Law & Courts

Why Schools Have a Stake in U.S. Supreme Court Case That May Expand Gun Rights

By Mark Walsh — November 03, 2021 7 min read
Parkland survivor and activist David Hogg speaks during a rally outside of the U.S. Supreme Court in Washington, Wednesday, Nov. 3, 2021. The Supreme Court is set to hear arguments in a gun rights case that centers on New York's restrictive gun permit law and whether limits the state has placed on carrying a gun in public violate the Second Amendment.
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Schools would stay classified as “sensitive places” where concealed guns aren’t allowed for self-defense under an expanded interpretation of the Second Amendment laid out for the U.S. Supreme Court on Wednesday.

“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,” Paul D. Clement said during the arguments in a case involving New York state’s restrictive law regulating the concealed-carry of guns for self defense outside the home. “Not any member of the general public can come in there. They restrict access. With or without a gun, if you’re an adult that has no business to be in a school, you’re excluded.”

The court heard two hours of arguments in New York State Rifle & Pistol Association v. Bruen (No. 20-843), which many observers view as the most important Second Amendment case in more than a decade. The case has drawn intense interest from gun control groups that arose after mass school shootings in recent years.

In its landmark 2008 decision in District of Columbia v. Heller, the 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.”

The Supreme Court has had little else to say on the Second Amendment since then, other than a 2010 opinion that applied the Heller decision to state and local laws. In its 2019-20 term, the court took up a case about New York City’s regulation of the transport of licensed firearms, but ultimately decided that the case was moot.

Still, groups such as March for Our Lives, formed after the 2018 shootings at Marjory Stoneman Douglas High School in Parkland, Fla., and Everytown for Gun Safety, which grew out of the 2012 attack at Sandy Hook Elementary School in Newtown, Conn., took the opportunity in that case to urge the court not to expand Second Amendment rights.

Those groups are back in the Bruen case, filing friend-of-the-court briefs in support of the restrictive New York state law.

“A ruling that effectively prohibits sensible firearm policies would silence the voices of millions of Americans—many of whom are young people coming of age in an era of school shootings and rampant urban gun violence—short-circuit the democratic process, and endanger the American public,” says the brief in the new case from March for Our Lives.

The gun control groups held a rally outside the Supreme Court before the arguments, where among the speakers were former Marjory Stoneman Douglas students David Hogg and Aalayah Eastmond as well as Fred Guttenberg, whose daughter, Jaime, was killed in the shooting there.

Meanwhile, several other briefs in the case press school-related points. A brief from the gun control group known as Brady points out that since the mass shooting at Columbine High School in Colorado in 1999, more than 250,000 students have been directly exposed to school gun violence, based on an analysis published this year by The Washington Post.

The American Bar Association, in its brief supporting New York, argued that the less-restrictive concealed-carry laws on the books in 43 states are associated with greater gun violence. And the ABA points to a study it conducted in relation to proposals to arm teachers.

“The evidence showed that the chances of an armed teacher ending an active shooter situation were ‘remote,’ while the chances of causing bystander injury or complicating police response were greater,” the ABA brief says.

The state cites history of gun regulation going back to the 14th century

The New York law before the justices requires “proper cause” to carry a concealed firearm for self-defense purposes and requires applicants to demonstrate a “special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” It is being challenged by two applicants from upstate New York who were denied concealed-carry permits for self-defense by their local licensing officials.

In Wednesday’s arguments, Barbara D. Underwood, the state solicitor general, argued that for centuries, English and American law has imposed limits on carrying firearms in public.

“The 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,” she said.

She did not address, and was not asked about, schools.

Clement, representing the two concealed-carry applicants as well as the New York affiliate of the National Rifle Association, said that “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.”

Clement argued that the 43 states that have less-restrictive concealed-carry laws, which dictate that officials “shall issue” such permits assuming certain qualifications are met, “have not had demonstrably worse problems” with gun violence than the other states and that many of those states are home to large cities. He pointed to a brief filed in support of New York by the city of Chicago, which is in a state, Illinois, that is among those with a less-restrictive law, as actually helping make his argument.

The brief (which was also signed by 11 other cities in other states) acknowledges Chicago’s recent trouble with gun violence, but argues that the city has a record of effective enforcement of firearms regulations. (The brief also discusses school gun violence in some detail.)

“And the city of Chicago goes on to … essentially brag about all of the ways that they’ve … reduce[d] crime in Chicago,” Clement said.

This prompted Justice Elena Kagan, who once taught at the University of Chicago, to interrupt.

“I mean, most people think that Chicago is, like, the world’s worst city with respect to gun violence, Mr. Clement,” she said. “And Chicago doesn’t think that, but everybody else thinks it about Chicago.”

“Nobody thinks that about Phoenix, and nobody thinks that about Houston, and nobody thinks that about Dallas,” Clement said, referring to cities in “shall issue” states, “and nobody thinks that about San Diego, which, even though it’s in a restricted state, is a shall issue jurisdiction.”

A debate, of sorts, about what constitutes a campus

The most relevant question for schools in this case is likely whether the court will do anything to further define “sensitive places” where guns may be prohibited even if the justices invalidate New York’s law, which a majority of them seem inclined to do.

The justices seemed to take it as a given that firearms could be barred from sensitive places such as courthouses and K-12 schools. The Biden administration, in a brief supporting New York, pointed out that federal law makes it a crime to possess a firearm in a school zone.

(An earlier version of the Gun-Free School Zones Act was struck down by the high court in 1995 as exceeding Congress’s powers under the Constitution’s commerce clause. But Congress fixed the measure by making it apply to guns that could be shown to have moved in interstate commerce.)

The gun-free schools provision and other federal laws barring firearms in government buildings and airplanes “impose only a modest burden on the right to bear arms, and they are part of a long tradition of restricting weapons in sensitive places,” the administration said its brief. (Deputy U.S. Solicitor General Brian H. Fletcher also argued Wednesday in support of New York’s law, though he did not address guns in schools.)

Justice Brett M. Kavanaugh suggested that the court need not delve in this case into further defining which settings qualified as sensitive.

“We don’t have to answer all the sensitive places questions in this case, some of which will be challenging no doubt,” he said.

But some of his colleagues were eager to ask those questions.

Chief Justice John G. Roberts Jr. said to Clement, “I’d like to get some sense about what you believe could be off limits, like university campuses. Could [states] say you’re not allowed to carry on a university campus?”

Clement said yes to such campuses, referring to the language in Heller about schools as sensitive places.

Roberts asked about establishments serving alcohol and football stadiums. Clement said bars would be “a tougher case for the government.” He suggested some general principles might come into play for certain venues such as stadiums, such as whether it was a place where general access was limited, or whether it was a place where all weapons were barred.

Kagan asked about New York University, “because that’s open for—you know, anybody can walk around the NYU campus.”

“Well, NYU doesn’t have much of a campus,” Clement replied, to laughter in the courtroom.

Kagan smiled, but also spoke up in defense of the urban university in her native borough of Manhattan.

“I would go back to New York,” she urged him, “and I think you’ll find that that’s wrong.”

A decision in the case is expected by next June.

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