will arise i don't know that the original history is going to be radically different from that reconstruction. that is about where it stops because the point isn't to look at history for the sake of studying history. the point is to look at the history that is relevant for understanding the original public meaning of the second amendment and 14th amendment. >> how could it stop there? we made very clear the laws that restricted someone from carrying or possessing arms and stopped mentally ill people from doing the same basically put the stamp of approval on those laws and of those came about in the 1920s,
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didn't they? >> you know, justice, some of those in their current form it took that in the 1920s but i also think there was a tradition from the beginning for keeping certain people outside of the group of people that were eligible for possession of firearms. i think obviously there was a different tradition with respect to felons. in part because you start at the time of the framing out most are capital crimes. so the need to disenfranchise felons for firearm possession is different. so you do need to make those kind of adjustments but those of adjustments the two reasons to at least be skeptical the first informing of the original public meaning of the constitution but of course the second reason is it's just about that time the collective rights view started to creep into the decisions of
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some state supreme court's, and i think so is a perfect example that this court didn't absolutely stop its analysis in 1871. about when it looked at those leader states supreme court decisions that relied on the collective rights views were given a short and that is the way to deal with these historical analogs. >> we had professors of history in the departments. you've read the briefs of the historian, of the air force. it's right and the others it's the other way. how are we supposed to deal with that? this is a wonderful case on both sides so i'm not sure how to deal with the history.
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my other question i'm not sure what new york does. new york says we have about 90,000 licenses to carry concealed weapons or maybe 40,000 but all it is is dismissed law so how do we find out what the history is but a second how are we supposed to know what we are talking about in terms of what new york does. the license for a concealed weapon. what are we supposed to do about those two things? let me start with a major question because that is very straightforward about the experience of the individual petitioners in this case and
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they both sought unrestricted licenses. notwithstanding that they satisfy every other requirement that the state has to be licensed for concealed carry. i'm happy to debate why the state statistics don't prove anything particularly relevant, but i think the more fundamental reason if there were a debate between the parties about whether 95% or 90% of the citizens of new york were denied their confrontation rights but you had two individuals that were denied the right to confront the witnesses against them you wouldn't worry about the other percent. >> that isn't the way the brief was written. it's to say this is a regulatory scheme that deprives most people of the rights to carry arms in self-defense and the brief puts
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a lot of emphasis on that. i don't believe the states are going to take seriously people's need for self-defense because they always reject these licenses. if you have a bunch of statistics that suggest the state is quite sensitive to people's need for self-defense and gives these licenses a significant amount of time you might think differently about the regulatory scheme. that's the way the briefing reads to me. a. >> i wouldn't feel any differently with respect to my two individual clients that were denied their right to exercise their second amendment rights but more broadly, the reason i'm so confident this regime is problematic on its face is because on its face at least as the highest court in new york the requirement you need to show concealed for self-defense is
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you have to show that you have the need for self-defense that distinguishes you from the generalized community, the general community. so, on its face it says the only way that you can carry for self-defense is if you demonstrate your atypicality with respect to the need for self-defense. >> he can carry it for self-defense under the license to and from work and as you say can carry it for hunting, target practice and in your opinion you are just supposed to say you can carry a concealed gun around the streets were the town outside just for fun. i mean,, they are dangerous guns. what are you supposed to say? >> it's supposed to be what new york says that they give to lots of applicants and other counties which is an unrestricted license
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that basically means somebody that has demonstrated to the states that they are is good moral character and they have all the necessary training. >> you have to show you have a good moral character and you would like to carry a concealed weapon, which is a dangerous thing. no restrictions. certainly new york is entitled to have laws that say you can't have weapons in insensitive places. in addition to -- >> new york has those laws and we don't challenge them. what we are asking for is that the regime work the same way for self-defense as it does for hunting. when my clients go in and ask for a license to concealed carry for hunting purposes, what they have to tell the state as they have and intend to go hunting.
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they don't have to say i have a good reason to go hunting. they don't have to say i have a better reason than everybody in my general community. a. >> the difference of course you have a concealed weapon and you are out with an intent. but here when you have a self defense for whatever you want to carry a concealed weapon, you go shooting it around and if somebody gets killed. >> that has not been the experience in the jurisdictions that allowed other citizens to have the same rights that my clients are looking for. this isn't something where we are asking you to take a brave new experiment that the jurisdiction in history -- >> you are talking about 43 of the jurisdictions and i suspect when we get into those other jurisdictions there will be a handful identified.
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it is a plethora of regimes that states pick. and that starts in english law through post constitution to post-civil war to the 19th century to even now. of those states that you are talking about, most of them didn't give unrestricted rights to carry in one form or another until recent times. before recent times, there were so many different regulations. what it appears to me is that the history and tradition of carrying weapons is that the states get a lot of deference on this. the question presented is the law with respect to concealed weapons. in 1350, the british parliament
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specifically banned the carrying of concealed arms in colonial america at least four, about five states restricted and concealed arms. after the civil war, there were many more. some included in the constitution that you can have the right to arms but not concealed. you can go to alabama, georgia and louisiana, which are now more free in granting the right to carry. but they prohibited through concealed weapons, the carrying of concealed weapons. it seems to me that if we are looking at that history and tradition with respect to concealed arms that there is not the same requirement that there
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is in the home. one of the things heller pointed to is that there were few regulations that prohibited the carrying or the keeping of arms in homes. but that isn't true with respect to the regulations about keeping up arms outside of homes. putting aside the prohibitions, regulations on the sensitive places, regulations on the types of people, it seems to me i don't know how i get past all that history. you were sort of making it up and saying there's a right to control states that have never been exercised in the entire history of the united states as to how far they can go and say this poses a danger. >> there is a lot to that
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question. i will try to take it sequentially if i can. for the carry restrictions, it is true that during time periods when open carry was allowed, that some states did specifically restrict the concealed carry on the precise theory that if we allow you to carry open, then if you carry concealed, you are probably up to no good. heller did a search of those those casesand what it concludef the state allows open carry of them it can prohibit concealed carry, i suppose vice versa. a. >> but the choice for the legislature, we are only looking at concealed. a. >> we are not asking -- >> you are conditioning history on a different fact. a. >> i don't think we are asking for anybody to make that choice. in fact, the relief that we've asked for is to have an
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unrestricted license because under new york law as it currently exists, that's the only way that you can have the carrying right for a handgun. but framing the relief for the complaint, we framed it so that the other relief consistent, so if new york really wanted to say we have a particular problem with concealed carry, notwithstanding the traditionally that is the only way we allow people to carry if they want to shift to an open carry regime, they could do that consistent with everything we said here. ..
