On a winter night in 1984, Bernhard Goetz brought his handgun on the New York City subway and shot four young unarmed black men he claimed were trying to rob him. The people he shot were never charged with attempted robbery, which they would have been had Goetz had any evidence of the crime. Goetz claimed he had bought the gun for self-defense after being attacked on the subway three years earlier. The story drew national attention. Some people hailed him as a hero, others damned him as a villain. Goetz was eventually charged with assault and attempted murder but was only convicted on one count of carrying an unlicensed firearm. He served eight months in prison and, as far as I know, is still out there somewhere in the world, armed and dangerous.
Goetz’s case did not come up at the Supreme Court yesterday, during oral arguments in New York State Rifle & Pistol Association v. Bruen. But as I listened to conservative lawyers and justices congratulate themselves on rewriting the Second Amendment into a grotesque invitation to commit murder and suicide, I felt Goetz in the room. I felt his irrational fears and racist beliefs being warped into a new imprimatur of constitutional validity. And I felt a new generation of Goetzes locking and loading.
The issue in front of the court was New York state’s licensing rules for a concealed weapon. Currently, the state requires people who want to take a gun outside of their home to show a “proper cause” for needing to carry a weapon in public. That’s been the law for over a hundred years. But conservatives (armed as they are with a supermajority on the Supreme Court) have decided to challenge that long-standing rule by arguing that the requirement to show cause violates the Second Amendment.
The notion that it violates the Second Amendment to require people to give a reason to carry a gun strikes me as ludicrous, particularly when that amendment states the reason to bear arms clear in its first clause (“A well regulated Militia, being necessary to the Security of a free State…”). But conservative justices made that bad argument sound even worse. Justice Samuel Alito argued that commuters need the freedom to carry loaded weapons on New York City subways to protect themselves from the criminals he believes are stalking every passenger on the 7 train. It sounded a lot like the white fear that drenched the Goetz case.
Alito and Chief Justice John Roberts might have thought they were being clever when they cited a need for self-defense in “high-crime areas,” but I knew whom they were talking about shooting. People who look like me, or my sons. “Law-abiding” New Yorkers should have the ability to shoot us on the subway if we scare them. Decades after a white man shot four unarmed Black men and got only eight months for carrying an unlicensed handgun, conservatives are trying to make the “unlicensed” violation a nonissue.
There doesn’t appear to be a way to stop conservatives from doing this, however. There’s no way to prevent them from unleashing trigger-happy vigilantes onto our streets and subways. That’s because, at core, NYS Rifle is about extending the warped logic of the 2008 case District of Columbia v. Heller to its bloody yet logical conclusion. In Heller, the Supreme Court for the first time recognized a “right” to bear arms purely for personal self-defense. Heller was limited to self-defense inside the home, but if one accepts its logic (which I do not), it’s difficult to argue that the new right to shoot things that go bump in the night can be limited to one’s private domain. And if one agrees that there’s a personal right to self-defense outside the home, well, this is how you get Rambo riding the subway.
Don’t get me wrong, New York Solicitor General Barbara Underwood did her best to push back on the conservative logic and defend New York’s current licensing regime. She argued that the need to show cause makes sense in a state as diverse as New York. In more rural areas of the state, she pointed out, conceal carry permits are often granted because the “cause” to defend yourself “in the woods” (as she put it) is high and you are unlikely to harm other innocent people. In the crowded city, however, permits are usually not granted, because the danger to others is simply too great.
But the conservative justices were having none of it. Roberts flipped her argument around and suggested that the need for a gun is actually greater in “high-crime areas.” Alito, as I said, painted a picture of New York subways as dens of scum and villainy. And Amy Coney Barrett went right for the heart of the issue when she made Underwood admit that Heller was rightly decided. Underwood had to say yes—her line was “I have no quarrel with Heller”—because you can’t go in front of the conservative majority and tell them your whole case rests on their admitting they were wrong. But from there, Barrett asked her to explain how the court could be bound by Heller but somehow not extend its logic to beyond the home, and there’s no great answer to that besides “because if you extend your violent decision, more people will die.” Underwood basically said that, but conservatives do not care.
Conservative argued that New York should change its laws to say the state “shall” issue conceal carry permits to any “ordinary” citizen (so, not ex-felons), instead of making them show “cause” to get one. It would take the discretion out of the system and basically mean that anybody can get a permit if they fill out a form. The conservative justices noted that many other states already do this, and that New York gives out hunting licenses on a “shall” issue basis.
That comparison really bothered the liberals, especially Stephen Breyer, who said that with hunting licenses, “rabbits have some problems,” but with conceal carry licenses, “people die.” But conservative super lawyer Paul Clement (who argued the case on behalf of the guns) waved this concern away and mentioned other cities that have “shall issue” conceal carry laws without things erupting into bloody violence. Amazingly, one of the cities Clement cited positively was… Chicago. This drew a laugh and a sharp critique from Elena Kagan, who noted what conservative usually say about crime in Chicago, but the conservatives refused to concede their own hypocrisy. Remember this the next time Fox News fearmongers about gun violence in the Windy City: Conservative lawyers and justices think its gun policies are a model for the nation.
I’ve always felt the court will rule against New York’s gun laws, 6-3, and nothing happened at oral arguments to change that likely outcome. But the hearing did suggest an opening for New York to keep itself from turning into Texas. Both Roberts and Barrett asked questions about gun regulations in “sensitive places” like schools, government buildings, and sports arenas. It’s certainly possible that these two will uphold state regulations prohibiting guns in these sensitive spots, even if they won’t uphold New York’s overall gun licensing scheme. Even Clement conceded that guns could still be prohibited in schools and “in Times Square, on New Year’s Eve” (although he had no answer for Underwood’s argument that Times Square looks like New Year’s Eve pretty much every night before the Broadway shows start).
The legislative work-around is therefore obvious. New York state should pass regulations specifically prohibiting firearms from a wide list of locations, including all forms of public transportation, large gatherings, and bars and restaurants. It’s not ideal, and it requires the New York State Legislature actually to get something done. But while Roberts and Barrett seem set to close a door, they may have opened a window.
At the very least, it’s incumbent upon New York state to try. Ammosexuals may argue that lethal phallic symbols are the only things that compensate for their feelings of fear, but I know who these people will be shooting at. It’ll be me. It’ll be my kids. I have the right to ride home from a Mets game without worrying that a hysterical white man is going to shoot me for breathing on him with my broad West Indian nose.
Look, I’m not naive. I’ve been a Black man in America all my life. I was only 6 years old when Goetz shot those Black people, but I don’t remember not knowing what he did, because my parents made sure I was aware of what white men are allowed to do to me in this country. The Supreme Court wants to make it even easier for them to do it, without so much as an illegal weapons charge, and there’s nothing I can do about that. But if New York can pass a bill to reinstate through a back door what minimal protections the Supreme Court is poised to take away, it has to do it.
Conservatives control the Supreme Court, and with that power they intend to keep us living in the most violent wealthy country on Earth. The few states Democrats control must rage, rage against the dying of the light.