Kramer Levin Files Amicus Brief in U.S. Supreme Court for the American Medical Association and Other Amici

Brief Supports New York’s Law Requiring Applicants for Permits for Concealed Carry of Handguns to Show “Proper Cause”

On Sept. 21, 2021, Kramer Levin filed an amicus brief in the U.S. Supreme Court for the American Medical Association, the Medical Society of the State of New York, the American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry asking the Court to reject a challenge brought by the New York affiliate of the National Rifle Association to New York’s law requiring applicants for a permit to carry a concealed firearm to show “proper cause” to do so.

The American Medical Association is the largest professional association of physicians, residents, and medical students in the United States, with more than 200,000 members. The case, New York State Rifle & Pistol Association v. Bruen, is the most important Second Amendment case since the Heller decision recognized a right to use a gun for self-defense in the home more than a decade ago. It will decide whether New York can continue to enforce its law requiring individuals who wish to carry a concealed handgun outside their homes to establish that they have “proper cause” to do so. New York enacted the law more than a century ago, following a plea by the State Coroner’s office to save “hundreds of lives” by restricting the carrying of handguns outside the home to those with a “legitimate purpose.” New York is one of eight states, with approximately 25% of the U.S. population, that have enacted such laws.

The brief urges the Supreme Court to uphold New York’s common-sense restriction on concealed carry licenses. It notes that more than 358,000 Americans have died from firearm-related injuries in just the last decade, including more than 14,000 children under the age of 18. It cites findings that eliminating “proper cause” laws like New York’s could result in a 15% increase in the rate of homicides by firearms – which would mean more than 3,700 deaths over the course of a decade in the 8 states with proper cause requirement. The amici explain that “the firearm violence that is plaguing America is a public health crisis that [their] members face very day. They witness the reality, the brutal effects on our bodies, the grief, the suffering, and the life-long physical, psychological, social and economic consequences that follow survivors who can never be made whole.” “[T]his is the rare case in which this Court’s decision will directly affect whether countless people, including babies and infants, will live or die. The stakes can hardly be higher.”

The brief provides the firsthand experiences of the grim realities of firearm violence of fourteen distinguished leaders of the medical community, including trauma surgeons, emergency physicians, child and adult psychiatrists, and rehabilitation specialists. The physicians include the former Director of the U.S. Department of Health and Human Services’ Emergency Care Coordination Center and current System Chair of Emergency Medicine at Mount Sinai Medical School in New York; the Associate Medical Director of Trauma at Bellevue Hospital Center in New York; the director of Trauma and Acute Care Surgery at the George Washington University Hospital in Washington, D.C.; the Chief of Emergency Medicine at NYU Langone Hospital—Brooklyn; the Director of Emergency General Surgery at Johns Hopkins Hospital in Baltimore; the Vice Chair and Medical Director of Emergency Medicine at Mount Sinai Downtown in New York; the Chief Medical Officer at MossRehab in Philadelphia; and the Director of the Firearm Injury Center at the Medical College of Wisconsin. They include physicians who have owned firearms, grown up around firearms, currently hold a concealed-carry permit, or were deployed overseas with the U.S. Armed Forces.

They explain that “far too many young people – disproportionately Black men and boys – die excruciating deaths as a result of inexplicable acts of firearm violence.” They describe the “catastrophic damage that a single bullet can wreak on the human body.” One doctor relates that a woman shot execution style in the head was wearing the same t-shirt as the doctor – “There but for the grace of God could have been any of us.”  Another, a trauma surgeon who volunteered for the army after 9/11 describes how he “teaches military expeditionary surgeons at Walter Reed Hospital based on his experience treating civilians shot on the streets of this country.” An emergency physician describes a healthy and active woman in her 90s who was minding her own business in her apartment when a stray bullet struck her in her lower back and exited her upper chest – she desperately wanted to live and kept asking the doctor to help her. He held her hand before she died a short time later. Her “last day was just a normal day for firearm violence.” They also describe how widespread access to firearms contributes to suicide. The physicians refute the suggestion that greater firearm availability will improve public safety. The truth is completely the opposite. They explain that concealed handguns are particularly lethal because shooters “have an opportunity to get far close to their victims and then to shoot more bullets into them before the victims can try to flee.” They describe the effects of the gun violence on children – “many grow up believing the world is a dark and frightening place where violence lurks around every corner. The effect on young developing minds cannot be overstated.” And they contradict the argument of the NRA’s New York affiliate that unrestricted concealed carry of guns should be allowed because seventeenth and eighteenth century England supposedly allowed it. One physician points out that his “ancestor, a colonial militiaman, was killed by British soldiers at the battle of Lexington and Concord in 1775. Back then, militiamen used simple flint-lock weapons. Today, easily available handguns can fire twenty rounds in a few seconds.” The brief argues it is absurd to say the mores of that era “show that the Founding Fathers intended to protect the unrestricted carry of today’s vastly different handguns that were not available hundreds of years ago and are capable of firing high velocity rounds in our most densely populated cities.”

Some of the physicians treated the victims of high-profile mass shootings, including a 2012 mass shooting at a Sikh temple in Wisconsin by a legal gun owner, and the 2018 shooting at the Tree of Life synagogue in Pittsburgh by a gunman who had a concealed carry license. Several physicians explain that it can be very difficult to predict who is predisposed to commit violence: individuals who lawfully obtain firearms can develop severe psychoses later in life or have their judgment compromised by alcohol or drug intoxication. Many mass-casualty attackers are “retaliating for perceived wrongs related to specific issues in their lives … such as an ongoing feud with neighbors, being kicked out of a retail establishment, being teased or bullied, facing an impending eviction, or being angered and frustrated about college debt and job prospects.” According to the amici, this highlights why state governments should be allowed to require concealed carry applicants to demonstrate good cause before they are issued a permit.

Underscoring that this is a uniquely American scourge, the amici point to data that shows that among high-income countries more than 90% of the women, 80% of the men and 96% of the infants under age five who are killed by guns are killed in this country.

Kramer Levin Litigation partner Michael J. Dell and associate Chase Henry Mechanick prepared the brief. Erin G. Sutton and Leonard A. Nelson of the Office of General Counsel of the AMA also worked on it. Read the brief here.