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>> that concealed and gave no out loud for defense outside the home, those were the laws that the majority identified with being analogous to the country and the washington dc restriction. >> i see that many of the laws condition or retain the right of the state to decide which people were eligible. the historian, to carry the owner's commitment to the subject of the local sheriff for mayor and during the civil war that was used to deny black people the right to hold arms. we now have the amendment to protect that. but why is that cause requirement many different than that description that is given to local officials, to deny the
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carrying of firearms to people that they thought it was inappropriate, whether it was the mentally ill or any other qualification. that is how i see this cause, sitting within this tradition. >> they can appoint with how different it is with that tradition and also radically different to say it'ssomething they don't have any mental health problems from a you are a typical new yorker, you've done everything that you have asked, that you don't have an atypical need, i don't think that there's any historical analogue to that. as to the examples of history, i don't think that i read the laws the same way you do, those shirts he laws that were only in place in the minority of jurisdictions, nonetheless i think they help us, because those surety laws so the
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proposition that there is a baseline right for every person from every member of the people protected by the second amendment. and what they do is that if somebody, essentially, the complaint comes in accordance to that somebody is or has the propensity to use them in an offensive or violent way, if you satisfy the factfinder you don't get to disarm that person. you get to continue to possess their firearm. >> you talked about the right of wine in any location to open to the general public like university campuses, could they say that you are not allowed to carry on a university campus? >> mr. chief justice, i think your answer to the question is yes.
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and that is on penn state 41. >> what sort of place to think that they were excluded from? in other words or stayed can improve with certain restrictions, including where alcohol is served? so that they say you cannot carry a gun in a place where alcohol is served? >> well, mr. chief justice, probably the right way to look at those cases would be to look at them case-by-case and say, okay, they said sensitive places include government buildings and schools. and i think that those coming could probably tap into any place that served alcohol would be a tougher case for the government and i think we would have a stronger case.
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>> what about the stadium? >> i think on the stadium it would handle it on its own and look at the historical analogue. offering general principles from one principle is that restriction of access to place in the restrict access and you are excluded and it is a different animal than a kerry restriction.
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this is a place where no one weapons are allowed and this is part of the foreign doctrine of the first amendment. which you start with a place. >> giving you a few more, new york city subways. >> yes, i think the question of whether you could restrict guns in the subways.
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>> they are not looking for it in any way. >> it started with universities and you said that i would be all right. did you mean not mean that. >> yes, i did -- >> you know, because that is open, anybody can walk around the nyu campus. >> and why you doesn't have much of a campus. [laughter]
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>> there are 50,000 people in one place, they are all on top of each other. >> i think they might well be able to. because you can't get into yankee stadium without a ticket. i have to understand, and i don't know every jurisdiction and i don't know enough about yankee stadium, but a lot of these are not run by the government anyway and it's a private entity. >> that includes who the chief
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is asking you and if the justices asking you and as you can see they require you to but they did outlaw the guns sensitive places and can we just say times square is a sensitive place because now we have seen that people are on on top of each other, we have had experience and it is not as a time and place in a manner of restriction. and there were no weapons owns, all the time because of the nature of the institution and its probably worth thinking about, rallies and times square, maybe restrictions that would be
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done. >> would restart with the purpose, the personal right to keep and bear arms of the core purpose of that with the military aspect is self-defense. so starting with that, could we please analyze the sensitive place question by asking whether this is a place where the state now has taken alternative means to safeguard those that frequent that place. it's a place like a courthouse, a government building, where everybody has to go through a magnetometer, that there are security officials bear and that would qualify as a sensitive place. that does not provide a mechanical answer to every question. but would that be a way of beginning to analyze the.
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>> is the reason i'm a little bit reluctant to go that route as opposed to really think about than nature of the place and we have your back. >> i don't know what those places would be. >> i think that my friends would tell you that the city of new york is our way. and i think that there are a lot of people that way, in new york they have a lot of reasons to have a little bit different than upstate new york reminding them things. >> how? >> well, so far in my mind, i think that nyu does have a
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campus. and you think that in new york city that people should have a considerable freedom to carry concealed weapons and i think that people of good moral character would start drinking a lot and who may be there for a football game or some kind of soccer game can get pretty angry at each other. and it's have a concealed weapon, who knows. there are plenty of statistics in these briefs to show that there are some people that do know. and a lot of people end up dead. okay? so what are we supposed to do? float around like what and why you and say hey, oh, this is the rule, things to work out in upstate new york and we do know that your client is carrying a concealed weapon? and they followed in following the history, which i did that was wrong.
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even so, what are we supposed to say, in your opinion, that is going to be clear enough that we would produce a kind of gun related chaos. >> one thing is the experience of the 43 states, and on both sides they are getting into the empirical evidence that really isn't the case, those that include very large cities like phoenix, like houston and chicago they have not had demonstrably worse problem focused problems with this than the fibers states that have the regime that new york has. and the city of chicago is in a
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jurisdiction that is issued. and as they go on to sort of essentially bragg about all of the ways that they have done consistent with that crime in chicago that probably doesn't have a direct analog in illinois. but, of course, one of the problems with this case. >> most people think that chicago is the world's worst city, with respect to gun violence. >> chicago doesn't think that. but everybody else thinks that about chicago's elected alleles that about phoenix and nobody thinks that about you than a nobody thinks that about dallas, nobody thinks that about san diego, which even though it is in restrictive state it is a jurisdiction. >> justice thomas? >> where does mr. nash would've? >> he lives in new york close to
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nyu. >> that is nowhere near nyu. so if you're looking at the county website they talk about spread over 900 square miles. >> anything further. >> your client is permitted in outdoor activities of any kind like camping, hunting and fishing on back roads and how many how many does your client have a self-defense risk and at
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what point do we look at the restrictions and the burden that it places, meaning that i'm sure that it has this and ensure that it may have this or two, but it's not like he's totally restrict it from carrying a gun, he stripped it from carrying one basically in the sensitive places. the rest of his home is pretty distant from other thing. semesters so we start on the same wavelength or page, page 41 of the joint appendix, this tells him how we feel and i emphasize that the restriction
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is concealed from carrying in any location, all caps from any location, typically open to and frequented by the general public. and that is a pretty broad number of places in the county that would include most of the roads in the county at night when you're traveling and could think that you have a need. if mr. nash has a relative car breaks down, he has to have a change of attire and wants to go out, to assist them with that, to make sure that they are in a position to defend themselves, i don't think you can do it consistent with this license restriction. and at the end of the day, i do think that what it means to give somebody a constitutional right, is that they don't have to satisfy a government official, that they have a really good need to exercise it and they face a typical risks. >> justice, anything further 2. >> he said, i think, in passing,
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that it would be fine if new york had banned the open carry us along as they can allow concealed carry. is that correct? >> yes, that is consistent with the relief that we are looking for, somehow led to exercise their constitutional right to carry firearms outside the home. >> how is it consistent with the history? the history seems very clear to me, that it's is the exact opposite of how we think about it now. but there's lots of people that wanted to display this as is a matter of transparency, what they prohibited was the concealed carry. so i'm thinking that if you look for the history you end up with a completely different set of rules from the ones that you are suggesting with respect to conceal versus open carry. it is an example of the difficulties, people operating on such different wavelengths.
