In New York State Rifle & Pistol Association., Inc. v. Bruen, 20-843 (U.S. June 23, 2022), the petitioners alleged that the respondents violated their Second and Fourteenth Amendment rights by denying their license applications to publicly carry handguns on the basis that they had failed to show proper cause. The United States Supreme Court granted certiorari to decide whether New York’s denial of the petitioners’ license applications violated the Constitution.
Under New York’s licensing scheme, if a person wants to carry a firearm outside their home or place of business for self-defense, the applicant must obtain an unrestricted license to have and carry a concealed pistol or revolver. To secure that license, the applicant must prove that proper cause exists to issue it. If an applicant cannot make that showing, they can receive only a restricted license, which allows them to carry a firearm for a limited purpose, such as hunting, target shooting, or employment. No New York statute defines “proper cause,” but New York courts have held that an applicant shows proper cause only if they can demonstrate a special need for self-protection distinguishable from that of the general community. If an applicant is denied an unrestricted license, judicial review is limited. New York courts defer to a licensing officer’s application of the proper-cause standard unless it is arbitrary and capricious.
The majority of the Court rejected the two-step framework that Courts of Appeals have used to analyze Second Amendment challenges. This two-step framework combined history with means-end scrutiny. Instead, the Court held that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. In such cases, the government must 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 protection of the Second Amendment.
The majority explained that, given the legal history of prohibitions of the carrying of firearms in certain “sensitive places,” such as legislative assemblies, polling places, and courthouses, it could assume it settled that arm carrying in such places could be prohibited consistent with the Second Amendment. Therefore, courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carrying of firearms in new and analogous sensitive places are constitutionally permissible. However, the majority rejected the respondents’ argument that “sensitive places” include all places where people typically congregate and where law enforcement and other public-safety professionals are presumptively available. The majority found that this definition was too broad and would in effect exempt cities from the Second Amendment, eviscerating the general right to publicly carry arms for self-defense.
The majority reasoned that nothing in the text of the Second Amendment draws a home/public distinction with respect to the right to keep and bear arms. Thus, the Second Amendment’s plain text presumptively guaranteed the petitioners’ right to bear arms in public for self-defense.
The majority reasoned that because the text of the Second Amendment covered the petitioners’ conduct, the burden fell on the respondents to show that New York’s proper-cause requirement was consistent with the nation’s historical tradition of firearm regulation. Only if the respondents carried that burden could they show that the right codified in the Second Amendment, and made applicable to the States through the Fourteenth, did not protect the petitioners’ proposed course of conduct.
Handguns are no longer considered “dangerous and unusual”
The respondents showed that colonial legislatures sometimes prohibited the carrying of dangerous and unusual weapons. The majority found that these statutes did not ban the carrying of any type of firearms, but instead merely codified the existing common-law offense of bearing arms to terrorize the people. Nonetheless, the majority found that even if these colonial laws prohibited the carrying of handguns because they were considered dangerous and unusual weapons in the 1690s, these laws provided no justification for laws restricting the public carry of handguns today. The majority explained that the Second Amendment only protects the carrying of weapons that are in common use at the time, as opposed to those that are highly unusual in society at large. Today, handguns are indisputably in common use for self-defense.
History showed the manner of public carry was subject to reasonable regulation
The majority acknowledged that historical evidence showed the states could lawfully eliminate one kind of public carry, concealed carry, so long as they left open the option to carry openly.
Surety statutes were not analogous
The respondents argued that surety statutes that were adopted by many jurisdictions in the mid-19th century were analogous to New York’s good cause restriction. The majority rejected this argument and found that the New York law presumed that individuals have no public carry right without a showing of heightened need while the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of reasonable cause to fear an injury or breach of the peace. Furthermore, even after such a showing, an accused arms-bearer could continue to carry without criminal penalty so long as they posted money that would be forfeited if they breached the peace or injured others.
Outliers are not persuasive
The respondents cited two late-19th-century Texas cases that upheld a law requiring any pistol-bearer to have reasonable grounds fearing an unlawful attack on one’s person as a legitimate regulation of handgun carriage. The majority acknowledged that these cases supported New York’s law, but dismissed them as outliers. Similarly, the majority dismissed short-lived territorial restrictions on the right to public carry as well as a late-19th-century Kansas law that instructed cities with more than 15,000 inhabitants to pass ordinances prohibiting the public carry of firearms. Given the population distribution of Kansas at the time, the majority found the Kansas law did not prove that Kansas meaningfully restricted public carry, let alone demonstrate a broad tradition of states doing so.
The majority held that New York’s proper-cause requirement was unconstitutional. Therefore, the Court reversed the judgment of the Court of Appeals and remanded the case for further proceedings.
Writing for the dissent, Justice Breyer explained that when courts interpret the Second Amendment, it is constitutionally proper and often necessary to consider the serious dangers and consequences of gun violence that lead states to regulate firearms. The majority did not discuss the nature or severity of the problem of gun violence in its decision.
Justice Breyer criticized the majority for deciding this case on the basis of the pleadings. Thus, the majority opinion’s negative characterization of the New York Law as giving licensing officers too much discretion and providing too limited judicial review of their decision, and its findings that the proper cause standard was too demanding, and that these features make New York an outlier compared to the vast majority of states, were made without any evidentiary record to support it. Furthermore, the majority failed to recognize that “shall issue” licensing regimes are a relatively recent development and that those states that still have “may issue” regimes account for over a quarter of the country’s population.
Justice Breyer rejected the majority’s history-only approach to constitutional rights. In using this approach, the majority replaced the Courts of Appeals’ consensus framework, which has been applied without issue for over a decade. Additionally, the Court regularly uses means-end scrutiny in cases involving other constitutional provisions, including the First Amendment.
Justice Breyer found that this historical approach was impractical. Lower courts are ill-equipped to conduct the type of historical analysis this approach requires, whereas lawyers and courts are well equipped to administer means-end scrutiny. Furthermore, Justice Breyer noted that the majority gave the lower courts little guidance regarding how to utilize this approach. The majority did not say how many cases or laws would suffice “to show a tradition of public-carry regulation,” or what suffices as a “representative historical analog.” Nor did the majority give any guidance as to what locations in a modern city with no obvious 18th- or 19th-century analog may constitute a “sensitive place.”
Justice Breyer also expressed concern that history will be an inadequate tool when it comes to modern problems. Founding-era towns were unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted were unlikely to address modern needs.
Even so, Justice Breyer recounted a number of historical laws that resembled New York’s law in that they similarly restricted the right to publicly carry weapons and served similar purposes. Furthermore, Justice Breyer noted that New York’s law was well over 100 years old. Thus, it had a longer historical pedigree than at least three of the four types of firearms regulations that the Court previously identified as “presumptively lawful.” The majority rejected these laws’ persuasive values for various reasons but did not explain what could show a tradition and history of regulation that supported the validity of New York’s law.
Justice Breyer explained that while District of Columbia v. Heller, 554 U.S. 570 (2008) (“Heller”) interpreted the Second Amendment to protect an individual right to possess a firearm for self-defense, it also recognized that that right was not without limits and could appropriately be subject to government regulation. In such circumstances, it is appropriate to look beyond history and engage in means-end scrutiny. Courts must be permitted to consider the state’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives. The Second Circuit previously applied this analysis and held that New York’s law did not violate the Second Amendment.
In contrast, the majority struck down New York’s law without allowing for discovery or the development of any evidentiary record, without considering the state’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision.