Home › Arguments › Transcripts › New York State Rifle & Pistol Association Inc. v. Bruen

New York State Rifle & Pistol Association Inc. v. Bruen

Oral argument transcript · No. 20-843 · October Term 2021 · argued November 3, 2021 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: Justice Gorsuch is participating remotely this morning. We will hear argument this morning in Case 20-843, New York State Rifle & Pistol Association versus Bruen. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS

Paul D. Clement: Mr. Chief Justice, and may it please the Court: The text of the Second Amendment enshrines a right not just to keep arms but to bear them, and the relevant history and tradition, exhaustively surveyed by this Court in the Heller decision, confirm that the text protects an individual right to carry firearms outside the home for purposes of self-defense. Indeed, 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. But that concession dooms New York's law, which makes it a crime for a typical Official 1 law-abiding New Yorker to exercise that constitutional right. This Court in Heller labeled the very few comparable laws that restricted all outlets for carrying firearms outside the home for self-defense outliers that were rightly condemned in decisions like Nunn against Georgia. New York likens its law to a restriction on weapons in sensitive places. But the difference between a sensitive place law and New York's regime is fundamental. It is the difference between regulating constitutionally protected activity and attempting to convert a fundamental constitutional right into a privilege that can only be enjoyed by those who can demonstrate to the satisfaction of a government official that they have an atypical need for the exercise of that right. That is not how constitutional rights work. Carrying a firearm outside the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need. Petitioners here seek nothing more Official 1 than their fellow citizens in 43 other states already enjoy, and those states include some of the most populous cities in the country. Those states, like New York, limit the firearms in sensitive places but do not prohibit carrying for self-defense in any location typically open to the general public. I'm happy to continue by point --

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?

Paul D. 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 Official 1 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 Official 1 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?

Paul D. 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 Official 1 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.

Justice Kagan: Mr. Clement, how could it stop there? In Heller, we made very clear that laws that restricted felons from carrying or possessing arms and laws that forbade mentally ill people from doing the same -- we, you know, basically put the stamp of approval on those laws. And those laws really came about in the 1920s, didn't they?

Paul D. Clement: You know, Justice Kagan, I -- I -- I think some of those laws in their current form took that shape 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 -- you know, I think, obviously, there is a different tradition with respect to felons, in part, because, you know, you start at the time of the framing, and most felonies are capital crimes. So, you know, the -- the -- the need to disenfranchise felons for firearm Official 1 possession was a little different at the framing. So I think you do need to make those kind of adjustments, but I think those adjustments can be made. I think, really, there are two reasons to at least be skeptical of post-1871 history. I mean, the first is I just don't really understand why it's terribly relevant in forming the original public meaning of the Constitution. But, of course, the second reason is it's just about that time that the collective rights view started to creep into the decisions of some state supreme courts. And I think -- so in Heller is a perfect example that this Court didn't absolutely stop its analysis in 1871, but, when it looked at those later sort of postbellum state supreme court decisions, the ones that relied on a collective rights view were given very short shrift. And I think that's the appropriate way to sort of deal with these historical analogs.

Justice Breyer: Well, I have two -- two questions. One -- one is on history. I mean, it's law office history. In McDonald, we Official 1 had professors of history ran departments in the English Civil War and they all said the history in Heller was wrong. You've read the briefs here. I don't know. You read the briefs of the historian of the Air Force, and she says it's this way and the other ones say it's the other way. How are we supposed to deal with that? There's a good case -- this is a wonderful case for showing both sides. So I'm not sure how to deal with the history. And my other question is I'm not sure what New York does. We're talking here about outside New York City. New York says we have about 90,000 licenses to carry concealed weapons or maybe it's 40,000 or maybe it's 10,000. But there's been no trial. There's been no proceeding. All it is is dismissed law in the -- so -- so -- so how are we supposed to find out, A, what the history is, which is my minor question, really -- there's a lot of debate on that -- but, second, how are we supposed to know what we're talking about in terms of what New York does since they say they give thou -- including to one of your clients, they give a Official 1 license to carry a concealed weapon? So there are concealed weapon licenses all over the place. So -- so what are we supposed to do about those two things?

Paul D. Clement: Well, Justice Breyer, let me start with the major question, which is -- because I think that's actually very straightforwardly answered -- which is there's no serious question about the experience of the individual Petitioners in this case. And they both sought unrestricted licenses and they were both denied unrestricted licenses, notwithstanding that they satisfy every other requirement that the state has to be licensed for a concealed carry. And so I'm happy to debate why the state statistics don't really prove anything particularly relevant, but I think they're irrelevant for a more fundamental reason. I mean, you know, if there were a debate between the parties about whether 95 percent or 90 percent of the citizens of New York were denied their confrontation rights in criminal trials, but you had before you two individuals Official 1 who were clearly denied the right to confront the witnesses against them, you wouldn't worry about the other 95 percent --

Justice Kagan: Well, I have to say --

Paul D. Clement: -- or the other --

Justice Kagan: -- Mr. Clement --

Paul D. Clement: -- 90 percent.

Justice Kagan: -- that's not really the way your brief is written. The way your brief is written is to say, you know, this is a -- a -- a -- a regulatory scheme that deprives most people of the right to carry arms in self-defense. And your brief puts a lot of emphasis on that, like don't believe the state that they are going to really take seriously people's need for self-defense because they always reject these licenses. You know, if you had a bunch of statistics which suggest that the state is quite sensitive to people's need for self-defense and gives these licenses a significant amount of the time, you might think differently about the regulatory scheme, wouldn't you? I mean, that's the way your brief reads to me.

Paul D. Clement: Well, Justice Kagan, two Official 1 points. One is I wouldn't feel any differently with respect to my two individual clients, who were denied their right to exercise their Second Amendment rights. But, more broadly, the reason I'm so confident that this regime is problematic on its face is because, on its face, at least as interpreted by the highest court in New York, the requirement you need to show in order to carry concealed for self-defense but not for hunting and target practice is you have to show that you have a need for self-defense that distinguishes you from the generalized community, from the general community. So New York's law on its face says that the only way that you can carry for self-defense is if you demonstrate your atypicality with respect to your need for self-defense. And that's --

Justice Breyer: So what do they say? Because, look, Mr. Koch can. He has his license. 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, et Official 1 cetera, concealed, and in your opinion, is it supposed to say you can carry a concealed gun around the streets or the town or outside just for fun? I mean, they are dangerous, guns. I mean, so what's it supposed to say?

Paul D. Clement: It's -- it's supposed to be what New York says that they give to lots of applicants at least in other counties, which is an unrestricted license, which basically means that somebody who has demonstrated to the state that they're of good moral character, that they have all the necessary training, whatever the state requires --

Justice Breyer: So 40,000 --

Paul D. Clement: -- whatever the state --

Justice Breyer: -- or 50,000 or 60,000 is not enough. You have to show you have a good moral character, and then, if you just would like to carry a concealed weapon, which is a dangerous thing, as I said, you can just do it, just that's what the Fourth -- that's -- in your opinion, that's what you want, no restrictions?

Paul D. Clement: Well, certainly, New York is entitled to have laws that say that you Official 1 can't have weapons in sensitive places, in addition to whatever regulation --

Justice Breyer: No, no, I'm not saying --

Paul D. Clement: -- for carrying that.

Justice Breyer: Right, right. I'm not saying that.

Paul D. Clement: And -- and -- and New York has those laws, and we don't challenge those. What we would -- what we're asking for -- I mean, one way to think about it is we're asking 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 is they have an intent to go hunting. They don't have to say: I have a really good reason to go hunting. I don't have to say I have a better reason to go hunting than anybody else in my general community. And it's there --

Justice Breyer: Yeah. Well, the difference, of course, you have a concealed weapon to go hunting. You're out with an intent to shoot, say, a deer or a rabbit, which has its Official 1 problems. But, here, when you have a self-defense just for whatever you want to carry a concealed weapon, you go shooting it around and somebody gets killed.

Paul D. Clement: With respect, Justice Breyer, that's not been the experience in the 43 jurisdictions that allow their citizens to have the same rights that my -- my clients are looking for. This is not something where we're asking you to take some brave new experiment that no jurisdiction in Anglo-American history have -- have --

Justice Sotomayor: Mr. Clement --

Paul D. Clement: -- have ever done.

Justice Sotomayor: -- may I -- you're talking about 43 other jurisdictions. And I suspect that when we get into those 43 other jurisdictions that there are going to be a handful that are identical. The one thing that I've looked at in this history is the plethora of regimes that states pick, and that starts in English law, through the colonies, through post-Constitution, to post-Civil War, to the 19th Century, to even now, those 43 states that you're talking about, Official 1 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 tradition of carrying weapons is that states get a lot of deference on this. And the one deference that you don't -- haven't addressed is the question presented is what's the law with respect to concealed weapons. In 1315, the British Parliament specifically banned the carrying of concealed arms. In colonial America, at least four, if not five, states restricted concealed arms. After the Civil War, there were many, many more states, some include it in their constitution, that you can have a right to arms but not concealed. You can go to Alabama, Georgia, and Louisiana, which are now more open -- are more free in granting the right to carry guns, but they prohibited through their history concealed weapons, the carrying of concealed weapons. It seems to me that if we're looking at that history and tradition with respect to Official 1 concealed arms that there is not the same requirement that there is in the home. One of the things Heller pointed to was there were few regulations that prohibited the carrying or the keeping of arms in homes. But that's not true with respect to the regulations about keeping of arms outside of homes. Putting aside the -- the prohibitions, regulations on sensitive places, regulations on the types of people, it seems to me that I don't know how I get past all that history --

Paul D. Clement: Well, Justice --

Justice Sotomayor: -- without you sort of making it up and saying there's a right to control states that has never been exercised in the entire history of the United States as to how far they can go in saying this poses a danger.

Paul D. Clement: So, Justice Sotomayor, there's a lot to that question. I'll try to take it, you know, sequentially if I can. I mean, you know, let's start with concealed carry restrictions. I mean, it is true that during time periods where open carry Official 1 was allowed that some states did specifically restrict concealed carry on the precise theory that if we allow you to carry open, then, if you're carrying concealed, you're probably up to no good. And Heller did exhaustively survey those cases, and what it concluded is that if a state allows open carry, then it can prohibit concealed carry, I suppose vice versa, and --

Justice Sotomayor: But you're asking us to make the choice for the legislature. We're only looking at concealed here.

