Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Today’s Supreme Court decision in New York State Rifle and Pistol Association v. Bruen is not only the most important Second Amendment ruling since D.C. v. Heller, it is potentially the most important Second Amendment ruling in American history.
For all the brouhaha, the question at hand in Bruen was rather straightforward: Can the state of New York require that applicants for gun-carry permits “demonstrate a special need for self-protection distinguishable from that of the general community,” or is New York obliged by the Constitution to offer a “shall issue” regime of the sort that 43 of the other 49 states have adopted? By a 6–3 vote, the justices decided that the latter approach is required. In the United States, Clarence Thomas’s majority opinion concluded, “authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.” Moreover, while there is nothing illegal about America’s existing state-level permitting systems, those systems may not be mere smokescreens for outright prohibition, unequal protection, or unacceptable delay. “We do not rule out,” Thomas added in a footnote, any “constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
As Justice Alito was keen to note, this “holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess.” It concludes solely that:
The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.
Bottom line: New York is allowed to exclude carry-permit applications on a categorical basis (e.g., the applicant has a felony conviction), but not on a subjective one (e.g., the applicant doesn’t “need” a gun in the view of the determining officer).
To get there, the majority first determined that “nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.” Indeed, “to confine the right to ‘bear’ arms to the home,” the majority observed, “would nullify half of the Second Amendment’s operative protections.” This, Thomas explained, would not do, because “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.’”
Next, the majority examined the relevant history. In its brief, the state of New York offered up three objections to the claim that broad gun-carry rights have a long historical pedigree in the United States: the existence of “common-law offenses” prior to the Second Amendment’s ratification; the existence of “statutory prohibitions” before, during, and after the late 18th century; and the existence of “surety statutes” that required Americans who carried guns in public to post bond before doing so. As in Heller, the majority made short work of all three contentions.
The “common law” in question is primarily the Statute of Northampton, an English law that was passed in the 14th century and adopted by many American colonies in the 17th century. But, as Thomas noted in what is a thorough and much-deserved fisking, even if one believed that the meaning of the Statute of Northampton (1328) could somehow limit the meaning of the Second Amendment (1791), the interpretation presented by the plaintiffs would still be wrong. (And probably deliberately so: During oral arguments, Justice Alito chided one of the state’s lawyers for cutting out some of the Statute’s key words.) By its plain text, the Statute of Northampton prohibited the carrying of arms in order to terrify others or to breach the peace; it did not prohibit the carrying of arms per se. That being so, the Court concluded that there is “no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry.”
The same problem pertained to the “surety statutes” that were offered up in New York’s defense. As Thomas noted, such laws did indeed require people who “could not prove a special need for self-defense, to post a bond before publicly carrying a firearm,” but — and this is crucial — only in such cases as those people were deemed “reasonably likely to ‘breach the peace.’” To explain this, Thomas cited William Rawle, who explained at the time of the Constitution’s ratification that the carrying of arms was “sufficient cause to require [the carrier] to give surety of the peace” only when it was “attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them.”
The final area of inquiry was into the various statutory prohibitions and limits on carry that have been in force throughout American history. This area of the law is a little more complex — especially given that, under Thomas’s judicial approach, “historical evidence that long predates or postdates” the passage of the Second Amendment and the 14th Amendment “may not illuminate the scope of the right” — but, on balance, Thomas was correct to note that, historically, “concealed-carry prohibitions” have been “constitutional only if they did not similarly prohibit open carry.” Or to put it another way: Even if one believes that statutes regulating carry are important to ascertaining the original public meaning of the Second Amendment, one has to reckon with the fact that New York prohibits open carry completely, that it refuses to permit concealed carry on an equal basis, and that it is therefore in violation of the plain meaning of the “bear arms” provision within the Second Amendment as incorporated via the 14th.
Summing up his approach, Thomas submitted that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.” In so doing, he clarified many of Heller’s loose ends, and took a great stride toward ensuring that recalcitrant lower-court judges are unable to wiggle out of its terms. “Since Heller and McDonald,” Thomas noted, “the Courts of Appeals have developed a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many.” Heller, Thomas confirmed, “did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.” Message: Going forward, those courts must stop playing games.
This clarification evidently infuriated Justice Breyer, who began his dissent by recording that “in 2020, 45,222 Americans were killed by firearms,” and then insisted that, “when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms.” “In my view,” Breyer wrote, “the question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts.” A few paragraphs later, however, he gave the game away. By defending New York’s law on the basis that “there is nothing unusual about broad statutory language that can be given more specific content by judicial interpretation,” he made it clear exactly why Thomas is so committed to the idea that, while “historical analysis can sometimes be difficult and nuanced . . . reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.”
“Much of the dissent,” Justice Alito wrote in concurrence, “seems designed to obscure the specific question that the Court has decided.” And, indeed, it does. At various points, Breyer lists mass shootings, shares suicide statistics, and discusses domestic violence, as if the Court were a legislature, as if the Second Amendment didn’t exist, and as if the presence of evil in American life magically negated the law. But it doesn’t, as Thomas was keen to point out. “That,” he wrote, “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,” either.