Why Schools Have a Stake in U.S. Supreme

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

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.

David Hogg, a survivor of the 2018 mass shooting at Marjory Stoneman Douglas
High School in Parkland, Fla., speaks during a rally outside of the U.S.
Supreme Court on Wednesday. The court heard arguments on a New York law that
limits the concealed carry of guns for self-defense.

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.

4 Social-Emotional Practices to Help Students Flourish Now (Opinion)

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.”