Second Amendment rights supporters in front of the Supreme Court, after the court struck down the D.C. handgun ban, June 26, 2008. Photo by Diego M. Radzinschi/ALM.

Thirteen years ago, the U.S. Supreme Court divided over the meaning of the right protected by the Second Amendment. On Wednesday, the justices appeared divided again, this time over how much discretion a state should have to regulate that constitutional right.

The history and tradition of gun regulation from early England to current days were read differently by lawyers challenging and supporting New York's law that requires persons to show "proper cause" for a license to carry a concealed firearm outside the home for self-defense.

"The question is how to use history," Justice Elena Kagan said. "Where do you look? How far do you look and with what sense of flexibility do you look? We're not going to ask for exact analogues because we realize the world has changed. If we try to copy history, we would find ourselves in a world where we tell people they can't carry concealed guns; they only carry it openly."

To Justice Stephen Breyer, "It is law office history." One historian in an amicus brief says one thing, he explained, another historian says another thing. "I don't know. I'm not sure how to deal with the history."

Besides competing versions of history, the justices also probed the boundaries of gun regulation, for example, in sensitive places, in rural versus urban areas, and in comparison with regulation of other constitutional rights, such as the First Amendment.

The court heard two hours of arguments in New York State Rifle & Pistol Association v. Bruen. Kirkland & Ellis partner Paul Clement argued on behalf of the association and two New York men denied unrestricted concealed carry licenses. New York Solicitor General Barbara Underwood represented the state and shared argument time with Principal Deputy U.S. Solicitor General Brian Fletcher.

Here are some key takeaways:

Discretion of Permitting Officials

Justice Brett Kavanaugh said the challengers' main problem with the New York law seemed to be the discretion afforded local officials who decide whether to issue the concealed carry permit, "and that's not how we do constitutional rights." Would they object to the "shall issue" regimes used in many of the other 42 states?

Clement answered, "We want what they have." He added the problem with the New York law is not just permitting officials' discretion but the law's requirement that an applicant show an atypical need for the permit distinguished from the general community.

But Underwood later told Kavanaugh, "The problem with 'shall' regimes is they multiply the number of firearms in very densely populated places. They greatly proliferate the likelihood mistakes will be made and fights will break out."

Kavanaugh rejoined, "I don't see any real evidence of that." Underwood replied, "This law has been in place for over a hundred years. I believe there is evidence about the success New York has had in keeping gun violence down attributable to the reduced number of guns."

Sensitive Places

Chief Justice John Roberts Jr. asked Clement from what places could guns be excluded. "Any place alcohol is served?" Roberts asked. Clement said the correct analysis would be to look case by case and to the 2008 Second Amendment decision in District of Columbia v. Heller, which referred to government buildings and schools. "Any place that served alcohol would be a tougher case for the government," Clement said.

Roberts added, "What about a football stadium?" Clement said to look for a historical analogue and whether the place operates like a government building or school and guns are out of place.

Kagan picked up that line of questioning, asking, "What about New York City subways?" Clement said to start with the analysis, but Kagan interrupted, saying, "I get the analysis. How does it cash out? What does it mean? Anyone can walk around the NYU campus or Columbia campus. You can't say, 'There are 50,00 people in one place, a ballpark, all on top of we each other and we don't want guns there?'" Clement answered, "I think they might."

Kagan continued, "Suppose the state says no guns at a protest or event with more than 10,000 people?" Clement said, "That might be trickier."