Paul D. Clement: We are not asking you to make that, and --

Justice Sotomayor: Well, yeah, you are, because you're conditioning history on a different fact.

Paul D. Clement: I don't think we're asking to -- for anybody to make that choice. In fact, the relief we've asked for is to have an unrestricted license because, under New York law as it currently exists, that's the only way that you can have a carry right for a handgun. But, in framing our relief in the complaint, we, you know, framed it so that there Official 1 are other relief consistent with the decision. So, if New York really wanted to say, you know, no, we have a particular problem with concealed carry, notwithstanding that traditionally that's 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've said here. Now I don't think anybody expects that to happen because, if you look at the New York law specifically, it's a law that prohibits the carrying of handguns except for permit holders, and then its provisions about permit holders speak specifically to concealed carry. So that's why we've framed our request the way we have. But what we're doing, I think, is completely consistent with the majority decision in Heller's analysis of the historical cases. We've said that those very few states that tried to prohibit both concealed carry and open carry and so gave no outlet for the right to carry a firearm for self-defense outside the home, those were the laws that the Heller majority identified as being analogous to the D.C. restriction in Heller that was invalidated. Official

Justice Sotomayor: I do know that many of the laws conditioned or retained the right of the state to decide which people were eligible. And the historians -- to carry the arms, that you had to be subject to the approval of the local sheriff or the local mayor, et cetera. And during the Civil War, that was used to -- to deny Black people the right to hold arms. We now have the Fourteenth Amendment to protect that. But why is a good cause requirement any different than that discretion that was given to local officials to deny the carrying of firearms to people that they thought it was inappropriate, whether it was the mentally ill or any other qualification? I -- that's how I see the good cause as fitting in -- within that tradition.

Paul D. Clement: So -- so let me make a point about how it's so different from that tradition, but then also let me make a historical point. This -- it's radically different to say that if you are a typical New Yorker, so you qualify -- you satisfy every other Official 1 qualification, you're not a felon, you don't have any mental health problems, you've done everything else we've asked you, but you are typical in the sense that you don't have an atypical need to carry for self-defense, I don't think there's any historical analog to that. As to the historical examples, with all due respect, I -- I don't think I read the surety laws the same way that you do. Those surety laws, which were only in -- in -- in place in a minority of jurisdictions, but, nonetheless, I think they help us because those surety laws, first of all, start with the proposition that there's a baseline right for every person, every member of the people, protected by the Second Amendment, to carry. And what they do is, if somebody, essentially, as a complainant, can come into court and say that somebody is -- has a propensity to use them in an offensive or violent way, then, if you satisfy a neutral fact-finder, then you don't automatically get to disarm that person. You put them to the choice of posting a surety, and then they can continue to possess their firearm. Official

Chief Justice Roberts: Mr. Clement, you -- in your opening, you talked about the right applying in any location typically open to the general public. I'd like to get some sense about what you believe could be off limits, like university campuses. Could they say you're not allowed to carry on a university campus?

Paul D. Clement: So, Mr. Chief Justice, I -- I think the answer to your question is yes. And I think that what I would say, though, first of all, is the language I was talking about, any location open to the general public, that's right from the license denial on Joint Appendix page 40 -- 41. So that wasn't loose language on my part. That's -- that's right there from where we are told, in capital letters, where we cannot carry, any location, all caps, typically open to --

Chief Justice Roberts: Well, what sort of place do you think they could be excluded from? In other words, you can get a permit, but the state can impose certain restrictions, for example, any place in which alcohol is served. Official

Paul D. Clement: So --

Chief Justice Roberts: Can they say you cannot carry your gun at any place where alcohol is served?

Paul D. Clement: So, Mr. Chief Justice, I think you -- probably the right way to look at those cases would be look at them case by case and say, okay -- this Court in Heller, for example, said sensitive places include government buildings and schools. I think those, you can probably tap into a pretty good tradition. I think any place that served alcohol would be a -- a -- a -- a -- you know, a tougher case for the government. I think we would have a stronger case. They might be able to condition the license holder on not consuming any alcohol. There might be a variety of laws. And we could have those debates, but --

Chief Justice Roberts: What about a football stadium?

Paul D. Clement: I -- I -- I -- I think, again, football stadium, you probably take it on its own and -- and look to the historical analogs. But here's -- I guess, if I could Official 1 offer some general principles, I think there's two principles. One is, you know, restriction of access to the place is something that I think would be consistent with the way government buildings have worked and schools have worked. Not any member of the general public can come in there. They restrict access. With -- with or without a gun, if you're an adult that has no business to be in a school, you're excluded. So I think that's a factor that would support treating that as a sensitive place. A second principle that I would offer is these sensitive place restrictions really are a different animal than a carry restriction because I think a true sensitive place restriction is not just going to limit your ability to carry concealed, but it's going to be, say, this is a place where no weapons are allowed. You know, whether they're firearms or other weapons, no weapons are allowed. And then the third point that I would say -- and this is just an analogy, but I think it's a useful analogy -- is I think the way to think about this is a little like the nonpublic Official 1 forum doctrine in the First Amendment, which is you -- you start with the place and you try to understand is this a place where, given the nature of the place, its function, its restrictions on access, that weapons are out of place? And, if so, that's probably a sensitive place --

Justice Kagan: So -- but --

Paul D. Clement: -- where the state can say --

Justice Kagan: -- but I think --

Justice Barrett: But what --

Justice Kagan: -- what the Chief Justice is trying to do is figure out how those cash out in the real world. So I'll give you a few more. New York City subways.

Paul D. Clement: So, you know, I -- I think that the -- the question of whether you could restrict arms in the subways, you know, I mean, you -- you'd have to go through the analysis, I think, and say, you know, is there a restriction on access generally? I suppose it's --

Justice Kagan: No, I mean, I got the analysis -- Official

Paul D. Clement: Okay.

Justice Kagan: -- all three parts of it. How does it cash out? What does it mean?

Paul D. Clement: You know, I -- I don't know how those are going to cash out in particular cases because I think the way that you would normally deal with that is you'd, you know, look at all the briefing we had in the this case on the history of these various things. And so, you know, on behalf of my individual clients, I suppose I could give away the subway because they're not looking to go -- you know, they're not in Manhattan.

Justice Kagan: The Chief Justice --

Paul D. Clement: They're in Rensselaer County.

Justice Kagan: -- started with universities, and you said that that would be all right. Did you mean that?

Paul D. Clement: Yeah, I -- I -- I -- yes, I -- I -- I --

Justice Kagan: Because --

Paul D. Clement: -- I did mean that.

Justice Kagan: -- because -- because Official 1 that's open for -- you know, anybody can walk around the NYU campus.

Paul D. Clement: Well, NYU doesn't have much of a campus. (Laughter.)

Justice Kagan: I -- I would -- I would go back to New York, and I think you'll find that that's wrong. Similarly, the Columbia campus.

Paul D. Clement: Columbia's got a campus, and I don't know whether they restrict access there at all. And -- and, you know -- and maybe, you know, if they don't restrict access to parts of the campus, maybe those are parts of the campus where they wouldn't enforce the policy anyways. The point I'm trying to make, though --

Justice Kagan: But you can't say, you know, there are 50,000 people in one place, you know, a -- a -- a ballpark, there are 50,000 people in one place, they're all on top of each other, we don't want guns there. That's -- you -- you couldn't -- the -- the -- the city or the state couldn't do that? Official

Paul D. Clement: I think they might well be able to, because, again, you can't get into Yankee Stadium without a ticket. I'd have to understand in, you know, many of these jurisdictions -- you know, I don't know every jurisdiction. I don't know enough about Yankee Stadium. But, you know, a lot of these stadiums are not run by the government anyway. So, if a private entity wants to restrict access, I don't know where the state action is for there to be a second --

Justice Kagan: Suppose the state says no protest or event that has more than 10,000 people.

Paul D. Clement: I -- I -- I think that might be, you know, trickier. Maybe they could justify that under strict scrutiny, but I don't think that would be a sensitive places --

Justice Barrett: But why not?

Paul D. Clement: -- restriction.

Justice Barrett: I mean, I guess it's about the level of generality, all these questions that Justice Kagan's asking you or that the Chief asked you, if -- if you concede, as I think the historical record requires you Official 1 to, that states did outlaw guns in sensitive places, can't we just say Times Square on New Year's Eve is a sensitive place? Because now we've seen, you know, people are on top of each other, we've -- we've had experience with violence, so we're making a judgment, it's a sensitive place.

Paul D. Clement: So here -- here's what I would suggest, that the right way to think about limiting guns in Times Square on New Year's Eve is not as a sensitive place but as a time, place, and manner restriction. And that might be a perfectly reasonable time, place, and manner restriction, but I don't think that's -- the sensitive places doctrine, as I understood it, from -- and, obviously, it's a brief reference in the Heller decision, so I -- I may not fully understand it -- but I understood that those were certain places where they were just no weapon zones all of the time because of the nature of that institution. And I think it's probably worth thinking about rallies and Times Square, that there may be restrictions, but they would be Official 1 done --

Justice Alito: Well, Mr. Clement --

Paul D. Clement: -- under the rubric of --

Justice Alito: -- could we --

Paul D. Clement: -- time, place, and manner.

Justice Alito: -- could we start with the purpose of the personal right to keep and bear arms? And the core purpose of that right, putting aside the military aspect, is self-defense. So starting with that, could we analyze the sensitive place question by asking whether this is a place where the state has taken alternative means to safeguard those who frequent that place? If it's a -- if it's a place like a courthouse, for example, a government building, where everybody has to go through a magnetometer and there are security officials there, that would qualify as a sensitive place. Now that doesn't provide a mechanical answer to every question, and -- but it -- would that be a way of analyzing -- of -- of beginning Official 1 to analyze this?

