New York Treats a Second Amendment Right as a Crime

Before he was elected mayor of New York City last week, Eric Adams raised some eyebrows by saying he would carry a handgun to protect himself and any houses of worship he might visit. While those remarks were controversial, the real scandal is that ordinary New Yorkers cannot legally carry guns for self-defense — a privilege that Adams takes for granted as a former police officer.

That double standard came into focus last week, when the Supreme Court considered a constitutional challenge to New York’s carry permit law. Unlike the vast majority of states, which allow residents to carry guns in public if they meet a short list of objective criteria, New York gives local officials broad discretion to decide whether an applicant has “proper cause” to exercise a right guaranteed by the Second Amendment.

Former U.S. Solicitor General Paul Clement, speaking on behalf of the law’s opponents, emphasized that applicants cannot pass the state’s amorphous test by expressing a general desire to protect themselves against criminal assault. “In order to exercise a constitutional right that New York is willing to concede extends outside the home,” he noted, “you have to show that you have an atypical need to exercise the right that distinguishes you from the general community.”

That situation, Clement said, “describes a privilege” rather than “a constitutional right.”

Most of the justices seemed inclined to agree.

“The idea that you need a license to exercise the right” is “unusual in the context of the Bill of Rights,” Chief Justice John Roberts noted. Justice Brett Kavanaugh added that “too much discretion” in deciding who can exercise a constitutional right “can lead to all sorts of problems.”

Justice Samuel Alito suggested what that kind of discretion can mean for “ordinary law-abiding citizens who feel they need to carry a firearm for self-defense.” He noted that “people who work late at night in Manhattan,” such as doormen, office cleaners, dishwashers, nurses and orderlies, routinely get off work “around midnight” or later and might “have to walk some distance through a high-crime area” on their way home.

If such a person applied for a carry permit, Alito said, he or she would be out of luck in the absence of a specific threat along the lines of “I am going to mug you next Thursday.” It would not be enough to say “there have been a lot of muggings in this area, and I am scared to death.”

A brief from the Black Attorneys of Legal Aid and several other public defender groups goes beyond hypotheticals. It describes the case of Benjamin Prosser, who “had repeatedly been the victim of violent stranger assaults and robberies on the street.”

Prosser decided to carry a gun for self-defense when he took a job that required two hours of travel every day. After he was charged with a weapon offense that carried a mandatory minimum penalty of more than three years in prison, he pleaded guilty to a lesser offense that still marked him as a “violent felon.”

Another defendant, Sam Little, “survived a face slashing and lost multiple friends to gun violence.” He served eight months in jail after he was prosecuted for “carrying a gun to defend himself and his young son.”

Little was arrested after police stopped and frisked him. As Clement noted, New York’s virtual ban on carrying guns “leads to stopping and frisking everybody” because anyone caught with a firearm is presumptively guilty of breaking the law.

The New York Police Department dramatically scaled back its “stop, question, and frisk” program after years of complaints that it routinely harassed young Black and Latino men for no good reason. But Mayor-elect Adams, who never needs to worry that he will be arrested for carrying a gun, supports judicious use of the tactic, as long as police comply with constitutional constraints. That is not really possible when the state treats people as criminals for exercising their Second Amendment rights.

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Jacob Sullum is a senior editor at Reason magazine.