A New Standard for an Old Right

New York State Rifle & Pistol Association Inc. v. Bruen:

In a 6-3 opinion penned by Justice Clarence Thomas in New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court on Thursday (6/23) struck down New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm as violating the Fourteenth Amendment. The Court reasons the requirement prevents law-abiding citizens with ordinary self-defense needs outside the home from exercising their Second Amendment right to keep and bear arms.

The plaintiffs are two New York citizens who were repeatedly rejected for an unrestricted license. In New York, citizens are required to obtain a license to carry a firearm for any purpose. A restricted license allows citizens to carry firearms for limited purposes, such as hunting, target shooting, and employment. An unrestricted license, the license plaintiffs sought, requires the applicant to specify “proper cause exists” for a person to carry a firearm outside of the home for self-defense purposes.

Unlike 43 States that have “shall issue” jurisdictions which requires a firearm license be granted if objective criteria are met; New York is a “may-issue” jurisdiction with subjective criteria to be met to issue and discretionary power given to state officials to reject applications. Unrestricted licenses are rarely issued in New York as the discretionary standards have proven difficult to meet. To demonstrate “proper cause exists” for an unrestricted license, New Yorkers need to show evidence of a specific threat against their life or other evidence of an extraordinary danger to personal safety. Living in a crime ridden neighborhood or other general safety concerns are not enough for the state to grant the license. Furthermore, to possess a loaded firearm outside one’s home or place of business in New York without a license is a felony punishable by up to 15 years in prison.

The Supreme Court took issue with “may-issue” jurisdictions approach to firearm regulation and adopted a “text-and-history” standard for Courts to use when evaluating Second Amendment restrictions:

“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”.

The Court discusses a “two step” approach lower courts have used since District of Columbia v. Heller, 554 U.S. 570 (2008) (finding the Second Amendment to be an individual right unconnected to service in a militia) and McDonald v. City of Chicago, 561 U.S. 742 (2010) (the right of the people to keep and bear Arms applies to state and local governments as well as to the federal government) to assess Second Amendment regulations.

The first step of this test requires the Government to prove that the regulated conduct falls beyond the Amendment’s original scope, then the analysis can stop there; the regulated activity is categorically unprotected. However, if the historical evidence at this step is inconclusive or suggests that the regulated activity is not categorically unprotected, then the courts proceed to step two. The Supreme Court found the second step to be inadequate—at the second step, courts often analyze how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right. If a “core” Second Amendment right is burdened, courts apply “strict scrutiny” (a test most laws fail) and ask whether the Government can prove that the law is “narrowly tailored to achieve a compelling government interest”. The Court endorses the first step of the “two step” approach but concludes the second step’s means-end scrutiny is inconsistent with past precedent.

To prove means-end scrutiny is not appropriate for courts assessing Second Amendment restrictions, the Court walks through their approach in assessing the District of Columbia’s gun restriction in Heller. To interpret the Second Amendment the Supreme Court analyzed four post-ratification historical sources; specifically, the Court:

1) Reviewed three important founding-era legal scholars who interpreted the Second Amendment in published writings;

2) Looked to 19th century cases that interpreted the Second Amendment and found that they universally support an individual right to keep and bear arms;

3) Examined the discussion of the Second Amendment in Congress and in public discourse after the Civil War as people debated whether and how to secure constitutional rights for newly freed slaves; and

4) Considered how post-Civil War commentators understood the right.

Justice Thomas emphasizes that to reach their conclusion in Heller, the Court did not employ a means-ends scrutiny test, which requires judicial and often legislative deference. Rather, the Court focused on the historically unprecedented nature of the District’s ban and observed that few laws in the history of our Nation have come close to that severe of a restriction. By analyzing the public understanding of the plain text of the Second Amendment when ratified, the Court concluded in Heller is an individual right for law-abiding citizens to keep and bear arms inside the home. Although the arms restriction in Heller contextually referred to the right of citizens to keep and bear arms in the home, Bruen expands the constitutional guarantee by interpreting “bear” to encompass public carry for self-defense (i.e., outside the home).

There are still limits to the scope of the Second Amendment. For example, the Court recognizes a longstanding historical tradition of prohibiting the carry of dangerous and unusual weapons and prohibiting arms in “sensitive places” such as government buildings, schools, and polling places. Legislatures may constitutionally impose such regulations. However, by utilizing similar methodology as in Heller to assess the restrictions New York imposes on citizen’s Second Amendment right, the Court concludes New York’s restrictions are not supported by a historical tradition of similar arms restrictions and are unconstitutional. The Court reasons the right to keep and bear common arms for self-defense by adult, law-abiding, citizens is a fundamental right.

The Court’s objective for the new standard is to ensure the Government is not impeding on the fundamental right to keep and bear arms. If legislatures attempt to enact laws restricting the rights of their adult, law-abiding, citizens to keep and bear arms—it is imperative the legislature can point to specific historical evidence that gives their restriction validity. The Court emphasizes that not all history is created equal when evaluating the constitutionality of a Second Amendment restriction and the original public meaning of the constitutional text will always win.

The Court states: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” So, for the Second Amendment, historical evidence from 1791 is most persuasive; the Fourteenth Amendment was enacted in 1868—historical evidence that long predates either date may not illuminate the scope of the right. Therefore, historical documents and understandings close to the time of the enactment of the Second or Fourteenth Amendment are the most persuasive to the Court when determining if a restriction is constitutional. Later interpretations of the text or interpretations that contradict with the plain meaning as understood by the public that ratified the text are not as persuasive.

The Respondent’s three colonial-era arms regulations were not enough historical evidence to prove that New York’s proper-cause regulation was consistent with this Nation’s historical tradition of firearm regulation. The examples provided by Respondents were too tenuous—none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. The Court concludes handguns are in “common use” for self-defense and thus adult, law-abiding, citizens have a fundamental right to keep and bear handguns in public spaces.