Paul D. Clement: Justice Alito, that might be a way of analyzing it. The reason I'm a little bit reluctant to go that route as opposed to really think about the nature of the place and the restrictions that are associated with its core activity is because I worry that, if you went that direction, then the state would say: Well, you know, this part of the city, we have a lot of police officers, and so you really don't need to exercise your own individual self-defense right there because we -- we have your back. And I --

Justice Alito: Well, I don't know --

Paul D. Clement: -- and I don't think that's --

Justice Alito: -- I don't know what the -- I don't know what those places would be, but continue.

Paul D. Clement: Well, I think my friends would tell you that, you know, the whole City of New York is that way. And I -- I -- I think there are a lot of people in New York, and New York may have a lot of reasons to have regulations that are a Official 1 little bit different than in upstate New York, where my individual Petitioners reside, but I don't think that they can take all those people in New York and deny them of their fundamental constitutional --

Justice Breyer: So how --

Paul D. Clement: -- rights.

Justice Breyer: -- how do we do this?

Justice Kagan: But you just said --

Justice Breyer: How --

Chief Justice Roberts: Justice Breyer.

Justice Breyer: How? I mean, so far, we've been -- and to my mind, I think NYU does have a campus. You're not certain. All right? (Laughter.)

Justice Breyer: You think that in New York City people should have considerable freedom to carry concealed weapons. I think that people of good moral character who start drinking a lot and who may be there for a football game or -- or some kind of soccer game can get pretty angry at each other, and if they each have a concealed weapon, who knows? And there are plenty of statistics in Official 1 these briefs to show there's some people who do know, and a lot of people end up dead, okay? So what are we supposed to do? To sort of float around, like with NYU, and say, hey, oh, this is the rule, it seems to work out in upstate New York, we don't know, of course, and we do know that your client is carrying a concealed weapon because he has a right to in some instances? And even following Heller and following the history, which I thought was wrong, even so, what are we supposed to say in your opinion that is going to be clear enough that we will not produce a kind of gun-related chaos?

Paul D. Clement: So, Justice Breyer, I would sort of point you to two things that maybe would give you some comfort. I mean, one is the experience of the 43 states, and there are amicus briefs on both sides getting into the empirical evidence, but there really isn't a case that those 43 states that include very large cities like Phoenix, like Houston, like Chicago, they have not had demonstrably worse problems with this than the five or six states that have the regime that New York has. So Official 1 that's one place to look. The other place that I think you would find some -- some -- something persuasive there is their own amicus brief on their side by the City of Chicago, because the City of Chicago is in a shall issue jurisdiction, and the City of Chicago goes on to sort of, you know, essentially brag about all of the ways that they've done, consistent with that regime, to reduce crime in Chicago that probably doesn't have a direct analog in downstate Illinois. But, of course, you know, one of the problems with this case --

Justice Kagan: I mean, most people think that Chicago is, like, the -- the world's worst city with respect to gun violence, Mr. Clement.

Paul D. Clement: Chicago in their corporate --

Justice Kagan: And Chicago doesn't think that, but everybody else thinks it about Chicago.

Paul D. Clement: And nobody thinks that about Phoenix, and nobody thinks that about Houston, and nobody thinks that about Dallas, Official 1 and nobody thinks that about San Diego, which, even though it's in a restricted state, is a shall issue jurisdiction.

Justice Sotomayor: Mr. Clement?

Chief Justice Roberts: Thank you, Mr. Clement. Justice Thomas, anything further?

Justice Thomas: Mr. Clement, where does Mr. Nash live?

Paul D. Clement: Mr. Nash lives in Rensselaer County, New York, which --

Justice Thomas: Is that close to NYU?

Paul D. 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.

Chief Justice Roberts: Justice Breyer, anything further? Justice Alito? Justice Sotomayor?

Justice Sotomayor: Counselor, your Official 1 client is permitted to -- Mr. Nash, one of the two -- to carry when engaged in outdoor activities of any kind, like camping, hunting, and fishing, on back roads, with the few -- substantially lesser number of people. Tell me how many places in Rensselaer County does your client have a self-defense risk.

Paul D. Clement: Well --

Justice Sotomayor: A serious -- I mean, at what point do we look at the restriction and the burden it places? Meaning, yes, I'm sure it has a center of town, I'm sure it may have a shopping center or two, but it's not like he's totally restricted from carrying a gun. He's just restricted from carrying one basically in those sensitive places --

Paul D. Clement: Well --

Justice Sotomayor: -- because the rest of his home is pretty distant from each -- from other homes.

Paul D. Clement: So, Justice Sotomayor, just so we start on the same wavelength or the same page, literally, page 41 of the Joint Appendix, this tells Mr. Nash where he can carry Official 1 concealed. And what the officer, McNally, told him was: "I emphasize that the restrictions are intended to prohibit" -- italicized -- "you from carrying concealed in ANY LOCATION" -- all caps -- "ANY LOCATION typically open to and frequented by the general public." Now I would submit --

Justice Sotomayor: That's the point.

Paul D. Clement: -- that's -- that's a pretty broad number of places in Rensselaer County. And it would include, I fear, most of the roads in the county at night when you're traveling and might think that you have a need. I mean, if -- if Mr. Nash has a relative whose car breaks down and has to have a -- a change of tire and he wants to go out and assist them with that and wants to make sure that he is -- he -- he is in a position to defend himself, I don't think he can do it consistent with this license restriction. And at the end of the day, I think 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 or they face atypical risks. Official

Chief Justice Roberts: Justice Kagan, anything further?

Justice Kagan: Mr. Clement, you -- you said, I think, in passing that it would be fine if New York banned open carry so long as it allowed concealed carry. Is that correct?

Paul D. Clement: Certainly, that's consistent with the relief we're looking for. We're looking for some outlet to exercise our constitutional right to carry firearms outside the home.

Justice Kagan: How is it consistent with the history? I mean, the history seems very clear to me that it's sort of like the exact opposite of how we think about it now, in other words, that there are lots of places that wanted people to display their arms as a matter of transparency, and what they prohibited was the concealed carry. So I'm thinking, like, if you look to the history, you end up with a completely different set of rules from the ones that you're suggesting with respect to concealed versus open. And it's a -- it's an example, I think, of -- of the difficulties of looking to history, Official 1 where people were operating on such different, to use your term, wavelengths.

Paul D. Clement: So, Justice Kagan, first of all, I would have thought that, you know, we sort of crossed the bridge to use history in this context in Heller. But, if we're going to look to history --

Justice Kagan: No, I think --

Paul D. Clement: -- I actually think, if --

Justice Kagan: -- Mr. Clement, the question is how to use history and, you know, where do you look, you know, how far do you look. Do you look to the 1920s when all these felon laws were passed, as well as public purpose laws of exactly the same kind as New York. So one question is, how far up do you look? Another question is, you know, with what sense of flexibility do you look? And I think that this is an example of that. It's like, no, we're not going to ask for an exact analog because we realize that the world has changed and regulatory schemes are very different Official 1 because regulatory interests are very different. If we tried to copy history, we would find ourselves in a world in which the only thing that a state could do is tell people, you know, you can't carry it concealed, you have to carry it open.

Paul D. Clement: So, Justice Kagan, let me give you an example of how I think the Court should use history in this context, and I'll go exactly to the Georgia statute that was at issue in Nunn against Georgia. Now that was a statute that, on its face, prohibited carrying simpliciter. So it didn't say open. It didn't say concealed. Now the court that analyzed that reversed -- vacated the indictment of somebody under the statute because the statute didn't specify and they didn't think that person had carried concealed, but when they looked at it, they interpreted it in light of the context at the time and they thought, boy, it is not consistent with the Second Amendment that Georgia actually -- that court actually thought directly applied to the state, which is interesting, but -- but they said that's not Official 1 consistent with the Second Amendment to prohibit any means for carrying. Then, consistent with kind of the norms of the time, kind of almost as like a severability holding, dare I say it, they said, well, all right, the open carry, that's allowed. I mean, rather, that's -- that's -- we're going to say that to the extent this statute prohibits open carry, that's unconstitutional, but to the extent that it prohibits concealed carry, that's constitutional. Now the -- the -- the fundamental problem with the law that carries over as a direct analogy is it gave no outlet to exercise the constitutional right to carry for self-defense. The norms of the time had a favoring for open carry over concealed. I will grant you that the norms of the time have flipped, and, certainly, in New York, based on the rest of their licensing regime, I assume that they would prefer that my client -- clients carry concealed rather than openly. But I think that's the way you can use the history, and you can use it with some contextual sensitivity, but you cannot sort of, Official 1 you know, throw it all out, because I do think the analogy is pretty clean between a law that prohibits any form of carry and what New York is doing here. And, of course, that was one of the laws that this Court specifically looked to in the Heller decision as well.

Justice Kagan: And -- and when you look at this history in the properly contextual way, do you see no difference between the kind of regulation that was allowed in the home and the kind of regulation that was allowed in public places? Because it seems to me that the history -- and -- and Justice Sotomayor developed it at some length -- but the history is replete with that distinction, that the -- and, indeed, Heller recognizes that. Heller recognizes that the home is a very special place, both because -- you know, for similar reasons for the Fourth Amendment but also because the need for self-defense is so much greater there.

Paul D. Clement: So I -- I -- I think, in terms of -- I'm not going to tell you that the context doesn't matter at all. I mean, take the Official 1 sensitive places law, right? They just -- they don't really affect the keep right the way that they affect the carry right, unless you try to say the entirety of Manhattan is a sensitive place, and then they might affect both. But, in general, the -- the analysis is going to be slightly different. But I would say that, you know, I don't think those differences are material here. I think, if the District, instead of just banning handguns inside the home, had adopted a permitting regime that required District residents to show that they had an atypical need to possess a handgun inside the home, I'm not sure anything in Heller would have been different because it's just inconsistent with a constitutional right to either ban the exercise of it or say that it's a privilege that you can only exercise if you show that you are atypical from the rest of the people who are equally protected by the constitutional right.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Mr. Clement, are you Official 1 -- are you able to hear me?

Paul D. Clement: Loud and clear.

Justice Gorsuch: Great. Some of your amici have asked us to provide further guidance to lower courts in cases beyond your own. And so, putting aside your -- your case for the moment, they've pointed out that some lower courts have refused to apply the history test, for example, and said they will not extend Heller outside the home until this Court does. Other courts have applied intermediate scrutiny and variations of that. Some have suggested that strict scrutiny would be appropriate to treat this right comparably to other rights under our modern tiers of scrutiny. I -- I -- I -- I'd just be curious what -- what -- what views you have about all that.