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>> justice, i would first of all have thought that we would've crossed the bridge in the contact, but if we are going to look at the history, i actually think that this is part of its. >> the question is how do you use history, where do you look, how far do you look, do you look to the 1920s when all of these laws were passed as well as public purpose was of exactly the same kind as new york, so one question is how far up the look and another question is with what sense of stability and i think that this is an example about and we're not going to ask for the analog because we are asking for the scenes look very different different because regulatory interest is very different. we tried to copy history we would find ourselves in a world in which the only thing that the state could do is tell people
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that you cannot carry concealed, you have to carry it open. >> justice, let me give you an idea of how we should use history in this context and i will go exactly to the georgia statute at issue non-against georgia. prohibiting this. it did say open and it did save concealed. and it wasn't consistent with the second amendment and then consistent with the norms of the
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time and economy severability holding. and they said all right, the open carry in it is indeed no outlet to exercise this situation. and i will grant you that the norms of the time have lived and certainly in new york, based on the rest of the regime. i assumed that they would assume that we carry conceal were other than openly. but that is the way you can use the history.
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and of course, that was one of the laws that they look to in this decision. >> when you look at his history of improperly contextual way, you see no difference between the kind of regulation that was allowed in the home? and the history is replete with that distinction, it is a very special place. both because for similar reasons to the fourth amendment and also because of the need for self-defense though much greater there. >> i think in terms of -- i'm not going to tell you the context of the matter of it all, you know, they don't really affect the chief right the way that they affect the carry right unless you try to save the entirety of manhattan.
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but in general the it analysis is going to be slightly different, but i would say that i do not think that those differences are material here. i do think the district instead of just banning handguns inside the home had a permanent regime that required it to show, that they had an atypical needed to possess a handgun inside the home, i'm not sure that anything would've been different because it's inconsistent with a constitutional right to either ban the exercise of it or to use a that it is a privilege that you can only exercise to show that you are atypical from the rest of the people that are equally protected by the constitutional right. >> thank you. >> sir, can you hear me. >> yes, loud and clear. >> some of you have asked us to provide further guidance in cases beyond your own.
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in your case for the moment, pointing out that some had refused to apply the history test and they will not extend until this court does. other courts have applied intermediate scrutiny, variations of that, some have suggested this to other rights and our other types of scrutiny. i am curious what feelings you have about all of that. >> thank you, justice. i think that we would start with the idea that history and tradition is an appropriate way to deal with this right. that is what the court said. it would allow the court to make clear the same analysis applies outside of the home and i think that this is such an outlier that the court would not have to think too much more in less than one or two. if they wanted to already it would go a long way to
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correcting some of the mistakes the lower court to say that the history and the tradition is not part of the test but the tests inside and outside the home. if this court prefers to go the level of scrutiny row, and the police say two things, number one, we would prefer strict scrutiny as consistent with the fundamental constitutional right, even if it's going to be intermediate, probably the single most important thing to remind the lower court is that the intermediate scrutiny requires narrow tailoring. and a lot like this that takes a person who has no proclivity whatsoever to misuse firearms, and says he simply cannot carry them for self-defense frequented by the public because of the atypical need, that's about as untypical as i can imagine. so if you make clear that its it's history, tradition, outside as well as inside, make clear that tailoring is an integral
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component that would go a long way to clearing up some of the confusion in the lower court. >> i know that you have had a substantial debate with your friends on the other side about the bad shoot of north hampton, we haven't heard about that today and i just wanted to give you a chance. >> i would say just a couple of quick things, first of all, i think that it was very clear from the case that this relied on that by the time of the english bill of rights, that was not a general prohibition that was carried outside of the home, but was a prohibition on unusual or dangerous weapons or using common weapons in a way that terrorized the public. so i don't think that that supports the other side position here and the second thing that i would say it's probably the most obvious point is there are no
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reported cases on the side of the atlantic, atlantic reporters, newspaper reports about crimes of the day that shows anybody being prosecuted for a violation, simply by carrying common firearms for self-defense and the one early court the delegates, the common law of the statue, against huntley and north carolina, the majority in that case went out of its way to say that per se is not an offense, it is the intent to terrorize the people that is prohibited. >> thank you. >> justice brett kavanaugh? >> seem at first, i would like to make sure that i understand your main problem here with this regime, the discretion involved with this and the officials that
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is just not how we do constitutional rights, where we allow blanket discretion to grant or deny something for all sorts of reasons. but i understand that you would not object to know that the regimes that are used with many of the other 42 states. there can be particular problems with those and is that accurate? >> as you say, something like good moral character, there's the possibility for discretionary abuse as well and we like what they are having and what they have in the other 43 streets and that includes with respect to this. it is the discretion combined and so they came up with some sort of magic wand they gave him
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a precise reading, at the end of the data you have to show that you are atypical from the rest of the people protected by the second amendment, we would have a problem with that is well. >> that's right, with the physicality requirement would be no good interview. >> exactly, even if you could come up with this standard. >> and the issue was, as i understand it, the permanent regime, we don't have to answer all the sensitive place questions in this case. is that accurate? >> that is 100% accurate, sort of a market test of the accuracy of that, including sensitive place laws and we have not challenged them in this litigation. >> to follow up about this, we should focus on american law and then the tax constitution and we don't start the analysis in a vacuum, but the grants right to
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carry and historical practice that can justify certain of the regulations, but the baseline is always the right to establish it and there will be tough questions and arguments revealed about what this historical practice shows. >> that is absolutely right, justice, and of course, that is no different than something like the first amendment will restore with it and then you look to history and tradition to realize there is a long tradition of going back to the framing. it's very helpful on that and that includes other areas as well, i am only concerned that
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that will be a balancing test that we will make as a policy judgment from the courts and he said that he you would be okay with that, but i'm not sure that it would just be a policy judgment that would be on anchored from the historical practice. >> just two points in response to that is to articulate the concerns with interesting balance, that can be a reason reasoned that if you're going to go at the level of scrutiny he would go with strict scrutiny, where there is less in the joints. >> you know, there is a lot of this in some of the other areas as well, so i don't know that you want to open that door. >> the second point i was going to make, justice, with more direct impact to the question, whatever was the case where a sort of read the majority, whatever was the case now, we
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have this 13 years of experience with the lower courts applying it and they have made such a model of it and it is probably the experience of the last 13 years is a very good reason to prefer hs history tradition approach. >> i have one question. so in response to my question and then just now as well, justice, you made reference and then obviously a lot of the questions that have been asked have been focused upon how do we regulate because everybody agrees there has to be some regulations and it might not be the case until we find the first amendment and he said that that could be analogous to a restriction. so do you think that the edifice
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is that we have structured would be a helpful place to look? is that what you are suggesting. >> i'm suggesting that there is a lot of useful teaching in the first amendment. and going back well over a hundred years as they were just talking about the first and second amendment, and drew the analogy between the restrictions in the first amendment context assistant with this, and i think that the way that you think about this nonpublic forum and i think that to be useful as you focus on the nature of the location you might say that it's inappropriate for weapons but we just wanted to say we are going to make a nonpublic. you can't just say that we are going to make this by saying no
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second amendment activity there. so those kind of analogies and lastly the analogy in which you look at a law that says no concealed carry in a particular place on one night of the year quite differently from a while like this that says there is no way for a typical new yorker to conceal or carry anywhere that the general public is allowed to go. there is radically different laws. >> thank you, counsel. >> general underwood reign. >> mr. chief justice, for centuries, english and american law has imposed limits on carrying firearms in the interest of public safety. the history runs on the 14th
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century of north hampton and the prohibited carrying arms and markets and other public places to similar laws adopted by half of the american colonies and states to the later state laws and people who had a concrete need for self-defense. and that includes taking different approaches, some states provide a better person who carried firearms without reasonable cause would be to post bonds, others made it a misdemeanor to carry a handgun without and that includes situations of immediate threat? and in the early 19 hundreds, many make good cause, a requirement for a license to
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carry while also prohibiting in 20 states have either prohibited all carrying of handguns in popular areas or limited it to those with good cause making the carry license available to any person, any person that has the ability to carry a handgun for self defense. new york is not an outlier, and it's not an outlier and asking a license applicant to show a good carry license. many have received this in new york state, if the court has questions about how the law works, it should be mansur
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backed findings including under intermediate scrutiny and uphold it. >> general, you seem to rely a bit on the density of the population who say that, i think, with states like new york have high density areas and implicit in that is the more rural an area is, the more unnecessary district ruling ends. so when you suggest that, how rural this area have to be before the restrictions should apply. >> i think the way the pistachio works is consistent with reasonable rule, which is that there's not a number at which things change, but that
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unrestricted licenses are much more readily available in less densely populated counties than they are in the dense metropolitan areas which is a virtue of the system of having the licenses handled by those who are part of the local community is and to take the density of population into account as well as many other factors. >> well, mr. nash lives in quite a low-density area, that is why i what i am interested in where you're cut off is, it is one thing to talk about manhattan or the nyu campus, it is another to talk about rural upstate new york. >> he actually lives in an intermediate area, the county that is not that far from albany and it contains the city of troy
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and a downtown shopping district and also contains substantial rural areas and that is precisely what the licensing officer here was taking into account when he made the change and differentiation, don't take it downtown, but you can take it to the backcountry areas. >> thank you. >> unrestricted so what about the reading of the second amendment, it is pretty unlikely
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that you're going to run into someone that is going to the there are places in the densely populated city where that is what you'll need for self-defense and their hot our high crime areas. and how is that consistent with how that is for self-defense. >> if you go right to history and tradition, the history with was to talk about this in densely populated side and we have history and also a rationale through that his tree, where there is dense population
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there is also the current of lots of people and the availability of law enforcement and in england it was in fact an insult the people could just take things into their own hands. >> it defends on the jurisdiction and all that and don't worry about it because there's a lot of police around. >> these regulations are an effort to accommodate the riot to recognize and respect the right and self-defense while regulating and to protect in areas where people are densely packed the risk of people packed
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shoulder to shoulder are much more acute than they were. >> well, sure. just because a lot of things are going on there it is a to allow people to protect them those, that is implicated when you are in a high crime area. >> i think it is implicated, just a different set of problems in law enforcement is not available because something does happen. >> how many do you think? >> i don't know, but our license and officer told us the rates and robberies have been on the deserted bikepath and that he has some concerns about that and
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i take your point that there is a different risk in the city but there is also a different public safety consideration and that is why it is meant to take into account not just the risk but also the population and i won't say that the risks. >> the risk has to be specific to the person. and you can't just say i'm afraid because based on facts that are not specific to you, but what mr. nash did was with his trip to a deserted parking lot, every night, it was sufficient.
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>> son of sam or whatever you call it. is that good reason, is that an atypical reason, is that a justification to go around shooting people even though i didn't feel the need for one before? >> i think it would have to be brought home to you, to your pardon my, your apartment building, but something specific to you rather than what's happening in the world at large. >> i can explore what that means ordinary and law-abiding citizens who feel they need to carry a firearm for self-defense. so i want you to think about
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people like this who work late at night and it could be somebody that cleans offices, a doorman at an apartment. and somebody that watches the dishes, they're all getting off work around in my, come home maybe by a subway or bus, they have to walk some distances to a high crime area and they apply for license and say nobody has said i'm going to mug you next thursday. but there have been a lot of muggings in this area and i'm scared to death. is that right? cement that is a general correct. >> how is that consistent with the right to self-defense which is protected by the second
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amendment. >> that's right, as this court said, it doesn't allow to be armed for all possible confrontation in all possible places. >> but it doesn't mean that there is a various right to self-defense and state judges and retired police officers, but pretty much not for the kind of ordinary people. >> i think the extra problem is that and that is a lot of people in the subways at night.
