In today’s 6–3 ruling in New York State Rifle & Pistol Association v. Bruen, the Supreme Court vindicated the Second Amendment by invalidating New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense. New York is one of only seven jurisdictions that had similarly onerous restrictions conditioning the issuance of a license to carry on a citizen’s showing of an additional special need.
Under New York’s licensing law, anyone wanting to carry a concealed handgun outside his or her home or place of business for self-defense must show, among other requirements, “proper cause.” To meet this high standard, applicants had to show something more than the mere desire to protect themselves or their property. Absent such a showing, only a “restricted” license for public carry may be issued, and that would confine permission to carry a firearm to a limited purpose like hunting or employment.
In New York, “need for self-protection” must be “distinguishable from that of the general community,” a standard interpreted by state courts so rigidly that they held it insufficient to apply to those who live or work in an area “noted for criminal activity” in the absence of evidence of “particular threats, attacks or other extraordinary danger to personal safety.”
In a scholarly opinion written by Justice Clarence Thomas, the Court applied its precedents in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), which recognized the Second Amendment as protecting an individual right for law-abiding citizens to possess a handgun at home for self-defense. Lower court decisions since those cases were decided adopted a “two-step” framework for Second Amendment challenges that looks not only to history, but also to a “means-end scrutiny” of gun laws. The latter notion in this context entails case-by-case examination of how worthwhile a particular law is, a standard so flimsy as to be difficult to distinguish from legislating. Quoting Heller, Thomas observed, “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”
The Court articulated as the applicable standard:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” [citation omitted]
This standard clearly follows from both Heller and McDonald. The point of a fundamental right is that one must able to exercise it, and New York’s discretionary licensing scheme was simply too demanding to meet constitutional muster. Indeed, the phrase “keep and bear arms” in the Second Amendment would be rendered practically meaningless if New York’s gun regulations had been allowed to stand because then the average citizen then could only keep a gun at home, not bear it elsewhere.
Likewise, Thomas noted that the right to bear arms in public for self-defense is not (quoting McDonald) “a second-class right” subject to a different standard from that governing “the other Bill of Rights guarantees.” Just as the Court would not require individuals to “demonstrat[e] to government officers some special need” before they can exercise their speech or free exercise rights under the First Amendment or the right to confront witnesses against them under the Sixth Amendment, the Second Amendment rights should not be subjected to a different analytical framework.
Justice Stephen Breyer’s dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan, argued in favor of a means-end standard, but it focused on policy arguments in favor of New York’s law, as if to admit to the weakness of its advocated level of scrutiny. The opinion cited a litany of statistics on gun violence and even noted the greater population density of the restrictive jurisdictions, as if that had any bearing on constitutional rights. If anything, the need for self-defense that Heller recognized to be at the core of the Second Amendment is greater for those who live or work in dangerous places and who find no solace under New York’s gun laws.
Justice Samuel Alito penned a concurring opinion that exposed the irrelevancy of much of Breyer’s exposition on gun policy to the issue before the Court and chided the dissent for a one-sided presentation of much of the data it presented. Justice Brett Kavanaugh’s concurrence reiterated language from Heller that was also quoted in McDonald: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Breyer professed a deference to elected officials—“the question of firearm regulation . . . should be solved by legislatures rather than courts”—that of course is situational and oblivious to constitutional text. As we have seen (and surely shall soon see again) in contexts such as abortion, where a right the liberal bloc favors is not in the Constitution, they will gladly steamroll legislatures. Yet they rail against judicial intervention when a right they disfavor is explicitly stated in constitutional text, as in the Second Amendment.
Breyer, who had dissented in Heller, made a feeble attempt to claim he was now deferring to that precedent as a matter of stare decisis, only to repeatedly add why he found that decision’s historical observations “questionable.” “Many experts now tell us that the Court got it wrong in a number of ways,” he noted in reference to liberal historians who supported his view, just three sentences after claiming that he was not trying to “relitigate Heller.” Sure he wasn’t.
Fortunately, today’s ruling commanded a strong majority. This is a reminder of how far we have come to have a majority on the Court who look primarily to the text, history, and tradition when analyzing constitutional questions rather than acting like legislators.