Paul D. Clement: Thank you, Justice Gorsuch. I -- I think we would start with the idea that text, history, and tradition is an appropriate way to deal with this right. That's what the Court said in Heller. I think this Court would allow the Court to make clear that the same analysis Official 1 applies outside of the home. And I think this case, like Heller, is such an outlier that the Court wouldn't have to say too much more unless it wanted to. I think, if it wanted to, though, it would already, I think, go a long way to correcting some of the mistakes in the lower court to say that text, history, and tradition is the test, not part of the test but the test inside and outside the home. And if this Court prefers to go the level of scrutiny route, I would simply say two things. One, we would prefer strict scrutiny as being consistent with a fundamental constitutional right. But, even if it's going to be intermediate scrutiny, probably the single-most important thing to remind the lower courts is that intermediate scrutiny requires narrow tailoring. And a law like this that takes a person who has no proclivity whatsoever, unlike the surety laws, to misuse firearms and says you simply can't carry them for self-defense anywhere frequented by the public because you haven't demonstrated an atypical need, I mean, Official 1 that's about as untailored a law as I can imagine. So I think, if you did one of those two things -- either make clear that it's text, history, and tradition outside the home as well as inside or made clear that narrow tailoring is an integral component of the test -- that would go a long way to clearing up some of the confusion in the lower courts.

Justice Gorsuch: And I know you -- you've had a substantial debate with your friends on the other side about the Statute of Northampton. We haven't heard about that today, and I just wanted to give you a chance.

Paul D. Clement: Thank you, Justice Gorsuch. I'd say just a couple of quick things about the Statute of Northampton. First of all, I think that it was very clear from the Knight's Case and the treatises that this Court relied on in Heller that by the time of the framing of the English Bill of Rights, that was not a general prohibition on carrying outside the home but was a prohibition on either carrying unusual and dangerous weapons or using common weapons in a way that terrorized Official 1 the public. And so I don't think that that supports the other side's position here. And the second thing I would say is that probably the single-most obvious point about the history is there just are no reported cases on this side of the Atlantic, not in actual reporters, not in newspaper reports about crimes of the day, that show anybody being prosecuted for a violation of the Northampton crime simply by carrying common firearms for self-defense. And the one U.S. early court that dealt with this, the common law equivalent of the statute, was State against Huntly in North Carolina, which was an opinion that was cited favorably in the majority opinion in Heller, and that case went out of its way to say that simply carrying firearms per se is not an offense; it's the intent to terrorize the people that is prohibited by Northampton.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Kavanaugh.

Justice Kavanaugh: Mr. Clement, I have several questions. Official 1 First, I want to make sure I understand your main problem here with this permitting regime, as I understand it, is the discretion that's involved with the permitting officials, and your point that that's just not how we do constitutional rights, where we allow basic blanket discretion to grant or deny something for all sorts of reasons. But I understand you would not object or do not object to the regimes that are used in many of the other 42 states, the shall issue regimes. I mean, there could be particular problems with those, but I do not understand you to object to shall issue regimes. Is that accurate?

Paul D. Clement: That's accurate, Justice Kavanaugh. And as you say, they're the -- you know, especially if you have something like good moral character, there is the possibility for discretionary abuse in those regimes as well. But the thrust of this case is, you know, we -- we'd like what they're having. We'd like what the people in the other 43 states are allowed to do and exercise their rights, and in many of those states, it's shall issue. Official 1 And -- and that is, of course -- you know, New York purports to have effectively a shall issue regime with respect to hunting. The only other caveat I wanted to add is it's the discretion combined with the atypicality requirement. So, if they came up with some, you know, sort of, like, magic wand that gave them a precise reading of typicality, and so there was no discretion, but the standard was still at the end of the day 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 as well.

Justice Kavanaugh: Right. A shall issue regime with an atypicality requirement would be no good in your view?

Paul D. Clement: Exactly.

Justice Kavanaugh: Yeah.

Paul D. Clement: Even if it could be somehow if you could come up with some objective standard of typicality.

Justice Kavanaugh: Okay. And the issue before us, as I understand it, is the permitting regime. We don't have to answer all Official 1 the sensitive places questions in this case, some of which will be challenging no doubt, is that accurate?

Paul D. Clement: That's 100 percent accurate. And it's -- so there's sort of a market test of the accuracy of that, which is New York does have sensitive place laws, and we have not challenged them in this litigation.

Justice Kavanaugh: And then, to follow up on Justice Thomas's question and also Justice Gorsuch's, we should focus on American law and the text of the Constitution and we don't start the analysis in a vacuum, but we start it with the text, which you say grants a right to carry, and then historical practice can justify certain kinds of regulations, but the baseline is always the right established in the text. And there will be tough questions, as the questions -- arguments revealed, about what the historical practice shows, but the default or baseline is the text, correct?

Paul D. Clement: That -- that -- that's absolutely right, Justice Kavanaugh. And, of course, that's no different from something like the First Amendment, where, of course, you start Official 1 with the text, and it's very emphatic text, you know, no law abridging speech, but then you look to history and tradition just to realize, oh, well, there's a long tradition of treating defamation and libel different going back to the framing, so you use that history to inform the text, but the focus is on the text.

Justice Kavanaugh: And last question, following up on Justice Gorsuch's question, is he points out some courts have used intermediate scrutiny or strict scrutiny. You know, those are balancing tests. I think Professor Alicea's amicus brief is very helpful on that. There's well-developed law in other areas. But it'll be no surprise to you I have concern that that would just be a balancing test that would leave -- make it a policy judgment basically for the courts. And I don't know why we would -- you say you'd be okay with that, but I'm not sure why we would smuggle all that into here and then it would just be a policy judgment that would be unanchored from the historical practice.

Paul D. Clement: So, Justice Kavanaugh, two points just in response to that. Official 1 One, you know, as -- as you articulate the concerns with interesting balancing, that might be a reason that if you're going to go with the level of scrutiny's approach, you would go to strict scrutiny, where I just think there's less play in the joints. But the second --

Justice Kavanaugh: Well, I mean, maybe. But what's a compelling interest? Do you have a compelling -- there's a lot of play in the joints in -- in some of the other areas, so I don't know that you want to open that door.

Paul D. Clement: And -- and -- and -- and the second point I was going to make, though, Justice Kavanaugh, which is maybe more consonant with the thrust of the question is, you know, whatever was the case in Heller, where I -- I sort of read the majority opinion as actually already rejecting interesting balancing, but whatever was the case in Heller, you know, we now have this 13 years of experience with lower courts applying the test. And in -- in our view, you know, they've made a muddle of it and the -- you know, it's -- it's probably -- the experience of the Official 1 last 13 years is probably a very good reason to prefer a text, history, and tradition approach to this area of the law.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: Mr. Clement, I have one question. So a couple times, in response to my question about Times Square and New Year's Eve and then just now as well to Justice Kavanaugh, you made reference to the First Amendment. And, obviously, a lot of the questions that have been asked have been focused on how do we -- how can the state fairly regulate, because everybody agrees there have to be some regulations, and it might not be the case that we can always find exact historical analogs, so we're turning to the First Amendment. In response to me, you said, well, that might be analogous to a time, place, and manner restriction. So do you think the First Amendment and the, you know, edifices that we have structured around it would be a helpful place to look? Is that what you're suggesting? Official

Paul D. Clement: Well, I'm suggesting that there is a lot of useful teaching in the First Amendment. I'm not sure I'm suggesting you should just take sort of doctrines lock, stock, and barrel from the First Amendment. But, you know, I mean, going back, you know, well over a hundred years to, like, Robertson, when the Court was just talking in dictum about the First and the Second Amendment, it drew the analogy between allowing some restrictions on the Second Amendment and, in the First Amendment context, the First Amendment being consistent with libel and defamation. As I suggested to the Chief Justice, I think the way you think about a nonpublic forum and why that's different from First Amendment purposes from a park, I think, could be useful in some of these contexts. You know, if you focus on the nature of the location, you might say this is inappropriate for weapons. But, in the same way as in the First Amendment, you just don't get to say, well, we're going to make it a nonpublic forum by saying no First Amendment activity there. You can't just take a location and say Official 1 we're going to make this a sensitive place by saying no Second Amendment activity there. So those kind of analogies, and, lastly, the analogy being you look at a law that says no concealed carry in a particular place on one night of the year quite differently from a law like this that says there's really no way for a typical New Yorker to conceal carry anywhere that the general public is allowed to go. Those -- under the First Amendment, those are radically different laws, and I think, under the Second Amendment, those are radically different laws.

Justice Barrett: Thank you.

Chief Justice Roberts: Thank you, counsel. General Underwood. ORAL ARGUMENT OF BARBARA D. UNDERWOOD ON BEHALF OF THE RESPONDENTS

Barbara D. Underwood: Mr. Chief Justice, and may it please the Court: For centuries, English and American law have imposed limits on carrying firearms in public in the interest of public safety. The Official 1 history runs from the 14th Century statute of Northampton, which prohibited carrying arms in fairs and markets and other public gathering places, to similar laws adopted by half of the American colonies and states in the founding period, to later state laws that relaxed restrictions for people who had a concrete need for armed self-defense. Starting as early as the early 1800s, states began taking different approaches to regulating firearm-carrying in public. Some states provided that a person who carried firearms in public without reasonable cause could be arrested and required to post a bond. Other states made it a misdemeanor to carry a handgun without reasonable grounds to fear an attack. Other states and territories began -- banned carrying handguns in towns and cities altogether or restricted it to situations of immediate threat. And in the early 1900s, many states made good cause a requirement for a license to carry a concealed handgun while also prohibiting in some cases the open carrying of handguns. Official 1 In total, from the founding era through the 20th Century, at least 20 states have at one time or another either prohibited all carrying of handguns in populous areas or limited it to those with good cause. New York's law fits well within that tradition of regulating public carry. It makes a carry license available to any person not disqualified who has a non-speculative reason to carry a handgun for self-defense. New York is not an outlier in the extent to which the state restricts the ability to carry firearms in public, and it's not an outlier in asking a licensed applicant to show good cause for a carry license. Many ordinary people have received carry licenses in New York State. If the Court has questions about how the law works in practice, it should remand for fact-finding, and if the Court finds the history ambiguous, it should review the law under intermediate scrutiny and uphold it.