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>> there's a lot of people on the streets of new york. >> there a lot of armed people? >> how many were seized by the police department, do you have any idea? >> i don't have that number, but i'm sure that's part of it. >> all of these people with illegal guns are on the subways, walking around the streets, but the ordinary law-abiding people that i mentioned, no, they cannot be harmed. >> i think the subways are protected by the transit police. the idea of proliferating arms is precisely what terrifies a great many people. and the other point is that
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proliferating guns in a populated area jeopardizes law enforcement because they can't tell who is shooting and that is why there is official law enforcement and not having. [inaudible] >> particular to them, why is it not been enough to say that i live in a violent area and i want to be able to defend myself? >> well, one happens in these hearings is that the question is asked. >> well, the statistics. >> it depends on how large of an area, that could be all of new
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york city or your particular neighborhood. but i know that one of the petitioners made an assertion, i also know there's a hearing about that and he did not convince the licensing officer they were sufficiently recent relevant or could it be dealt with at a lay by his own and what i know happens is they are examined, and this gets your questions about their discretion in whether or not that is effectively handled, but -- >> with the concern is is that the discretion of individual officer, if it seems
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inconsistent with an objectional constitutional right, what if you are a runner in the say that i run a lot and as you quickly pointed out earlier there were a lot of serious violent crimes. is that good enough? well, probably. >> probably no -- i mean. >> that is not the way this case was tried, it's not the way that this claim was framed, if the question is does the system actually operate in the way that we are deciding the case should be in a hearing to determine that it does? >> what is the problem with this regime that exists in any other state? >> multiply the number of firearms that are being carried
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in densely populated places, there is a much higher, without assuming any ill intent on the part of the carriers of weapons, they greatly proliferate the likelihood that mistakes will be made, that bites can break out. >> i mean, can you make a comparative judgment claim it because it seems like before you impose more restrictions on individual citizens, in infringing constitutional rights based upon this theory you should have to show in those other states that have the regimes, there is actually a lot more accidents and crime and i do not see any real evidence of that. >> there is a brief from the social sciences that addresses this for over 100 years starting at a time when the law was not
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as well understood as it is now. so when you talk about before you put this one place you should have evidence, but i believe that there is evidence about the success that new york has had in keeping gun violence down that is attributable to the reduced number of guns here in this area in these densely populated places. one of the things that strikes me about this area is on the one hand and if you think about the questions by justice thomas, less populated areas, the rural areas of new yorkers as the city, it seems completely intuitive that there should be different regimes in new york than in wyoming, or that there
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should be different regimes in new york city than in rural counties of state. but it is a hard thing to match with the notion of constitutional rights generally. and mr. clement makes a good point about how we would never really dream of doing that for the first amendment or four other constitutional rights allowing that level of local flexibility. you're basically saying that we should allow in this context. so i guess i would just like to hear you say why you think that is. what justification is there for allowing greater flexibility. >> i think at one point is that there is a very wide range of distribution of rural and urban and for kinds of areas, not just
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across the state but other places as well. so delegating the decision-making with appropriate criteria to somebody that is local, which is what this is, local judges. the local judges. to make the relevant increase. this is an interactive process in which these individuals are others are told that i'm not going to lift the restrictions but if you come back if you have more to say about this, feel free to come back and it is an ongoing process and that that is what happens. and so it is hard to see how to specify everything and have it be a clear situation which can still take adequate account of on the one hand the need for self-defense and on the other need the strong public safety
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concern and that is why i think that this is like that. >> i don't think that that is the question of justice elena kagan. >> the issues there was a constitutional right on permitting different jurisdictions are past different regulation. do we have any other constitutional right whose exercise in history has been a part of this? >> i think that that is right both at the local level and add these state level. we have a strong history here of a range of responses from state to state that is based on local conditions as well as local concerns and what we have with the new york is an effort to
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recognize that we have almost the same range of different kinds of safety within the state, this is the effort to accommodate that and it is the history that is taking local conditions and population into account and it's hard to think of another way to effectively do that. but there is appellate review here to the central court. >> thank you, counsel. >> would take, for example, this is something we can all agree upon. you cannot hunt with a gun in central park. but i am certain that there a place as in upstate new york or even in western new york where you can. >> yes, yes. >> i think that what we are at
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the is if you can have that difference for the purpose of hunting, specifically, why can't you have a similar tailored approach for the second amendment. based upon the density and new york city if that is the problem, the subway, then you have a different set of concerns in upstate new york. >> well, how this works for particular locations are particular areas, but it is all one statewide regime. and so to hear, the licenses are handled locally, not exactly the same, but it's the same model. that license paying carrying a handgun for self defense is handled under a single set of
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criteria that we have reference to local conditions. >> considering here upper state new york and the law, we are not considering new york city, are we? >> i do not see any reason to consider new york city. >> if you're talking about uniformity, as it filled with local statutes. >> that terri is in the areas where this happen, is these days, it could be solicitation for charities, various areas where the earth's amendment activity is.
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>> is an instance where they do it statistically and that includes the character people there is a greater risk of a crime or harm, where that happens, that there are more deaths with people. >> i believe it is social scientist. >> as i said, we could go into that. i think the problem would be let's have some absolute rules. and i'm not sure that we have those in the first amendment but we do. it's a what are those rules? >> i think that they would end up being factors that have to be taken into account because of the range of situations that is so different on the side and on
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that of the public safety side. so i think that it is one of the things that is very hard that a sensitive place regime could replace a system like this. >> yes, because you talk about how many concealed carry licenses are given in upstate new york and anyway you would like to put it. are they in the tens of thousands? >> you know, i can't say that i have estimates. i have some estimates. ..
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we have the grants. of course there were licenses that were not granted that year that are still valid, so that doesn't tell you how many licenses there are out there altogether. the thing we had to estimate is the rage because we don't have application data. we had two estimated that from other information but we have the permits. >> justice alito. >> is it correct that the nonspeculative standard applies throughout the state, it applies equally in new york city and the most rural location in upstate new york? >> it has been, the law has been interpreted to mean that although the experience of
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granting licenses with experienced license applications is that it is apparently more readily satisfied. >> abstained. so the individual officers have a degree of discretion. >> well, yes. like judges on many issues, they are asked to take into account certain factors that can be reversed if they took the wrong factors into account or if they failed to take the specified factors into account. is it isn't unguided discretion. >> what guarantees if any that a licensing officer is not taking into account in proper factors? >> this is a question about the judicial system. if he records the factors he took into account, they write letters or opinions which may or may not fully disclose what they thought was important.
