Oral Argument Transcript - focus on Justice Thomas: NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL., Petitioners, v. KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL., Respondents

JUSTICE THOMAS: Mr. Clement, sorry to interrupt you. The -- if we analyze this and use history, tradition, the text of the Second Amendment, we're going to have to do it by analogy. So can you give me a regulation in history that is a base -- that would form a basis for legitimate regulation today? If we're going to do it by analogy, what would we analogize it to? What would that look like?

MR. CLEMENT: Well, Your Honor, I suppose, if you're going to reason by analogy, then you could, you know, go back and you could find analogous restrictions relatively early in our nation's history about prohibiting certain types of firearms or having firearms in -- or any weapon, really, in certain sensitive locations, and I think you could reason in that way.

Here, I think the reasoning works the opposite direction, which is you typically have a baseline right to carry for self-defense, and the only historical analogs that really restricted the right of a typical law-abiding citizen to carry for self-defense to the same degree as the New York law here were those laws, very few, typically post-Reconstruction laws that purported to eliminate any right to carry, openly or concealed. And those court -- those -- those laws were essentially invalidated by every court that was applying an individual rights view of the Second Amendment.

And those decisions, of course, were exhaustively considered by this Court in Heller. And those decisions were praised for their understanding of the Second Amendment and the relationship between the prefatory clause and the operative clause.

And, equally important, the -- those laws were set forth by this Court and singled out by this Court as the very few restrictions historically that were comparable to what the District of Columbia was doing in Heller.

JUSTICE THOMAS: So if we look at the -- you mentioned the founding and you mentioned post-Reconstruction. But, if we are to analyze this based upon the history or tradition, should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?

MR. CLEMENT: So, Justice Thomas, I suppose, if there were a case where there was a contradiction between those two, you know, and the case arose in the states, I would think there would be a decent argument for looking at the history at the time of Reconstruction as -- you know, and -- and -- and giving preference to that over the founding.

I think, for this case and for Heller and I think for most of the cases that will arise, I don't know that the original founding history is going to be radically different from that at Reconstruction.

But I guess what I would say is I do think that's about where it stops, because the point here isn't to look at history for the sake of studying history. The point is to look at the history that's relevant for understanding the original public meaning of the Second Amendment and the Fourteenth Amendment.

MR. CLEMENT: That is nowhere near NYU, Justice Thomas. And, you know, I think, if you -- if you look at their -- the county website, they talk about there are 153,000 people spread over 955 square miles. And yet that's the context in which my individual clients are being denied their Second Amendment rights.

JUSTICE THOMAS: General Underwood, you seem to rely a bit on the density of the population. You say, I think, that states like New York have high density areas.

And implicit in that is that the more rural an area is, the more unnecessary a strict rule is. So, when you are -- when you suggest that, how rural does the area have to be before your restrictions shouldn't apply?

MS. UNDERWOOD: Well, I -- I think the way the New York statute works is consistent with a reasonable rule, which is that there's not a cutoff, there's not a number at which things change, but that licenses -- unrestricted licenses are much more readily available in more -- in less densely populated upstate counties than they are in dense metropolitan areas.

And that is a virtue of the system of having licenses handled by licensing officers who are part of the local community and who take the density of population into account, as well as the -- many other factors.

JUSTICE THOMAS: Well, the -- Mr. Nash lives in a -- quite a low density area. That's why I'm interested in where your cutoff is. It's one thing to talk about Manhattan or NYU's campus. It's another to talk about rural upstate New York.

MS. UNDERWOOD: He actually lives in what I would call an intermediate area. He lives in Rensselaer County, which is not that far from Albany and it contains the City of Troy and a university and a downtown shopping district, but it also contains substantial rural areas.

And that is precisely what the licensing officer here was taking into account when he made the differentiation between, you know, don't take it to the shopping mall, don't take it downtown, but you can take it in the -- in the sort of back-country areas.

JUSTICE THOMAS: But there are -- let's just take, for example, hunting. That's something, I think, we can agree on. You can't hunt and, I'm sure, with a gun in Central Park. But I'm certain that there are places in Upstate New York or even in Western New York where you can. I -- I don't know.

JUSTICE THOMAS: Yeah. So I think what we're asking is if you can have that difference for the purpose of hunting, specifically, why can't you have a similar tailored approach for Second Amendment based upon if it's density in New York City, if that's a problem, the subway, then you have a different set of concerns than Upstate New York?

MS. UNDERWOOD: Well, hunting permits work for particular locations, for particular areas, and -- but it's all one state-wide regime. I mean, and so to here licenses are handled locally. It's not exactly the same, but it's the same model that licensing of -- of -- of -- of handguns, to carry a handgun for self-defense is handled locally, under a single set of criteria but with reference to local conditions. I think that's my answer.