Justice Thomas: General Underwood, you seem to rely a bit on the density of the population. You say, I think, that states like Official 1 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?

Barbara D. 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. Official

Barbara D. 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: Thank you.

Chief Justice Roberts: General, you -- you mentioned that the -- the gun is -- I -- I guess permits are read -- more readily available in a less populated area.

Barbara D. Underwood: Unrestricted permits --

Chief Justice Roberts: Unrestricted permits.

Barbara D. Underwood: -- are -- are more readily available in less populated areas, yes.

Chief Justice Roberts: Now Heller Official 1 relied on the right to defense as a basis for its reading of the -- of the Second Amendment, or that was its reading. Now I would think that arises in more populated areas. If you're out in the woods, presumably, it's pretty unlikely that you're going to run into someone who's going to rob you on the street. On the other hand, there are places in a -- in a densely populated city where it's more likely that that's where you're going to need a gun for self-defense and, you know, however many policemen are assigned, that, you know, there are high-crime areas. And it seems to me that what you're saying is that's probably the last place that someone's going to get a permit to carry a gun. How is that -- regardless of what we think of the policy of that, how is that consistent with Heller's reasoning that the reason the Second Amendment applies a -- a direct personal right is for self-defense?

Barbara D. Underwood: Well, I'll say a couple of things about that. One, we -- if you go right to history and tradition, the history was to regulate most Official 1 strenuously in densely populated places. That's what fairs and markets are. So we have history. But we also have a rationale for that history, which is that where there is dense population, there is also the deterrent of lots of people and there is the availability of law enforcement. In -- in England, the idea was that it was the King's Peace and it was, in fact, an insult to the king for people to take things into their own hands and --

Chief Justice Roberts: Well, but that's not always true. It depends, obviously, in the jurisdiction and all that, but simply because a place is -- well, it's paradoxical that you say a place is a high-crime area, but don't worry about it because there are a lot of police around.

Barbara D. Underwood: Well, and the other thing is that this is -- that these regulations are all an effort to accommodate the right, to -- to recognize and -- and respect the right of self-defense while regulating it to protect the public safety. And in areas where people are packed densely together, as the questioning that just happened displays, the risks of harm from Official 1 people who are packed shoulder to shoulder, all having guns, are much more acute than they are at --

Chief Justice Roberts: Oh, sure, and I can understand, for example, a regulation that says you can't carry a gun into, you know, Giants Stadium, just because a lot of things are going on there and it may not be safe to have -- for people to have guns. On the other hand, if the purpose of the Second Amendment is to allow people to protect themselves, that's implicated when you're in a high-crime area. It's not implicated when you're out in the woods.

Barbara D. Underwood: Well, I -- I think it is implicated when you're out in the woods. It's just a different set of problems. I mean, you're --

Chief Justice Roberts: Yeah, deer.

Barbara D. Underwood: -- you're deserted there and you can't -- and law enforcement is not available to come to your aid if something does happen. But --

Chief Justice Roberts: Well, how many muggings take place in the forest? Official 1 (Laughter.)

Barbara D. Underwood: If we -- if we --

Chief Justice Roberts: How many do you think?

Barbara D. Underwood: I don't know, but I will tell you that our licensing officer told us that rapes and -- and robberies happen on the deserted bike paths and that he has some concern about that. So, I mean, 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 the licensing officer is meant to take into account not just the risk but also the -- the population and the availability of law enforcement and all these considerations. I -- I won't say that the risk -- I think it's not correct to characterize the risk as atypical. The risk has to be specific to the person, that what -- what the cases say is that you can't just say I'm afraid because -- based on facts that are not specific to you. But what Mr. Nash did was convince the licensing officer that his trip to a deserted parking lot every night was sufficient to -- Official

Chief Justice Roberts: What if it's -- what if it's one of these, you know, crime waves, whether it's, you know, a celebrated spate of murders carried out by a particular person -- I don't know who that is -- you know, the Son of Sam or somebody else? Is that a good reason to -- is that -- is that a atypical reason? Is that a justification? Some random person is going around shooting people. I'd like to have a firearm even though I didn't feel the need for one before?

Barbara D. Underwood: Well, I think that it would have to be brought home to you in particular, to your route, to your parking lot, to your -- you know, your apartment building, but something specific to you rather than it's happening in the world at large. So --

Justice Kavanaugh: I don't --

Barbara D. Underwood: -- that's -- that's what meant by something non-speculative.

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 Official 1 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 am 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?

Barbara D. Underwood: That is in general right, yes. If there's nothing particular to them, that's right.

Justice Alito: How is that consistent with the core right to self-defense, which is protected by the Second Amendment?

Barbara D. Underwood: Because the core right Official 1 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?

Barbara D. 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?

Barbara D. Underwood: I don't know that there are a lot of armed people. Official

Justice Alito: No?

Barbara D. Underwood: I think there are people --

Justice Alito: How many -- how many --

Barbara D. Underwood: -- there are people with illegal guns if that's what you're --

Justice Alito: Yeah, that's what I'm talking about.

Barbara D. 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?

Barbara D. 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 --

Barbara D. 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, Official 1 no, they can't be armed?

Barbara D. Underwood: Well, I think the subways, when there are problems on the subways, are protected by the -- 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, 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?

Barbara D. Underwood: Well, what happens in these license hearings is that a question is asked: What -- what exactly do you mean? Because it -- it's -- Official

Justice Kavanaugh: Well, the statistics.

Barbara D. Underwood: Well, 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.

Justice Kavanaugh: How --

Barbara D. Underwood: Now this gets to your -- to questions about discretion and whether that's effectively handled. But -- Official

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?

Barbara D. Underwood: Well, probably. I mean, that's -- that's the --

Justice Kavanaugh: And I walk --

Barbara D. Underwood: -- counterpart to Nash's -- Nash's claim, but --

Justice Kavanaugh: Probably, though --

Barbara D. Underwood: -- if that's the question --

Justice Kavanaugh: Yeah.

Barbara D. Underwood: -- 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 Official 1 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 exist in many other states, including very populous states, you know, Florida, Illinois?

Barbara D. 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 -- with -- 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 --

Barbara D. 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 Official 1 that have shall issue regimes, actually, there is a lot more accidents, crime. And I don't see any real evidence of that.

Barbara D. 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 a hundred 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 -- 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 -- 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 Official 1 areas of New York versus the cities, I mean, it seems completely intuitive that there should be different gun regimes 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're 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?

Barbara D. Underwood: Well, I think one point is that there is a very wide range of sort of distribution of rural and urban, different kinds of areas, not just across the whole state but within counties. Official 1 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.

Barbara D. Underwood: Oh, I'm sorry. Official

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?

Barbara D. 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 Official 1 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 in, 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.

Barbara D. Underwood: Including Rensselaer County, yes.

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 in upstate New York?

Barbara D. Underwood: Well, hunting permits work for particular locations, for particular areas, and -- but it's all one statewide regime, I mean, and so too here licenses are handled Official 1 locally. It's not exactly the same, but it's the same model that licensing 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 to the question.

Chief Justice Roberts: Justice Breyer?

Justice Breyer: Are we considering here just the upper state New York law? We're not considering New York City, are we?

Barbara D. Underwood: I don't see any reason to be considering New York City.

Justice Breyer: Okay. So it's not in the case?

Barbara D. Underwood: The Petitioners are not from --

Justice Breyer: They're -- they're not, okay. All right.

Barbara D. Underwood: Yeah.

Justice Breyer: Now, if you're trying to get uniformity, doesn't the First Amendment -- isn't it filled with -- local statutes use the word "may," parade permits, event permits. Official

Barbara D. Underwood: Yes.

Justice Breyer: So it's not special?

Barbara D. Underwood: Correct. In a -- in a --

Justice Breyer: Can -- can you think of --

Barbara D. Underwood: -- in -- in the areas where permitting happens, which includes First Amendment areas --

Justice Breyer: Yeah.

Barbara D. Underwood: -- it could be parades, it could be solicitation for charity, there are various areas where First Amendment activity is --

Justice Breyer: All right. So -- so my -- my -- what I'm driving towards -- and I -- and I thought also there is a brief here -- I think it's the social scientists, I don't remember the name of it -- which says in instances where -- and they do it statistically -- they are more liberal in allowing people to carry concealed weapons who are good character people and there is a greater risk of -- of crime or harm, where that happens, there are more deaths of innocent people. Official 1 What is that brief? I'd like to go back and look at the figures.

Barbara D. Underwood: Yeah, I believe it is --

Justice Breyer: Do you know?

Barbara D. Underwood: -- a brief of social scientists, but --

Justice Breyer: All right. I'll find it.

Barbara D. Underwood: Yeah.

Justice Breyer: But do you think it's useful to -- were we to have a trial, could we go into that? I mean, I think the -- the great problem would be, fine, let's have some absolute rules, rules, uniform national rules. I'm not sure we have those in the First Amendment, but assume we do. What are they? What are those rules?

Barbara D. Underwood: Well, I think they would end up being factors that have to be taken into account because the range of situations is so different both on the -- on the need side, on the -- on the -- and on the -- on the -- on the counter- -- on the public safety side. So I think it's very hard. In fact, Official 1 that's one of the things that I think is hard about the suggestion that a sensitive place regime could replace a system like this.

Justice Breyer: All right. If you had to guess on how many carry -- conceal carry licenses are given in the area under consideration, upstate New York or outside of New York City, in a given year or around -- any way you want to put it, are they in the tens of thousands?

Barbara D. Underwood: Well, in --

Justice Breyer: Are they in the five --

Barbara D. Underwood: So I -- I can't do it statewide -- I have statewide estimates --

Justice Breyer: Yeah. Uh-huh.

Barbara D. Underwood: -- not estimates, I have permits I -- I -- for Rensselaer County and for statewide. It would be possible to get more, but we don't -- I don't have that.

Justice Breyer: Are they -- are they rough? What are they?