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he has to say why. >> we've been presented on the briefs in this case with an enormous amount of history citation and statutes and other sources. would you be willing to concede may be you got a little over enthusiastic in your summary of some of the historical sites in your brief? >> we did our best on what we reported. >> i'm going to give you an example. it's troubling. i can see how it would slip through. i'm not accusing you personally if anything. but on page 23, you say that in
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the founding era america we go to advise local officials to, quote, arrest all such persons as in your slide shall ride or go armed and this is john heywood emanuel of the walls of north carolina, 1814. so, i look at this manual and what it actually says is you shall arrest all such persons as in your slide shall ride or go armed offensively. and somehow, that word, offensively, got dropped in the brief. >> i think it would have been better to put it in and make an explanation but i do think it's irrelevant because we have substantial authority for the proposition that guns were deemed to be offensive weapons
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and that's why we have this dispute about different ways of putting it. all offensively or with offensive weapons or to the tariff of people. it either describes a separate characterization or separate feature that not all weapons have. that's what the position on this or they describe the belief that all such weapons are offensive. >> i don't want to belabor the point, but of course if any possession of weapons outside of the home was illegal and there would be no need to put in the term offensively, the inclusion of that. >> there are many others. there is a list it's not in this particular instruction but they are talking about much more than guns that were said over and over again to be offensive.
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justice sotomayor. justice kagan. >> you started a thought and then you were taken off someplace else, so i wanted to allow you to finish the thought. what you said was there was a reason why this sensitive place regime cannot serve as a replacement and then you were not given the opportunity to say why. >> essentially because there are -- it would be very hard in the first instance and i think also not very acceptable to my adversaries on the second instance to specify in advance all the places that ought properly to be understood as sensitive so it sounds like a very convenient alternative but we were talking about times
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square on new year's eve. when the district met, when commerce is in full swing, times square almost every night is shoulder to shoulder people. so then you end up having a difficulty in specifying what all the places are that have the characteristics that make them sensitive. it has an interactive policy but the implementation i think would be unsuccessful. >> justice gorsuch. justice cavanaugh? >> do you think it was rightly dissented? >> i think there was a lot of support historically and otherwise. so i'm quite content to review
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it as right-sided but that is true about many, most of the difficult questions. do you think that we are bound by the way that we characterize history in that opinion? mr. clement has pointed out in some respects it is different from the way that we argue that we should interpret the data and the follow along the colonies. you argue that we should understand those and some other cases van heller. >> i think the decision made a very clear that it wasn't deciding anything other than the right to keep arms in the home. in that decision it is necessarily set a lot of other things that led to that
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decision. but i do not think that they are controlling and i think the opinion itself says we are not trying to do a whole second amendment right and there's more to be done and it would be all it and really inconsistent with the general practice to treat every sentence or every reference to a historical source as controlling for all times as distinguished for the purposes for which it was invoked. >> thank you, general. >> thank you mr. chief justice and may i please the court. at the proper clause is consistent with a second amendment because it is firmly grounded in the nation's history and tradition of regulations. as justice alito said there's a lot of history floating around this morning so i want to be
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clear i'm putting to the side all of the disputed debates about the statute and about the surety laws and i'm putting to the side of the laws that restricted concealed carry do not restrict open carry and i'm focusing on laws that prohibit to carry a concealable weapon like a pistol. tennessee enacted those in 1821. a texas followed in 1871. new mexico and arkansas enacted such laws in the years immediately after the ratification of the amendment and over the decades that followed, more than a dozen other states enacted other laws that were as restricted five new york's. i counted out 20 in total that fits that description. of those three main and forced in seven states today and more than 80 million live under their protection and are in short traditional and common regulations. i welcome the court's questions and i'm happy to continue. a. >> how do we determine which
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states we should look to? >> the rest is different. >> i agree and there might be reason to be skeptical. that is a problem and relying on some of the cases exclusively from the antebellum south the cases come from the south like the tennessee, arkansas law that i described. west virginia had a similar as did alabama, new york, massachusetts, california, hawaii. the tradition spans the centuries going back to the tennessee law and spent 150 years when you brought it out and it expands all regions of the country so that is the sort of tradition that you can look to when defining a national tradition of regulation. >> what is the appropriate analysis? generally they don't reinvent the wheel. the first thing i would look to is not the statute, it is heller
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going through all this stuff and obviously in a different context although that is part of the debate. but i still think that you have to begin with heller and its recognition that the second amendment has its own limitations but it is to be interpreted the same way that you would interpret other provisions of the constitution. and i wonder what your best answer is to the point mr. clement makes is brief. if you are asserting a claim under the constitution, you don't have to say i've got a special reason. you say this is why it's important to my defense the constitution gives you that right. you don't have to say when you are looking for a permit that
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your speech is particularly important. so why do you have to show in this case convince to somebody you are entitled to exercise your second amendment right? >> as to the general question about heller, we agree completely at all to apply which all the parties take to look at the text, history and tradition of the second amendment right and applying that now to a somewhat different issue with broad material. as to the question about why do you have to have a showing of need, i think the problem in the formulation is it assumes the conclusion. if you have a right to carry around a weapon for possible self-defense as an individual wants to have one available, obviously you couldn't take away that right or make it contingent. but the whole question is whether the second amendment right to keep and bear arms conifers that for self-defense even after showing demonstration
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-- >> regardless of what the right is, it would be surprising to have it depend upon the system. it was right in a particular way just as the first amendment rights are limited. but the idea that you made a license to exercise the right is unusual in the context of the bill of rights. i think i heard even mr. clement and justice cavanaugh say that he doesn't have a quarrel with the regime's in general and i think that is one illustration the second amendment has a distinct history and tradition is to be faithful to that history and tradition and not draw analogies with their own histories and traditions. >> there's licensing and it's one thing to say we need to check to make sure we don't have a criminal record and all the other things you can check on but not that we assume don't have a right to exercise. >> it's hard to say without and
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you've got to show us that you do. so we would ask that question by looking to the history and tradition. a tennessee in 21 you couldn't carry a pistol at all. texas in 1871 you had a showing of need if you were going to carry a pistol and that was much less favorable in those that we cite the need to carry a firearm to show when you were prosecuted for violating the law it was a self-defense requirement and you had to persuade the trial that you had an immediate need to be carrying the gun when you were carrying it. the laws of which by no means the only example became more prevalent with a showing of good cause. new york has done that for a century. this might be a level of generality but i think
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mr. clement responded to what some were saying that you have to look at the carry law more generally and there was open carry traditions in a lot of the states. so, i think that he followed up by saying open carry is one option, shall carry permit regime's for concealed carry is another option. but what we can have is no open carry and simply discretionary regime that will limit the rights. to take that into account in the history that i'm giving so the tennessee law specifically to texas the same story if i were here defending the regime that just prohibited concealed carry. but i'm focused on this type of law and of their submission is there's a substantial history and tradition of that regulation that the court confronted in heller and mcdonald.
