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The Sullivan Act and the Supreme Court: Are New York's Gun Laws Constitutional?

In the heyday of Tammany Hall’s reign over New York City's politics in the early Twentieth Century, Lower Manhattan was rampant with gunslingers and pre-prohibition gangs. Criminals tormented ethnic neighborhoods and even fought pitched battles, placing pressure on lawmakers to strike down street violence.

“Big Tim'', Timothy Sullivan, was an infamously corrupt political operator who responded to the city’s desperate situation with the "Sullivan Act". This law made it a felony to carry unlicensed weapons and required that individuals obtain a license to carry concealed handguns. The Act has since provided a model for gun-control legislation across the country and has survived numerous legal challenges pertaining to whether it violates the Second and Fourteenth Amendments to the United States Constitution.

Towards the end of 2021, the Act's legal durability was once again put to the test. The Supreme Court of the United States (SCOTUS) granted certiorari in a case related to whether New York gun restrictions violate the Second Amendment. Questioning from the Justices in early November 2021 suggests that the Court's conservative majority is poised to declare the Act unconstitutional. Such a decision would have major ramifications for gun regulations during an uptick in violent shootings in the US. It would force New York to adopt less restrictive gun laws and portend challenges to laws in states with similar restrictions, significantly broadening the right to bear arms in public.

SCOTUS' decisions in 2008 and 2010 protected the federal right to have a weapon inside homes for self-defense. However, New York State Rifle & Pistol Association v. Bruen disputed whether the Constitution protects that same right outside the home. The case was instigated when two upstate New York residents - Robert Nash Brandon Koch, and were denied concealed-carry firearms permits for general self-defense earlier this year. Their applications were denied by the relevant licensing officer on the basis that self-defense fails to reflect "proper cause" to obtain a concealed-carry permit, which requires applicants “demonstrate a special need for self-protection distinguishable from that of the general community”.

Nash and Koch responded by joining a lawsuit presented by the New York State Rifle and Pistol Association against New York State, which has made its way to SCOTUS. At an oral argument on 3 November 2021, the case was broken down into several questions including: what constitutional justifications state governments must show to regulate weapons and whether those justifications should be determined through an analysis of gun regulations throughout American history or a strictly doctrinal test.

Paul Clement, the lawyer representing the challengers, argued that the right to self-defense encoded in the Second Amendment protects carrying arms in public. Observing that Americans are free to carry concealed weapons in public in 43 other states, he noted that constitutional rights should not be given at the discretion of a government official

Barbara D. Underwood, the New York Solicitor General, responded by citing the long history of laws that have restricted where guns could be carried. Citing the Statute of Northampton of 1328, which restricted carrying weapons into fairs and markets, she suggested that the authors of the Constitution accepted that there could be limits on carrying weapons in public. The New York Law, she argued, is neither a historical anomaly nor an infringement upon the Second Amendment.

The justices appeared largely skeptical of the historical arguments presented by Underwood and her colleagues. Chief Justice John G. Roberts Jr. posited that people should not require a special reason to exercise their constitutional right to self-defense. He likened the Second Amendment to the First, pointing out that the right to speak freely is not contingent on a permit or special approval from government officials.

The Court’s Conservative judges joined Roberts in challenging the law, suggesting that they found a doctrinal assessment of the law more compelling than one rooted in history. They also added that weapons may be required for self-defense in high-crime urban areas. The remaining liberal minority largely defended the New York Law’s merits and accepted its constitutionality under historical precedent.

The Justices' conversation eventually veered toward whether guns could be regulated in "sensitive’"high-density places, such as Times Square or the New York City Subway. The Court’s Conservative judges appeared convinced that doing so would be constitutionally appropriate, though the Justices ultimately agreed that the question they would answer would only be “whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”.

Joseph Blocher, a Second Amendment expert at Duke University School of Law, told The New York Times that several outcomes are possible if the Court strikes down the law. In one, New York and similar states will be obligated to lower their standards to grant licenses to carry concealed weapons in public. In another, they would have to grant licenses to all applicants that meet a broad set of criteria, as is true in most of the country.

Public officials fear any outcome that curtails their ability to regulate firearms. New York City Mayor Eric Adams said that restricting the state’s ability to regulate weapons will simply instigate violence. Governor Kathy Hochul echoed Adams’ sentiments in similar remarks.

The Court’s decision will set a precedent for other states, like California, Hawaii, Massachusetts and others where similar gun laws are in place. Hannah Shearer, the Litigation Director at Giffords Law Center, said she estimates that 25 percent of Americans would be impacted if the Court decides that the Sullivan Act is unconstitutional. She further remarked that such a decision would likely force these states to follow New York in relaxing restrictions. Legal analysts have also noted that a SCOTUS precedent that favours expanding gun rights could inspire gun activities to litigate against further gun restrictions, such as those that allow states to restrict people with violent criminal records from obtaining open carry licenses.

Gun safety advocates note that broadening the right to carry weapons in public as the country deals with an epidemic of gun violence could pose a significant threat to public safety. Eric Tirshwell, Executive Director of Everytown Law, stated in an interview with Newsweek:

"The stakes are incredibly high any time the Court considers a challenge to public safety laws, particularly amid the increased gun violence we're seeing”.

A verdict on the case is expected by summer. One or two Conservative judges may rule in favour of the New York Law despite what their attitudes during their questioning seem to suggest. Regardless, the cases’ decision will set a precedent for the extent that states can regulate the Second Amendment. It will also inevitably disappoint much of the US population, which is polarised over gun rights, and add fire to the debates over firearms laws that have intensified in the aftermath of high-profile school shootings.

If the Sullivan Act is struck down, it will be unsettling news for those Americans that fear the prospect of their fellow citizens carrying weapons in public. That ruling’s impact could be mitigated if states can regulate weapons in public spaces as the Justices seemed to accept. New York public officials have made it clear that they will aggressively regulate what spaces are deemed "sensitive" but the effect of any future policy decisions remains murky until they are tested. Within the discourse surrounding gun rights, the case's outcome will signal how far states can go in regulating guns before they infringe on the Constitution. A ruling against the Sullivan Act, which has prevailed for over a century, would signal a dramatic turn in that legal discourse.

SCOTUS should be considerate of both the history of gun regulation and the dangerous increase in gun violence occurring across the country as they adjudicate New York State Rifle & Pistol Association v. Bruen. The rule of law should bring the country away from the violent past the Sullivan Act was designed to end and not back towards it. Gunslingers do not deserve the highest stamp of legal legitimacy. The judges should leave it for states to determine their gun laws – seeking to prevent, rather than proliferate, violence. Unfortunately, they seem poised to do the exact opposite.


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