Barbara D. Underwood: So -- so -- and this is in Footnote 10 of our brief. In the two-year period, 2018 to 2019, in -- in the state, there Official 1 were approximately 37,800 grants of --

Justice Breyer: Okay. I get the idea -- rough idea. And if, in fact, it were remanded, I guess we could go into that in more depth?

Barbara D. Underwood: That's correct. That's correct. We have the grants. Of course, there are licenses that weren't granted in those years that are still valid. So that doesn't tell you how many -- how many licenses there are out there altogether. The thing we had to estimate was the grant rate because we don't have application data. We had to -- we had to estimate that from other information. But we have the permits.

Chief Justice Roberts: Justice Alito?

Justice Alito: Is it correct that the non-speculative standard applies throughout the state?

Barbara D. Underwood: It --

Justice Alito: It applies equally in New York City and in the most rural location in upstate New York?

Barbara D. Underwood: Well, it has been -- the law has been interpreted to mean that, Official 1 although the experience of granting licenses, the experience with license applications is that it is apparently more readily satisfied upstate.

Justice Alito: So the -- the individual officers have a degree of discretion?

Barbara D. Underwood: Well, yes, they are asked -- like -- like judges on many issues, they are asked to take into account certain factors. They can be reversed if they took the wrong factors into account or if they failed to take the specified factors into account. It's not unguided discretion, but it is discretion --

Justice Alito: What --

Barbara D. Underwood: -- in the sense that --

Justice Alito: -- what -- what guarantees, if any, are there in your regime that a licensing officer is not taking into account improper factors?

Barbara D. Underwood: I mean, this is a question about the judicial system generally. If he correctly records the factors that he took into account, they -- they write letters or opinions which may or may not fully disclose -- Official 1 one assumes will disclose what they thought was important. When there's a -- there's a -- often there are not just the papers, but there are the -- if -- if he denies a license, he will say why. He has to say why.

Justice Alito: We've been presented in your brief and all the other briefs in this case with an enormous amount of history, citations to all sorts of statutes and other sources. Would you be willing to concede that maybe you got a little bit overly enthusiastic in your summary of some of the historical sources that you cited in your brief? I'm going to give you an --

Barbara D. Underwood: We did our best to be accurate --

Justice Alito: -- I'm going to give you -- well, I'm going to give you an --

Barbara D. Underwood: -- in reporting what we reported. I don't know what you have in mind.

Justice Alito: Yeah. Well, I'm going to give you an example, which is -- you know, it's troubling. I can see how it would slip Official 1 through. I'm not accusing you personally of anything. But, on page 23, you say that in founding-era America, legal reference guides advised local officials to "arrest all such persons as in your sight shall ride or go armed." And this is a citation to John Haywood, A Manual of the Laws of North Carolina, 1814. So I looked at this manual, and what it actually says is "you shall arrest all such persons as in your sight shall ride or go armed offensively." And somehow that word "offensively" got dropped --

Barbara D. Underwood: Well, our --

Justice Alito: -- from your brief.

Barbara D. Underwood: I will --

Justice Alito: Do you think that's an irrelevant word?

Barbara D. Underwood: I think it would have been better to put it in and make an explanation, but I do think it's an irrelevant word because we have substantial authority for the proposition that guns were deemed to be offensive weapons. And that's why we have this dispute Official 1 about whether saying -- I mean, there are different ways of putting it, offensively or with offensive weapons or to the terror of the people. These either describe a separate characterization -- a -- a separate feature that not all weapons have -- that's my friend's position on this -- or they describe the belief that all such weapons are offensive.

Justice Alito: Well, I don't want to belabor the point, but, of course, if any possession of weapons outside the home was illegal, then there would be no need to put in the term "offensively," the inclusion of that term.

Barbara D. Underwood: Well, there are many other weapon -- usually the -- there's a list that's -- it's not in this particular instruction, but there would be a list of weapons. They were talking about much more than guns, and it was guns that were said over and over again to be offensive --

Justice Alito: All right. Well, thank you.

Barbara D. Underwood: -- weapons.

Justice Alito: Thank you. Official

Barbara D. Underwood: But that's the explanation. I'm --

Chief Justice Roberts: Justice Sotomayor? Justice Kagan?

Justice Kagan: You -- you started a thought and then you were taken off someplace else, so I just wanted to allow you to finish the thought. You -- this -- what you said was that there was a reason why the sensitive -- a sensitive place regime cannot serve as a replacement, and then you were not given an opportunity to say why. So why?

Barbara D. Underwood: Well, essentially, because there are -- it -- it is -- it would be very hard in the first instance and I think also not very acceptable in the second -- to -- to my adversaries, on the -- in 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, for example, we were talking about Times Square on New Year's Eve. Times Square on -- when the theater district -- when -- when -- when commerce is in full swing, Times Official 1 Square almost every night is shoulder-to-shoulder people. So then you -- you end up having a very big difficulty in specifying what all the places are that have the characteristics that should make them sensitive. It -- it's -- it has a -- in principle, it has an attractive quality to it, but, in implementation, I think it would be unsuccessful.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: No further questions. Thank you.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: No. Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: Yes, I have one. General Underwood, do you think Heller was rightly decided?

Barbara D. Underwood: I think there is a lot of support historically and otherwise for it, so I'm -- I'm quite content to treat it as rightly decided. I think there was an argument on the Official 1 other side too, but that's true about many of -- maybe most of the difficult questions that come before this Court. I have no quarrel with Heller.

Justice Barrett: Do you think that we are bound by the way that we characterized history in that opinion? You know, Mr. Clement has pointed out that in some respects the way that we treated, say, the Statute of Northampton is different from the way that you argue that we should interpret that and the follow-on, you know, statutes, and the colonies, you argue that we should understand those and some other cases differently than we did in Heller. Are we free to do that?

Barbara D. Underwood: I think you are because I think the Heller decision made very clear that it was not deciding anything other than the right to keep arms in the home. In the course of arriving at that decision, it necessarily said a lot of other things that led to that decision, but I don't think they are controlling or they -- I think the opinion itself says we're not trying to do a full exegesis of the whole Second Amendment Official 1 right, and there's more to be -- there's more to be done, and it would be odd and really inconsistent with general practice to treat every -- every sentence or every reference to a historical source as controlling for all time as distinguished from for the purposes for which it was invoked.

Justice Barrett: Thank you, General.

Chief Justice Roberts: Thank you, General. Mr. Fletcher. ORAL ARGUMENT OF BRIAN H. FLETCHER, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS

Brian H. Fletcher: Thank you, Mr. Chief Justice, and may it please the Court: New York's proper cause requirement is consistent with the Second Amendment because it is firmly grounded in our nation's history and tradition of gun regulation. As Justice Alito said, there's a lot of history floating around this morning, and so I want to be clear that, when I say that, I am putting to the side all of the disputed bits about the Statute of Northampton, about the Official 1 surety laws, and I'm putting to the side laws that restricted concealed carry but do not restrict open carry, and I am focusing on laws that either prohibited or required a showing of good cause to carry a concealable weapon, like a pistol. Tennessee enacted one of those laws in 1821. Texas followed in 1871. New Mexico and Arkansas likewise enacted such laws in the years immediately after the ratification of the Fourteenth Amendment. And over the decades that followed, more than a dozen other states enacted other laws that were at least as restrictive as New York's. Like my friends from New York, I count about 20 laws in total that fit that description. Those laws remain in force in seven states today, and more than 80 million Americans live under their protection. They are, in short, both traditional and common regulations. I'd welcome the Court's questions or I'm happy to continue.

Justice Thomas: How do we determine which states we should look to? And these are -- and you -- you -- you focus a lot on western Official 1 states, but the west is different.

Brian H. Fletcher: I agree, Justice Thomas, and I think there might be reason to be skeptical about a tradition that's only reflected in one state. I think that's a problem for Mr. Clement in relying on some of the cases exclusively from the antebellum south. But the cases that we're relying on come from the south, like the Tennessee, Arkansas, and Texas law I described. West Virginia had a similar law, as did Alabama, New York, Massachusetts, California, Hawaii. The tradition that I am drawing on spans two centuries going back to the Tennessee law, spans 150 years when you broaden it out to many states, and spans all regions or virtually all regions of the country. So I think that's the sort of tradition that you can look to when defining a national tradition of gun regulation.

Chief Justice Roberts: I mean, what is the appropriate analysis? I mean, you sort of -- we -- we, I think, generally don't reinvent the wheel. I mean, the first thing I Official 1 would look to in answering this question is not the Statute of Northampton, it's Heller, and Heller has gone through all this stuff and, obviously, in a somewhat different context, although that's part of the debate, self-defense at home. You know, this is different. But I still think that you have to begin with -- with Heller and its recognition that the Second Amendment, you know, it -- it has its own limitations, but it is to be interpreted the same way you'd interpret other provisions of the Constitution. And I wonder what your best answer is to the point that Mr. Clement makes in his brief, which is that, for example, if you're asserting a claim to confront the witnesses against you under the Constitution, you don't have to say I've got a special reason, this is why I think it's important to my -- my defense. The Constitution gives you that right. And if someone's going to take it away from you, they have to justify it. You don't have to say when you're looking for a permit to speak on a street corner or whatever that, you know, your speech is particularly important. Official 1 So why do you have to show in this case, convince somebody, that you're entitled to exercise your Second Amendment right?

Brian H. Fletcher: So let me start with the general question and then get to that --

Chief Justice Roberts: Sure.

Brian H. Fletcher: -- specific point for Mr. Clement. As to the general question about Heller, we agree completely that the Court ought to apply the method from Heller, which we, like I think all the parties, take to be look to the text, history, and tradition of the Second Amendment right, and we're applying that now to a somewhat different issue with the benefit of somewhat broader materials. Now, as to the question about why you have to have a showing of need, I think the problem with Mr. Clement's formulation is that it assumes the conclusion. If you had a right, the Second Amendment conferred a right to carry around a weapon for possible self-defense just because an individual wants to have one available, then, obviously, you couldn't take away that right or Official 1 make it contingent upon a discretionary determination. But the whole question is whether the Second Amendment right to keep and bear arms confers that right to have a pistol with you for self-defense even absent a showing of demonstrated need.