JUSTICE ALITO: Could I —could I —could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense? So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They’re all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area. And they apply for a license, and they say: Look, nobody has told —has said I’m going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?

MS. UNDERWOOD: That is in general right, yes. If there’s nothing particular to them, that’s right.

JUSTICE ALITO: But how is that consistent with the core right to self-defense, which is protected by the Second Amendment?

MS. UNDERWOOD: Because the core right to self-defense doesn’t —as —as this Court said, doesn’t allow for all to —to be armed for all possible confrontations in all places.

JUSTICE ALITO: No, it doesn’t, but does it mean that there is the right to self-defense for celebrities and state judges and retired police officers but pretty much not for the kind of ordinary people who have a real, felt need to carry a gun to protect themselves?

MS. UNDERWOOD: Well, if that ordinary person —Mr. Nash had a —a concern about his parking lot and he got a permit. I think the extra problem in Manhattan is that you —your hypothetical quite appropriately entailed the subways, entailed public transit, and there are lots of people on the subways even at midnight, as I can say from personal experience, and the particular specter of a lot of armed people in an enclosed space —

JUSTICE ALITO: There are —there are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?

MS. UNDERWOOD: I don’t know that there are a lot of armed people.

JUSTICE ALITO: No?

MS. UNDERWOOD: I think there are people —

JUSTICE ALITO: How many —how many

MS. UNDERWOOD: —there are people with illegal guns if that’s what you’re —

JUSTICE ALITO: Yeah, that’s what I’m talking about.

MS. UNDERWOOD: —referring to. Yeah.

JUSTICE ALITO: How many illegal guns were seized by the —by the New York Police Department last year? Do you —do you have any idea?

MS. UNDERWOOD: I don’t have that number, but I’m sure there’s a —it’s a substantial number. JUSTICE ALITO: But the people —all —all these people with illegal guns, they’re on the subway —
MS. UNDERWOOD: I don’t —I don’t —

JUSTICE ALITO: —they’re walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can’t be armed?

MS. UNDERWOOD: Well, I think the subways, when there are problems on the subways, are protected by the —the transit police, is what happens, because the idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement because, when they come, they now can’t tell who’s shooting, and the —the —the —the shooting proliferates and accelerates. And in the end, that’s why there’s a substantial law enforcement interest in not having widespread carrying of guns in densely —

JUSTICE KAVANAUGH: On the standard of particular to them, I would like just to follow up on the other questions, why isn’t it good enough to say I live in a violent area and I want to be able to defend myself?

MS. UNDERWOOD: Well, what happens in these license hearings is that a question is asked: What —what exactly do you mean? Because it —

JUSTICE KAVANAUGH: Well, the statistics.

MS. UNDERWOOD: It depends on how large an area you describe. You could say I live in a violent area and that could be all of New York City, and —or it could be your particular neighborhood. And the closer it gets to your particular neighborhood, the better your —the better your claim is, or your block. Now, I know that —that one of the Petitioners made an assertion about robberies on his block. I also know that there was a hearing about that. And he evidently did not convince the licensing officer that they were sufficiently recent or relevant or couldn’t be dealt with adequately by his own premises license, which he would be entitled to have without any —any justification or proper cause at all. So what I know happens is that those claims are examined by a licensing officer. Now, this gets to your —to questions about discretion and whether that’s effectively handled. But —

JUSTICE KAVANAUGH: Well, that’s the real concern, isn’t it, with any constitutional right, if it’s the discretion of an individual officer, that seems inconsistent with an objective constitutional right. I mean, what if you’re a runner and you say I run a lot, and, as you correctly pointed out earlier, there are a lot of serious violent crimes on running paths. It’s a real problem. Is that good enough?

MS. UNDERWOOD: Probably. I mean, that’s —that’s the —that’s the other part to Nash’s —Nash’s claim, but —

JUSTICE KAVANAUGH: Probably, though

MS. UNDERWOOD: —if that’s the question, that —that is not the way this case was tried. That’s not the way this claim was framed. And if the question is does the system actually operate in the way that we’re describing, then this case should be remanded for a hearing to determine whether it does.
JUSTICE KAVANAUGH: And what’s the problem with the shall issue regimes from your perspective that exists in many other states, including very populous states like Florida, Illinois?

MS. UNDERWOOD: The problem with the shall issue regimes is that they multiply the number of firearms that are being carried in very densely-populated places, and there is a much higher risk, without —without assuming any ill intent on the part of the carriers of weapons, they —they greatly proliferate the likelihood that mistakes will be made, fights will break out —

JUSTICE KAVANAUGH: But —

MS. UNDERWOOD: —guns will be sold.

