Supreme Court Strikes New York Carry Restriction

Today, the Supreme Court, in a 6-3 decision in New York Rifle & Pistol Association v. Bruen, struck down New York’s requirement that to obtain a license to carry a concealed handgun, an applicant must satisfy licensing authorities that he or she has “proper cause” beyond a general concern for his or her safety, and a desire to be armed in case of the need for self-protection.

As a result, New York will have to establish objective guidelines for license issuance, not subject to the arbitrary whim of licensing authorities. In short, New York will have to become, like 42 other states, a “shall issue” state—if the applicant meets the objective standards, New York will have to issue the license (called a permit in some states).

The opinion was written by Justice Clarence Thomas, with Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett concurring, and leftist Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Justices Alito (with the Chief Justice joining) and Barrett filed opinions concurring with majority.

In the majority opinion’s statements provided below, “Heller” and “McDonald” refer to the Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

Majority Opinion

The Court first noted, as it did in Heller, that “the right of the people to keep and bear arms” refers to the right of individuals, and that handguns are a type of arm within the scope of that right, as is the carrying of handguns for protection. Because Heller was concerned with the carrying of handguns only within the home, while Bruen is concerned with carrying outside the home, the Court then addressed the latter:

“It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment protects. Nor does any party dispute that handguns are weapons ‘in common use’ (per Heller) today for self-defense. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.’

“We have little difficulty concluding that it does. . . . Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller, the ‘textual elements’ of the Second Amendment’s operative clause—‘the right of the people to keep and bear Arms, shall not be infringed’—‘guarantee the individual right to possess and carry weapons in case of confrontation.’

“Heller further confirmed that the right to ‘bear arms’ refers to the right to ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ This definition of ‘bear’ naturally encompasses public carry.”

The majority opinion also corrected the mistake of some lower federal courts, which have incorrectly said that Heller concluded that the “core” or “central component” of the right to arms is limited to defense within the home:

“As we stated in Heller and repeated in McDonald, ‘individual self-defense is “the central component” of the Second Amendment right’ . . . . Although we remarked in Heller that the need for armed self-defense is perhaps ‘most acute’ in the home, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. . . . The text of the Second Amendment reflects that reality. The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to ‘bear’ arms in public for self-defense.”

New York’s Argument

New York argued that its “proper cause” requirement was “substantially related to the achievement of an important governmental interest” (i.e., preventing handgun-related crime). However, the Court said:

“In keeping with Heller, we hold that when 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.’”

To emphasize the point, the Court did just that:

“We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

On the same point, New York argued that during the 1800s, several states prohibited the concealed carrying of various weapons. However, after noting that “Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate,” the Court said:

“[A]part from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Under Heller’s text-and-history standard, the proper-cause requirement is therefore unconstitutional.

Justice Barrett’s additional point

Justice Barrett, in her concurring opinion, made the important, related point, that the Second Amendment means what the Framers intended it to mean when they adopted it, not what state legislatures and courts decades later pretended it meant, to justify their restrictions on the concealed carrying of weapons:

“[T]oday’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights. On the contrary, the Court is careful to caution ‘against giving post-enactment history more weight than it can rightly bear.’”

Justice Breyer’s rather empty dissent

Justice Breyer’s dissent exemplifies the refusal of civilian disarmament advocates to recognize that the Second Amendment commands that the right to arms shall not be infringed. As Breyer and they see it, the amendment merely recognizes that people have an interest in being armed, but leaves it entirely to people who think like Breyer to criminalize one or another exercise of the right to arms as they see fit, for whatever reason they see fit. Because he had little else to offer, Breyer cut and pasted soundbites from his fellow anti-gunners, detailing statistics related to the misuse of guns.

Justice Alito responds to Breyer

In his opinion concurring with the majority, Justice Alito responded:

“[I]t is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.’

“What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?’

“The dissent cites statistics about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?’

“The dissent cites statistics on children and adolescents killed by guns, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, and bars the sale of a handgun to anyone under the age of 21.’

“The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self- defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense. . . .’

“Ordinary citizens frequently use firearms to protect themselves from criminal attack. According to survey data, defensive firearm use occurs up to 2.5 million times per year. A Centers for Disease Control and Prevention report commissioned by former President Barack Obama reviewed the literature surrounding firearms use and noted that ‘[s]tudies that directly assessed the effect of actual defensive uses of guns . . . have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies.’”

The Majority Opinion’s conclusion

“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ (McDonald.) We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. . . .’

“New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”

© 2022 Mark Overstreet