Chief Justice Roberts: Well, I'm not sure that's right. I mean, you would -- regardless of what the right is, it would be surprising to have it depend upon a permit system. You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.

Brian H. Fletcher: So I -- I agree with that, but I think I heard even Mr. Clement in response to a question from Justice Kavanaugh say he doesn't have a quarrel with licensing regimes in general. And I think what that is one illustration of is that the Second Amendment has a distinct history and tradition and that the way to be faithful to the Second Amendment is to Official 1 be faithful to that history and tradition and not to draw analogies to other rights with -- with their own histories and traditions.

Chief Justice Roberts: Well, there's licensing and there's licensing. Maybe it's one thing to say we need to check, make sure you don't have a criminal record, make sure that -- all the --

Brian H. Fletcher: Right.

Chief Justice Roberts: -- all the other things you can check on, but not that we assume you don't have a right to exercise your -- your --

Brian H. Fletcher: So I guess --

Chief Justice Roberts: It's hard to say it without saying it, exercise your right under the Second Amendment, and you've got to show us that -- that you do.

Brian H. Fletcher: So we would ask that question by looking to the history and tradition of the Second Amendment. And in Tennessee, in 1821, you couldn't carry a pistol at all. In Texas, in 1871, you had to have a showing of need if you were going to carry a pistol. And that showing of need was actually Official 1 much less favorable than the New York regime. In Texas, in West Virginia, and in Alabama, in those laws that we cite, need to carry a firearm was a need that you had to show when you were prosecuted for violating the law. It was essentially a self-defense requirement. And you had to persuade a jury in a criminal trial that you had an immediate pressing need to be carrying the gun when you were carrying it. The laws, of which New York's is one but by no means the only example that began to become more prevalent in the 20th Century, said we're going to make that determination of need ex ante. We're going to require a showing of good cause.

Justice Kavanaugh: Can --

Brian H. Fletcher: New York has done that for a century. I'm sorry, Justice Kavanaugh.

Justice Kavanaugh: This might be a level of generality issue, but I think Mr. Clement responded to what -- some of what you're saying on history and tradition by saying you have to look at carry laws more generally. And there was open carry traditions in a lot of those states. Official 1 And so I think he followed up by saying so open carry is one option. Shall carry permit regimes for concealed carry, another option. But what you can't have is no open carry and simply a may issue discretionary regime that will, in practice, he says, limit the right. So can you respond to that?

Brian H. Fletcher: Yeah. I meant to be taking that into account in the history -- account of history that I'm giving you. So the Tennessee laws refer specifically to carry publicly or privately. Texas, the same story. If I were here defending a regime that just prohibited concealed carry and allowed open carry, I would have many, many, many more states. But I'm focused on just this type of law, and even there, our submission is there's a substantial history and tradition of that kind of regulation. It's not the sort of outlier that the Court confronted in Heller and McDonald. And if I -- I could speak to -- Mr. Clement has spoken some about the case law from the 19th Century and has suggested that laws Official 100 like these were struck down. And with all respect to my friend, that's not correct. The cases that he is relying on are primarily dicta. The two cases he has that actually struck down laws -- or, I'm sorry, the three cases that he has that actually struck down laws are the Nunn decision from Georgia, which struck down a law that was -- banned even the keeping of pistols. The Court did say in dicta that open carry was required, but that would -- that would -- the law was actually much more restrictive than that. The Andrews case that he relies on and that Heller relies on as well is actually more helpful to us because the Court upheld a prohibition on the carrying of belt or pocket pistols, and it prohibited a ban on revolvers only because the Court construed that ban to be so broad that it would prohibit even carrying it around your house. And in the very next sentence, the Court said: But, of course, the legislature, if it wanted to, could regulate the carrying of that firearm publicly. And then, when you turn to laws like Official 101 the ones that we have here, which include some sort of self-defense exception, either ex-ante or ex-post, the trend in the cases is in favor of -- of upholding their constitutionality. We've cited about six decisions from the 1800s and the early 1900s, including the Duke and English cases from Texas, the Isaiah case from Alabama, the Haley and Fife cases from Arkansas, and the Workman case from West Virginia, all of which upheld those laws. And Mr. Clement's answer to those decisions is that they rested on the erroneous understanding that the Second Amendment or its state equivalents protected only the right to use arms in the militia. But that is not what those cases say. They do not stop by saying that the defendants were not militiamen and so had no rights. The Texas cases in particular, in Duke and English, say that the law makes all necessary allowances for self-defense by including the type of -- of exception we described earlier. And so our submission is that that body of case law that New York law carries forward is part of our nation's history and Official 102 tradition of firearms regulation and that New York ought to be allowed to continue to make the choice that it has made. Now we understand, and there's force to Mr. Clement's argument, that other states have made other choices. Justice Alito made powerful points about how some individuals have a powerful claim to have a gun for self-defense. But the question before the Court is, of all of the different approaches to these difficult issues that states and other jurisdictions have taken over our nation's history, is this one that the Second Amendment takes off the table? And our submission is that when it's an option that New York has and other states have had for a century or more and that traces as far back as some of the laws that I've been discussing into our nation's history, that's an option that is consistent with our tradition of gun regulation and is an option that ought to be available to the states.

Chief Justice Roberts: Justice Thomas?

Justice Thomas: No.

Chief Justice Roberts: Justice Official 103 Breyer, any? Justice Alito?

Justice Alito: Is it correct that the Sullivan Law was an innovation when it was adopted?

Brian H. Fletcher: It was relatively new. I think the Sullivan Law was 1911. The licensing requirement at issue here was 1913. I think Massachusetts had done something similar in 1906. Hawaii did its as well in 1913. And we view those as lineal descendents and, in fact, improvements upon the sort of Texas laws which made you prove self-defense at the back end rather than giving you a chance to demonstrate it up front.

Justice Alito: There's a -- there's a debate about the -- the impetus for the enactment of the Sullivan Law, is there not? There's -- there are those who argue, and they cite -- they cite support for this interpretation -- that a major reason for the enactment of the Sullivan Law was the belief that certain disfavored groups, members of labor unions, Blacks and Italians, were carrying guns and they were dangerous people and they wanted Official 104 them disarmed.

Brian H. Fletcher: There have been those arguments made, and there's certainly evidence that those sentiments existed in New York at the time. I have not seen things that persuade me that those were the impetus for the Sullivan Law. And to the extent that that was a question, I think the fact that similar laws have been enacted and maintained not just in New York and not just at that moment in time but in a number of different states throughout the country throughout large swaths of our nation's history is -- is good reason to believe that this is not just prejudice, that this is a legitimate regulation.

Justice Alito: I think one more question about the major point that you've made this morning, which is that there are scattered statutes, local ordinances, judicial decisions from various points in the 19th Century extending into the 20th Century, the early 20th Century, with the Sullivan Law and the other laws that you mentioned that are inconsistent with Mr. Clement's argument. Official 105 But what does that show about the original understanding of the right that's protected by the Second Amendment? Would -- would we be receptive to arguments like that if we were interpreting, let's say, the First Amendment or the Confrontation Clause of the Sixth Amendment? Would we say, well, you know, you can find a lot of state laws and state court decisions from the late -- from the 19th Century, early 20th Century, that are inconsistent with a claim that is made based on the original meaning of -- of a provision of the Bill of Rights, and that shows that that's what that was understood to mean at the time?

Brian H. Fletcher: Well, Justice Alito, I think Heller was receptive to those types of arguments and conducted a review of history through the 20th Century and rightly so, I think. It's not unusual to look to the nation's tradition to understand the meaning of constitutional rights. I think that's especially appropriate here for a couple of reasons. One is that I think everyone agrees that the right codified in the Second Amendment Official 106 is a right that is subject to some reasonable regulations, and in deciding what regulations are reasonable, we think the fact that they've been prevalent throughout our history is a good sign that they are. We think that's especially so because of a point that this Court made in McDonald, which is that throughout the nation's history, this is a right that's been recognized and codified in state constitutions as well. It's not something that people were not aware of. And so the fact that this type of regulation coexisted for so long with that understanding, we think, is a particularly strong indication of its consistency.

Justice Alito: Well, Heller -- and -- and I will stop after this -- Heller cited decisions going into the 19th Century as confirmation of what it had already concluded based on text and history at or before the time of the adoption of the Second Amendment and said this is what it was understood to mean at the time and it's further evidence that this is what this right was understood to mean because it kept being reaffirmed by decisions that came Official 107 after. But I find it hard to understand how later decisions and statutes, particularly when you start to get into the late 19th Century and the early 20th Century, can be used as a substitute for evidence about what the right was understood to mean in 1791 or 1868 if you think that's the relevant date.

Brian H. Fletcher: So you're certainly right about the way that Heller looked to decisions to -- on its core holding of does the Second Amendment protect only a militia-focused right or an individual right. But, when Heller turned to the question presented here, which is what sorts of regulations are consistent with the right that it was recognizing, I think it's fairly read to extend the analysis into the 20th Century for the reason that Justice Kagan identified, that it validated as presumptively lawful felon-in-possession requirements, bans on the possession of firearms by the mentally ill that date to much later than the 19th Century.

Justice Alito: All right. Thank you.

Chief Justice Roberts: Justice Official 108 Sotomayor?

Justice Sotomayor: What do you do with Heller and its recognition of categories of exclusion? Mentally ill, felons, domestic violence, presumably, although it didn't mention it. Can any of those pass strict scrutiny on their face?

Brian H. Fletcher: I don't know. I -- I think what -- the lesson from Heller, though, is that you don't need to apply strict scrutiny or any other level of scrutiny because those are the types of regulations that are validated by our nation's history and tradition of gun regulations. And so we would take that lesson from Heller as exemplifying the proper mode of analysis and apply it here as well.

Justice Sotomayor: So what do you do with the -- the view of your -- Mr. Clement's view that the essence that Heller says is that you do have some sort of right outside of the home to guns for self-defense? So how do you finish what you think that right is or how do you describe it?

Brian H. Fletcher: So we don't quarrel at all with the notion that the Second Amendment Official 109 has something to say outside the home. Our submission is just that to understand how it applies outside the home, one has to look to the history and tradition of regulations. And what we've tried to argue in our brief and this morning is that there is a substantial history and tradition of the regulation of the public carrying of concealable weapons, including pistols, because of the dangers that they present and that regulations of that type, of which New York's is one, are consistent with the right recognized in the Second Amendment.