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to speak about the case law to suggested that of the walls like these were struck down and with all due respect to my friend, that's not correct. the cases he is relying on are primarily the two cases he has that actually struck down the law or the three cases that actually struck down the law or the decision from georgia that struck down the law that was banned of keeping pistols. they did say the open carry was required and much more restrictive. the andrews case that he relies on as well as more helpful to us because the court upheld the prohibition on the carrying and it prohibited the ban only because the court construed that to be so broad that it would prohibit carrying it around your house and would regulate the carrying of that firearm publicly. when we turn to laws like the ones we have here that include
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some sort of self-defense exception that the trend in the case is in favor of upholding the constitutionality with the decisions from the 1800s and early 1900s including the duke and english cases from texas, the case from alabama, the cases from arkansas and at the case from west virginia all of which upheld those laws. the answer is that they rested on the erroneous understanding that the second amendment for the state equivalents protected only the right to use arms in the militia but that isn't what the cases say. they do not stop by saying they were not militia men and had no rights. the texas case in particular in duke and english say that it makes all necessary analysis for self-defense. that body of case law is part of the nation's history and tradition of firearms regulation added that new york ought to be
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allowed to continue to make the choice that it's made. we understand the argument other states have made other choices and they made a powerful point about how some individuals have a powerful self-defense but the question be for the court is all the different approaches to these difficult issues that states and other jurisdictions have taken over the nation's history is this one that the second amendment takes off the table. the submission is when it's an option that new york and other states found for a century or more and the trees as far back from some that i've been discussing. it's consistent with the governmental regulation and an option not to be available to the states. >> justice thomas, justice breyer, justice alito. is it correct that it was an innovation when it was adopted? it was relatively new in 1911 the licensing requirement was
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1913. i think massachusetts had done a similar and hawaii did it as well in 1913 and we view those as in fact improvements upon sort of texas laws and self-defense at the backend rather than giving you the chance to demonstrate it upfront. >> there's debate about the impetus is there not? there are those that argue and they cite support for this interpretation that a major reason for the enactment of the sullivan wall was belief that certain disfavored groups were carrying guns and were dangerous people flex. >> there's certainly evidence that the sentiments existed. i've not seen things that persuade me that they were the impetus for the law and to the extent that was a question, the
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fact that a similar had been enacted and maintained at that moment in time but in a number of different states throughout the country, throughout large swaths of history is a good reason to believe this is a legitimate regulation. >> i think one more question about the major point is there are scattered statutes, local ordinances, judicial decisions from various points in the 19 1h century extending to the 20th century and the others that you mentioned of that are in with mr. clemens argument. a. >> what does that show about the original understanding of the right that's protected by the second amendment? would we be perceptive to arguments like that if we were interpreting the first amendment or the confrontation clause of
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the sixth amendment? we would say you could find a lot of state laws and state court decisions from the 19th century. that shows that's what that was understood to mean at the time. i think heller was receptive through the 20th century and rightly so. i think it's not unusual to look at the traditions to understand the meaning of the constitutional rights. that is especially appropriate for a couple of reasons. one i think everyone agrees that amendment is the right that is subject to some reasonable regulations and deciding what is reasonable the fact that they've been prevalent throughout history is a good sign that they are and especially so because of the point this court made in mcdonald that throughout the nation's history it's recognized
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and codified in state constitution as well as not something people were aware of and so the fact that this type of regulation coexisted for so long is a particularly strong indication. >> i will stop after this. heller cited decisions going into the 19th century as confirmation for what it had already concluded based on text and history at or before the time of the adoption. this is what it was understood to mean at the time and further evidence that was understood to me because it kept being reaffirmed by decisions that came after. but i find it hard to understand how leader decisions and statutes in the early 20th century can be used as a substitute for evidence about what it was understood to mean in 1868.
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>> you are certainly right about the way that heller looked to decisions on its core for the individual right about when heller turned to the question here which is what sort of regulations are consistent with the right it was recognizing i think it's right to extend the analysis for the reason justice kagan noted. that date too much later than the 19th century. >> what do you do with heller and its recognition of categories of exclusion? mentally ill, domestic violence. can any of those ever pass strict scrutiny? >> i don't think you need to
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apply strict scrutiny or any other level because those are validated by the history and tradition of gun regulations and so we would take that lesson as exemplifying the analysis and apply it here as well. a. >> so what do you do with your view that the essence that heller says has some sort of right outside of the home to guns for self-defense? how do you finish what you think that is or how do you describe it? >> we don't quarrel at all with the notion that it has something to say outside the home. our submission is how it applies outside the home one has to look to the history and tradition of regulations and what we try to argue in the brief and this morning as there is a substantial history and tradition of the regulations of the concealable weapons including pistols because of the
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dangers they present and the regulations of the type of which new york is one or consistent with the rights recognized. >> let's go to the extreme. there is no exception for good cause. there's no exception for, no exceptions whatsoever. no rifles for hunting, outside the home you can't possess any kind of ammunition driven weapon. where would we be without? >> it is a type of regulation that no state has today and i don't think there's any historical precedent. where i don't think you could make this sort of argument to -- >> if it is a limiting principle, blood regulations and how far they can go that don't achieve that? >> it is going to be difficult for me to give definitive answers because this is an
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inquiry that has to be driven that requires a careful examination but let me give you a couple of guideposts. there is a tradition of laws like the tennessee law that prohibit the carrying of concealable weapons without any for self-defense or any good cause exemption like the one you have in the new york. so for the ninth circuit it concluded after an exhaustive historical analysis that this type of regulations are consistent with the second amendment but i acknowledge the case that you can make with respect to laws like new york that include self-defense exceptions. >> i think they probably should have asked this question but i forgot so here you are. of the united states also has law enforcement officers even though they operate differently from sort of the cop on the beat. but i'm just wondering if there is anything that you can say, any evidence you can share.
