The Supreme Court will soon make a decision in a case over whether New Yorkers have the right to carry concealed handguns in public for self-defense, which could prompt the high court to examine other Second Amendment cases in the lower court pipeline, according to a high-profile lawyer representing plaintiffs in the Empire State.
Attorney Paul Clement was the lead advocate before the Supreme Court in November when justices heard New York State Rifle & Pistol Association, Inc. v. Bruen, a lawsuit surrounding two men who were denied a special need or “proper cause” for self-defense that is required under a long-standing New York law to receive an unrestricted license to carry a concealed pistol or revolver.
If the court sides with the plaintiffs, it is “quite possible” it could spur justices to tackle cases over restrictions on high-capacity magazines in California and New Jersey, Clement said Wednesday during a closed member briefing before the House Republican Future of American Freedoms Task Force and viewed by the Washington Examiner.
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“You know, it’s quite possible that if we win in the New York carry case, that a bunch of these cases that are being held by the Supreme Court … awaiting their decision [will be] sent back to the lower courts, but if the lower courts don’t get the message this time around, then I think that’ll be the next issue up for the Supreme Court,” Clement said.
On Tuesday, the National Rifle Association’s Institute for Legislative Action filed a petition to the Supreme Court challenging California’s ban on magazines capable of holding more than 10 rounds. The petition mirrors a similar case NRA-ILA challenged last year against New Jersey’s magazine statute in a case still pending before the Supreme Court.
As an advocate for the case against New York’s gun permit law, Clement expressed caution against making predictions about forthcoming court opinions, though he highlighted that there are essentially three cases the Supreme Court has decided pertaining to Second Amendment protections, while lower courts have “upheld gun control regulation after gun control regulation.”
“I do think that most of the [justices’] commentary suggested that the court was pretty tough on the New York law. I think that’s appropriate because the New York law … in many respects is the carry equivalent of the kind of law that the District of Columbia had with respect to the right to keep an arm inside the home,” Clement said in reference to the 2008 District of Columbia v. Heller decision.
Clement, who was also the 43rd solicitor general of the United States during former President George W. Bush’s second term, told the Washington Examiner that if the court does side with the plaintiffs, New York’s gun law would be invalidated.
“Whether the decision leaves an opening for New York to enact a revised ‘proper cause’ standard or some different law would depend on how the decision is written,” Clement said, adding that if the court rules against the New York law, “the burden will likely be on the state to pass a new law that the state believes is consistent with the court’s decision.”
Clement previously argued on behalf of the NRA in McDonald v. City of Chicago, one of more than 100 cases he has argued before the high court, including his most recent counsel in the New York State Rifle & Pistol Association case.
In September, President Joe Biden‘s administration urged the Supreme Court to uphold New York’s handgun restriction, with the Justice Department arguing that justices should defer the legislative practice of imposing limits on guns to protect public safety.
And while the 9th U.S. Circuit Court of Appeals reinstated California‘s ban on high-capacity magazines in November, Judge Patrick Bumatay dissented and expressed his full belief that California’s regulation does not work in congruence with the Second Amendment.
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“These magazines are lawfully owned by millions of people nationwide and come standard on the most popular firearms sold today,” Bumatay wrote in his dissent. “The Constitution protects the right of law-abiding citizens to keep and bear arms typically possessed for lawful purposes.”
A decision in the New York permit law case is expected sometime between now and the end of the present Supreme Court session, which ends in late June.