Justice Sotomayor: How about -- let's go to the extreme. There's no exception for good cause, there's no exception for long -- no exceptions whatsoever, no rifles for hunting, no -- nothing. Outside the home, you can't possess any kind of ammunition-driven weapon.

Brian H. Fletcher: Yeah.

Justice Sotomayor: Where would we be with that?

Brian H. Fletcher: I think that is an -- a type of regulation that fortunately no state has today and that I don't think there's any Official 110 historical precedent for. I don't think you could make this sort of argument --

Justice Sotomayor: So --

Brian H. Fletcher: -- for that sort of law.

Justice Sotomayor: -- so give me the limiting principle of what regulations and how far they can go that don't achieve that.

Brian H. Fletcher: Right. So I think, like Mr. Clement, it's -- it's going to be difficult for me to give you definitive answers because, in our view, this is an inquiry that has to be driven by history and tradition, and that requires a careful examination of history and tradition. But let me give you a couple of guideposts. I think there is a tradition of laws like the Tennessee law that I alluded to earlier and others that prohibit the carrying of concealable weapons without any exception for self-defense or -- or any good cause exception like the one that you have in the New York law. So we think, and -- and Judge Bybee for the en banc Ninth Circuit concluded after an exhaustive historical analysis, that those types Official 111 of regulations are consistent with the Second Amendment. But I acknowledge that that's a tougher historical case to make than the case that you can make with respect to laws like New York's that include self-defense exceptions.

Justice Sotomayor: Thank you.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: Mr. Fletcher, I -- I think I probably should have asked General Underwood this question, but I forgot, so here you are. And 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 that you can share, are there studies, is there information about how this actually affects how getting rid of -- of this regime in the way that Mr. Clement would want this Court to do, how it affects policing, how it affects the ability of police officers to keep the streets safe and -- and how it affects their own safety? Is there information about that? Is there -- are there studies? Official

Brian H. Fletcher: There are. I think the -- the best place I can point you to for studies are some of the amicus briefs, including the social scientists' brief that Justice Breyer discussed with my colleague, General Underwood. In terms of sort of the United States' perspective specifically, I don't have any sort of quantifiable statistics. What I can tell you is that we do share the concern behind the New York law, which is the concern that having more guns on the street does escalate -- does complicate and increase the danger inherent in citizen/law enforcement encounters. We do think that's a real concern and it's one of a number of real concerns that are reflected in the law that New York has.

Justice Kagan: I mean, do police officers stop people in the same way in -- notwithstanding what -- whether there are -- whether it's a -- a New York regime or -- or a more permissive regime?

Brian H. Fletcher: I -- you know, I apologize, I don't have studies on that. All that I can give you is my own sense that if I were a police officer, I would certainly think Official 113 prominently in my mind about what are the odds that the person that I'm stopping or approaching in the middle of the highway, you know, late at night is likely to be armed. And the licensing regime in the state is going to be an important factor in the risk that that's the situation.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Mr. Fletcher, in -- in your brief, you -- you suggest that the New York law passes both the history -- text and history approach and -- and intermediate scrutiny should we apply that. And I guess I'd like to pose the same question to you that I did to Mr. Clement, and that is, what is the appropriate test between those two or others? The lower courts seem very divided over how to approach Second Amendment questions. Some apply the text and history approach to the challenge before them. Others say, yes, text and history is appropriate, but we're not going to extend the Heller right until and unless the Court first does so through its own text and Official 114 history analysis. We're not going to do it ourselves. Others have applied intermediate scrutiny. Others have applied what might be described as a watered down version of immediate -- intermediate scrutiny. And some have suggested strict scrutiny or some modification of it should apply. I -- I -- I'd just be grateful for your thoughts.

Brian H. Fletcher: I appreciate the question, Justice Gorsuch, and I think our view is that courts ought to follow what we understand to be the lesson from Heller, which is that you start with text, history, and tradition, and when those sources provide you an answer one way or the other, either that the law is valid or that it's invalid, you end there and that's the end of the inquiry. We take that approach to be consistent with the approach described by Justice Kavanaugh in his dissent in Heller II. I think the one place where we might differ from him a little bit is that we think there may come a point, especially as -- when courts confront new regulations, where history gives out, where it's Official 115 not possible to draw those historical analogies anymore. And at that point, our suggestion is that the way to be faithful to history and tradition is to look to the broader method that you find in that history and tradition. And the method that we find in a half dozen or so cases from the mid-1800s that we cite is to ask whether the law is a reasonable regulation. And as we explained in our brief, we think that the modern judicial method that is most faithful to that approach is a form of intermediate scrutiny.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Kavanaugh.

Justice Kavanaugh: Thank you. Mr. Fletcher, appreciate your focus on history and tradition and want to explore that and get your thoughts on one thing. As you say, there is a history and tradition, and it exists to the present day, of permitting regimes, and so the issue before us will have effects, but it's a narrow legal issue of "shall issue" versus "may issue." And it'll have substantial Official 116 effects, but there is a tradition of permitting regimes. But how do we think about, do you think, kind of 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 that too much discretion can lead to all sorts of problems, as our history shows? So you've got the tradition of permitting, but how -- how do we think about, fold in, just a general concern about too much discretion?

Brian H. Fletcher: So I -- I appreciate that concern, and I think here's how I would think about it. First, I would say you -- there is a substantial history of discretion in this particular area, starting out with juries in the Texas and West Virginia type regimes that I talked about now moving into permitting officers. And I think that's inherent in any system if you say a permit is going to be conditioned upon a showing that you have a Official 117 genuine, specific need for self-defense, then someone's got to make the decision about whether or not you've made that showing. New York has decided it's best to do that by delegating the authority to local officers, local judges, who are most familiar with local conditions. I do appreciate the concern about discretion, and I think, if the Court were to conclude that some sort of good cause sort of self-defense-based exception is -- is required, then the Court might conclude that some more predictable or stringent or prescriptive guidelines are required, that you can't have that much discretion if the Court concludes that that sort of good cause exception is actually constitutionally required.

Justice Kavanaugh: Thank you. Appreciate it.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: No.

Chief Justice Roberts: Thank you, counsel. Rebuttal, Mr. Clement? Official 118 REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS

Paul D. Clement: Thank you, Mr. Chief Justice. Just a few quick points in rebuttal. First of all, I want to highlight that when the government was asked for its interest behind this permitting regime, it said that if it went to a different regime, it would multiply the number of firearms in circulation. In a country with the Second Amendment as a fundamental right, simply having more firearms cannot be a problem and can't be a government interest just to put a cap on the -- the number of firearms. And that just underscores how completely non-tailored this law is. It might be well tailored to keeping the number of handguns down, but it's not well tailored to identifying people who pose a particular risk or anything else because it deprives a typical New Yorker of their right to carry for self-defense. The second point I want to make is just about population density. There's been a lot of discussion about that, but it's very much a double-edged sword because, when there's Official 119 population density, that's an awful lot of people who all have Second Amendment rights, and so you can't just simply say we're not going to have Second Amendment rights in the areas where there's dense population. And I would say, here, experience does tell you a lot. By my count, seven of the 10 largest cities in America, measured by population, are in shall issue jurisdictions. And I've mentioned them, cities like Phoenix, Chicago, Houston. These are large cities where it hasn't been a problem. If you want to look at the empirical evidence -- and I know, Justice Breyer, you asked about this -- please also look at the English brief on the top side because it's a very rigorous statistical analysis that shows that, as a matter of actually doing statistics right, there's no difference here, and what -- the only difference you really see is that people who have a handgun for self-defense end up with a better outcome. They're not shot. They're -- they're not made victims. But the English brief, I think, is really worth taking a look at. Official 120 I want to say a quick word just about permitting. There may be limiting permitting in other contexts, like parade permitting, but I'm not aware of any context whatsoever where, in order to get a permit, you have to show that you have a particularly good need to exercise your constitutional right. And I think that is the absolute central defect with New York's regime here. I want to say a quick word about the history that my friend from the Solicitor General's Office emphasized. It's telling that his first example is Tennessee. If you look at the Heller decision, Tennessee is a problematic state in terms of its history. The court gave -- that Tennessee Supreme Court first came out with the Aymette decision, which the majority opinion in Heller criticized. It then came out with the Simpson decision and the Andrews decision, both of which protected Second Amendment rights, and the majority opinion in Heller praised those decisions at the same time that it criticized Aymette. So, to the extent there was an 1821 statute, I would put it in the same box as the Aymette decision. Official 121 Texas, which is their next example and their only other 19th Century example if I heard my friend correctly, is even more problematic to rely on because Texas had a specific constitutional amendment that was similar to the English Bill of Rights but differed from the Second Amendment, that allowed the legislature to put specific restrictions on the right. So relying on 1871 Texas is highly problematic from a historical perspective. And that just leaves them with 20th Century examples, which we concede, but, by that point, the collective rights view of the Second Amendment was everywhere. Let me finish just by saying there's absolutely no need for a remand here. There are interesting statistics that could be developed, but none of them are relevant to the two central defects in this regime. First, that 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. Official 122 It does not describe a constitutional right. That is a sufficient basis to invalidate the law. But then there's the discretion, and the discretion here has real-world costs. If you want to look at it, look at the amicus brief in our support by the Bronx Public Defenders and other public defenders. The cost of this kind of discretion is that people are charged with violent crimes even though they have no private -- no prior record just because they are trying to exercise their constitutional right to self-defense. And if you want to know how this impacts policing, one of the ways essentially making everybody in New York City a presumptive person who is unlawfully carrying is that leads to stopping and frisking everybody. The framers, I think, had a different vision of the Fourth Amendment and the Second Amendment, and that is that individuals get to make their decision about whether or not they want to carry a firearm outside the home for self-defense. In 43 states, people are able to do Official 123 that. It has not -- it doesn't mean everybody ends up carrying, and it doesn't mean that those 43 states have any more problems with violent crimes or anything else than the six or seven jurisdictions that don't honor the text, the history of the Second Amendment, and Heller. Thank you, Your Honors.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:58 a.m., the case was submitted.)