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is there information about how this actually affects in a way that mr. clemens would want this court to do, how it affects the ability of police officers to keep the streets safe, and how it affects their own safety. is there information about that? like studies? >> that is to place like it point you two are some of the amicus briefs including social science briefs that justice breyer discussed in terms of the united states perspective specifically, i don't have any sort of quantifiable statistics. what i can tell you is we share the concern behind the wall that having more guns on the street does complicate and increase the danger in the inherent law enforcement encounters. we do think that is a real
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concern reflected. a. >> do officers stop people in the same way notwithstanding whether it is a new york regime or more permissive regime? >> i apologize i don't have studies on that. all i can give you is my own sense that if i were in a police officer i would certainly think prominently in my mind what are the odds the person i'm stopping or approaching in the middle of the highway late at night is to be armed and licensing in the state is going to be an important factor in the risk that that's the situation. >> thank you. >> justice gorsuch. a. >> in your brief you suggested the new york law passes both of the history approach and
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scrutiny. that is what is the appropriate test between those two are others, the lower court seemed very divided over how to approach second amendment questions. some apply the approach to the challenge before them and others say yes it is appropriate but we are not going to extend the right until and unless the court first does so. we are not going to do it ourselves. others apply to immediate scrutiny and what might be described as a watered-down scrutiny and some suggest the strict scrutiny or modification should apply. i would be grateful for your thoughts. i appreciate the question and i think our view is that the courts ought to follow what we understand to be the lesson that you start with history and tradition when they provide you an answer one way or another that it is valid or invalid you end up there and that is the end
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of the inquiry. we've taken that approach to be consistent and i think the one place we might differ is we think there may come a point especially when they confront new regulations for history where it's not possible to draw those historical analogies anymore and at that point our suggestion is the way to be faithful to the tradition is to look to the broader method that you find and that we find in a half dozen or so is to ask whether the law is a reasonable regulation and as we explain in the brief, we think that the method that is most faithful to that approach is a form of media scrutiny. >> thank you. justice kavanaugh. a. >> i want to explore that and get your thoughts on one thing. as you say there is a history tradition that exists to the
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present day so the issue before us is a narrow shallow issue and will have a substantial effect s that there is a tradition. how many do we think about from a separate tradition that the chief justice and others have referred to in our constitutional law of concern about too much discretion in exercise of authority over constitutional rights and the description can lead to all sorts of problems in history so you've got the tradition of permitting but how do we think about the general concern about that discussion? >> i appreciate that concern and here's how i would think about it. first, there is a substantial history of discretion in this particular area starting with juries and texas and west
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virginia that i talked about moving into permitting officers. i think that's inherent in any system if you say it's going to be conditioned upon showing that you have a genuine specific need for self-defense, someone's got to make the decision about whether or not you've made that showing. new york decided it's best to do that by delegating to the local officers and judges. i do appreciate the concern about the discretion. if some exception is required then the court might conclude that some more predictable or stringent prescriptive guidelines are required that you can't have that much discretion. >> thank you. appreciate it. >> thank you, counsel. rebuttal. >> just a few quick points. first of all, i want to highlight when the government was asked for its interest
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behind this permitting regime if said that if it went to a different regime it would multiply the number of firearms in circulation. in the country with a second amendment is a fundamental right, having more firearms cannot be a problem and can't be a government interest to put it cap on the number of firearms and that underscores how completely non-tailored of this is. it might be to keep the number of handguns down but it's not well tailored to identify people that pose a particular risk or anything else because it deprives a typical new yorker of the right to carry for self-defense. a second point is about population density with a lot of discussion but it's very much a double edged sword because when the population density there's a lot of people that have second amendment rights and so you can't just simply say we are not going to have second amendment rights in the areas where there is dense population and i would say your experience of those tell you a lot. by my count, seven of the ten
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largest cities in america measured by population are in the shallow issue of jurisdiction zande mention them in cities like phoenix, houston, these are large cities where it hasn't been a problem if you want to look at the empirical evidence. please also look at the english brief on the topside because it's a very rigorous statistical analysis that shows as a matter of doing statistics right, there's no difference here and the only difference that you see is people that have a handgun for self-defense end up with a better outcome. i want to say a few words about permitting. there may be limited permitting in other contexts but i'm not aware of any contexts whatsoever to show that you have a particularly good need to exercise the constitutional right. of the absolute central defect
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with new york's regime. i want to see a quick word about the history that my friend from the general's office emphasized. it's telling that his first example is tennessee and when you look at the heller decision is a problematic state in terms of its history and the court gave that decision which the majority opinion criticized and then came out with a decision both of which protected second amendment rights. the majority opinion praised those decisions at the same time that it criticized, so to the extent that there is a statute i would put it in the same box. a texas which is the next example and the only other 19th century example if i hurt my friend correctly is more problematic to rely on because texas had a specific constitutional amendment that was similar but different from the second amendment that allowed the legislature to put specific restrictions on the
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rights of relying on 1871 texas is highly problematic from the historical perspective and that just leaves them with examples we can see about by that point, the collective rights view was everywhere. let me finish by saying there is no need for the re- manned here. there are interesting statistics that could be developed, but none of them are relevant to the central defects in this regime. first, in order to exercise a constitutional right that new york is willing to concede extends outside the home, you have to show that you have an atypical need to exercise the right that distinguishes you from the general community. that describes a privilege, not a constitutional right. but then there's the discretion. and the description here has real-world costs. if you want to look at it, look at the amicus brief by the bronx public defenders and other
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public defenders. of the cost of this kind of discretion is that people are charged with violent crimes even though they have no prior record just because they are trying to exercise the constitutional right to self-defense and if you want to know how this impacts policing, one other way making everybody a presumptive person unlawfully carrying his that leads to stopping and frisking everybody. the framers i think it a different vision of the amendment and that is that individuals get to make their decision about whether or not they want to carry a firearm outside of the home for self-defense. in 43 states, people are able to do that. it doesn't mean everybody ends up carrying and it doesn't mean that those 43 states have anymore problems with violent crimes or anything else than the six or seven jurisdictions that don't honor the text, the history and heller.
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