JUSTICE KAVANAUGH: —has that happened in those states, I mean, can you make a comparative judgment, because it seems like before you impose more restrictions on individual citizens and infringe their constitutional rights, based on this theory, you should have to show, well, in those other states that have shall issue regimes, actually there is a lot more accidents, crime, and I don’t see any real evidence of that.

MS. UNDERWOOD: Yeah, I think the —there is a brief from the social scientists that addresses this, but this law has been in place since 19 —for over 100 years. Starting when the —at —at a time when the —when the law was not as well understood in this area, as —as —as it is now. And so it’s a little bit anachronistic to talk about before you put this law in place you should have evidence. But I believe there is evidence about the success that New York has had in keeping —in —in —that is —in keeping gun violence down that is attributable to the reduced number of guns that are being carried, and particularly in these densely-populated places. So —

JUSTICE KAGAN: General, you know, one of the things that strikes me about this area is that, on the one hand, it seems completely intuitive to me, and I think to many people, I mean, if you think about Justice Thomas’s questions about less populated areas, the rural areas of New York versus the cities, I mean, it seems completely intuitive that there should be different gun regimes in —in New York than in Wyoming or that there should be different gun regimes in New York City than in rural counties upstate. But it’s a —it’s —it’s a hard thing to —to match with our notion of constitutional rights generally. I mean, Mr. Clement makes a big point of this in his brief about how we would never really dream of doing that for the First Amendment or other constitutional rights, allow that level of local flexibility, that you are basically saying we should allow in this context. So I guess I just want to hear you say why you think that is, you know, what justification is there for allowing greater flexibility here?

MS. UNDERWOOD: Well, I think one point is that there is a very wide range of sort of distribution of rural and urban and different kinds of areas, not just across the whole state but within counties. And so delegating the decision-making with appropriate criteria to somebody who is local, which is what this is, these are local judges, in most of the states they’re —they’re judges, to make the relevant fact-findings, to make the relevant inquiry. This is a —this is an interactive process in which these individuals and others are told I’m not going to lift the restrictions now, but if you come back, if you have more to —to say about this, you know, feel free to come back. It’s an ongoing process. It’s one reason why there isn’t so much appellate litigation, is that it is —is that that is what happens. So it’s hard to see how you could specify everything in advance and have it be a clear on/off switch and still take adequate account of, on the one hand, the need for self-defense, and, on the other hand, the strong public safety concerns. And that’s why I think this system —

JUSTICE SOTOMAYOR: I don’t think that was Justice Kagan’s question.

MS. UNDERWOOD: I’m sorry.

JUSTICE SOTOMAYOR: It was on a broader level, I believe. She can correct me if I’m wrong. The issue is no other constitutional right do we condition on permitting different jurisdictions to pass different regulations or —but do we have any other constitutional right whose exercise in history has been as varied as gun possession and use?

MS. UNDERWOOD: Well, I think that’s —that’s right, both at the level —the local level and at the —at the state-to-state level. We have a strong history here of a range of responses from state-to-state that is based on local conditions and local concerns. And what we have within New York is an effort to recognize, we have the same —almost the same range of different kinds of spaces within the state. And this is the effort to accommodate that. And if the history warrants taking local conditions and local population density and so forth into account, it’s hard to think of another way to —to effectively do that. There is, after all, appellate review available here, all the way to the central, you know, to the highest state court.

CHIEF JUSTICE ROBERTS: Thank you, counsel. Justice Thomas, anything further?

JUSTICE THOMAS: But there are —let’s just take, for example, hunting. That’s something, I think, we can agree on. You can’t hunt and, I’m sure, with a gun in Central Park. But I’m certain that there are places in Upstate New York or even in Western New York where you can. I —I don’t know.
MS. UNDERWOOD: County, yes.

JUSTICE THOMAS: Including Rensselaer Yeah. So I think what we’re asking is if you can have that difference for the purpose of hunting, specifically, why can’t you have a similar tailored approach for Second Amendment based upon if it’s density in New York City, if that’s a problem, the subway, then you have a different set of concerns than Upstate New York?

MS. UNDERWOOD: Well, hunting permits work for particular locations, for particular areas, and —but it’s all one state-wide regime. I mean, and so to here licenses are handled locally. It’s not exactly the same, but it’s the same model that licensing of —of —of —of handguns, to carry a handgun for self-defense is handled locally, under a single set of criteria but with reference to local conditions. I think that’s my answer.

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