Law & Courts

School Groups Worry as Supreme Court Recognizes Right to Carry Handguns in Public

By Mark Walsh — June 23, 2022 6 min read
Members of the Supreme Court pose for a group photo at the court in 2021.
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In a decision raising deep concerns among educators and gun-control groups launched after mass school shootings, the U.S. Supreme Court on Thursday held that the Second Amendment encompasses a right to carry a handgun outside the home for self-defense.

The advocates worry that the decision could lead to an erosion of restrictions on guns in schools and other locations the court has termed “sensitive places.”

The court ruled 6-3 to strike down a New York state law that required an individual to have “proper cause” and a “special need” to be issued a concealed-carry license. New York is one of six states that have what are considered more-restrictive “may issue” regulations, while 43 states have “must issue” rules granting licenses to all those who meet certain threshold requirements.

“The constitutional right to bear arms in public for self-defense is not a second-class right,” Justice Clarence Thomas wrote for the majority in New York State Rifle & Pistol Association v. Bruen (No. 20-843). “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, some of whom wrote or joined separate concurrences.

Justice Stephen G. Breyer wrote the dissent, joined by Justices Sonia Sotomayor and Elena Kagan, that cites the recent mass shootings at a school in Uvalde, Texas, which left 19 young students and two teachers dead; and a supermarket in Buffalo, N.Y., where 10 people were killed.

“Unsurprisingly, the United States … suffers a disproportionately high rate of firearm-related deaths and injuries,” Breyer said, adding that “gun violence has now become the leading cause of death in children and adolescents, surpassing car crashes, which had previously been the leading cause of death in that age group for over 60 years.”

“The primary difference between the court’s view and mine is that I believe the [Second] Amendment allows states to take account of the serious problems posed by gun violence,” Breyer said.

Alito, in his concurrence, took on Breyer over his discussion of mass shootings.

“Why … does the dissent think it is relevant to recount the mass shootings that have occurred in recent years?” Alito said. “Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home?”

“And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo?” Alito continued. “The New York law at issue in this case obviously did not stop that perpetrator.”

Breyer did not hesitate to respond to his colleague.

“I am not simply saying that guns are bad,” Breyer said. “The question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts.”

Educator and gun control groups react

Yvin Shin, a judicial advocacy associate with March for Our Lives, the group that grew out the the 2018 mass shooting at a high school in Parkland, Fla., that killed 17 people, said, “Today, the Supreme Court released a decision that will kill young people.”

Shin, who was just 14 when the Parkland shooting occurred, said in a Zoom session with reporters that the court “has decided to elevate the Second Amendment at the expense of every other right we are promised. Our right to survive. Our right to leave our homes and come back to our loved ones. Our right to ever feel safe again when we go on the subway, to grocery stores, to marches, and to school.”

Eric Tirschwell, chief litigation counsel at Everytown Law, a gun-control advocacy group that in part grew out of the 2012 mass shooting at an elementary school in Newtown, Conn., said, “More people will be harmed by guns as a result of today’s decision.”

Becky Pringle, the president of the National Education Association, said in a statement, “As our nation continues to mourn the deaths of 19 children and two teachers at Robb Elementary School in Uvalde, Texas, and the hate-fueled massacre in Buffalo, N.Y., it is unconscionable and utterly disgraceful that a radicalized Supreme Court has decided, once again, to erode further what few common-sense gun safety measures we do have in place.”

For all the rhetoric and passionate reactions, the practical effects of the decision on the legal carrying of guns near schools may be limited.

Alito, in his concurrence, said, “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess.”

The court stops short of defining all the ‘sensitive places’ where guns may be prohibited

A key question as the court weighed the case was whether the ruling might further define “sensitive places” where gun possession may be regulated.

In its landmark 2008 decision in District of Columbia v. Heller, the Supreme Court said the Second Amendment protected an individual right to possess a firearm and to use that firearm for “traditionally lawful purposes,” such as self-defense in the home. Justice Antonin Scalia, writing for the majority, said that “nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Thomas, in the majority opinion in the New York case, said “we have no occasion to comprehensively define ‘sensitive places’ in this case.”

He said the historical record suggests there were only a few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited, such as legislative assemblies, polling places, and courthouses.

“Courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible,” Thomas said.

Thomas’s lone discussion of schools, other than noting the language from Heller about schools as sensitive places, was to cite an anecdote from the Reconstruction era in which the Freedmen’s Bureau reported that a Black teacher at a bureau school had acquired a gun because of attacks on the school. (Thomas has written before, as he does in his Bruen opinion, about efforts to thwart gun rights of the freed slaves.)

Kavanaugh, in a concurrence joined by Roberts, said that in his view the majority opinion will not bar states from imposing licensing requirements for concealed carry of handguns in public.

“Properly interpreted, the Second Amendment allows a variety of gun regulations,” Kavanaugh said.

He quoted with approval a lengthy passage from Alito’s majority opinion in a 2010 case, McDonald v. City of Chicago, which extended the Heller decision to the states and reiterated Heller’s discussion of schools and government buildings as sensitive places where guns could be regulated.

Jonathan Lowy, the chief counsel of Brady, another gun-control advocacy group, said he was unsatisfied with the majority’s discussion of “sensitive places.”

“I think the court did not come close to answering what is an acceptable sensitive place where guns can be off limits,” he said in a Zoom session. “So I think that remains an open question.”

Tirschwell, of Everytown Law, said when it came to schools, he felt reassured by Kavanaugh’s concurrence.

“I don’t think there is any concern on our end that somehow schools are back in play as a place where a state or local government can’t prohibit guns,” he said.

Shin, of March for Our Lives, said she was “incredibly worried” because “we have seen conservative legislatures and conservative elected officials take a mile when they are given an inch.”

She interpreted Thomas’s majority opinion as leaving the question of schools as sensitive places a bit vague.

“Considering the overwhelming amounts of violence schools have faced recently, the fear we personally face as the Lockdown Generation, and the fact that more guns in schools don’t do anything to address those two problems, it speaks to the fact that he is disregarding our current gun violence epidemic in favor of focusing on his version of cherry-picked history,” Shin said.

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