Bench Memos

Law & the Courts

The Second Amendment Returns to Court

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Tomorrow, the Second Amendment returns to the Supreme Court with oral argument in New York State Rifle & Pistol Association v. Bruen. The case involves a challenge to New York’s Sullivan Law, which has been on the books for over a century, making it nearly impossible for most law-abiding citizens to exercise their right to bear arms. In order to carry a handgun, they must satisfy a city official with enormous discretion that they have a special need for the weapon, preventing the vast majority of people not having that narrowly defined need from carrying.

This marks the return of the Second Amendment to the high court after what has effectively been a long absence. In 2008 the Court decided in District of Columbia v. Heller that the amendment protects an individual right to possess a firearm and use it for lawful, historically established purposes, such as self-defense at home. Two years later, in McDonald v. Chicago, the Court held that the Second Amendment applies to the states. Since then, however, the Court has repeatedly declined to further clarify the right, in many cases denying certiorari over dissents by Justice Thomas. In one such dissent in 2018, Thomas went as far as to call the Second Amendment “a disfavored right in this Court.”

The next term, the Court took such a case, New York State Rifle & Pistol Association Inc. v. City of New York, which involved a challenge to a New York City firearm transportation ban. But the Court ultimately decided — over the dissent of Justices Thomas, Alito, and Gorsuch — that the case was moot after the city amended the law following the filing of the case. Although he agreed with the majority on mootness, Justice Kavanaugh gave hope to constitutionalists as to his future vote in Second Amendment cases when he expressed his “concern that some federal and state courts may not be properly applying Heller and McDonald.”

One more originalist justice later, here we are with Bruen about to shed new light on this underdeveloped provision of the Constitution. The Second Amendment protects “the right of the people to keep and bear Arms.” Besides establishing the individual nature of the right involved, Heller demonstrated that the word “keep” is not empty verbiage. This case will determine whether the word “bear” retains meaning in our time. As the petitioners’ brief makes clear, the right to bear arms for self-defense not only had meaning in early America. It “was substantially more obvious on this side of the Atlantic” than in Great Britain, from which the right was derived. In some jurisdictions the carrying of firearms was even required. Plenty of additional supporting history is to be found among the dozens of amicus briefs filed in this case.

That there is a constitutional right to carry firearms outside the home for self-defense was recognized long after independence, including, notably, during Reconstruction, when several federal statutes were passed that, among other things, protected former slaves from the deprivation of that right.

Fast forward to the early 20th century, and New York passed the Sullivan Law amid a wave of discriminatory laws designed to keep arms away from immigrants. By leaving broad discretion in the hands of local officials, it was easier to get away with such discrimination undetected than it would have been with a law that discriminated on its face. Only minor modifications to the law followed, and today, it is still a crime to possess any unlicensed firearm, loaded or not, either inside or outside the home. Licensing officers must be persuaded that there is “proper cause” — a term undefined by statute but extremely demanding as established by case law — to issue a license to carry a firearm. Such cause must be more than a generalized wish to protect oneself, even if the rationale extends to a vulnerable community or profession to which the person belongs — indeed, even for those employed in a high-crime area. The New York City Police Department goes as far as to require an “extraordinary personal danger” with documentation of “recurrent threats to life or safety.” That excludes the vast majority of the population.

Expect oral argument to cover the history of the right to bear arms and to explore questions of how many permutations of exceptions to the right to carry the Second Amendment might or might not permit. The applicable standard of review is inextricably tied to such an inquiry. The particulars about two individual plaintiffs, who have a “restricted” license for hunting and target-shooting but not for self-defense, might draw further questions. New York will hope such questions discourage the justices from recognizing any meaningful right to carry. But this case is not particularly difficult. The Sullivan Law covers so many clearly justifiable scenarios in which a firearm should be allowed to be carried in self-defense that the law cannot be kept in place without effectively striking the word “bear” from the Second Amendment.

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