June 23, 2022

Supreme Court Decides New York State Rifle & Pistol Association, Inc. v. Bruen

On June 23, 2022, the U.S. Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, No. 20-843, holding that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home and that New York’s requirement that an individual demonstrate a special need in order to do so violates those protections.

Under the challenged law, a New York resident may obtain a license to carry a firearm outside her home or business for self-defense if she establishes, among other things, that “proper cause” for the license exists. “Proper cause,” while not defined by statute, is a demanding standard. It must be “a special need for self-protection distinguishable from that of the general community,” such as “particular threats, attacks or other extraordinary danger to personal safety.”

Petitioners Robert Nash and Brandon Koch are law-abiding, adult citizens of New York who applied for, but were denied, unrestricted licenses to carry a handgun in public. Although Nash and Koch did not initially claim any special need beyond their desire for self-defense, Nash reapplied after a string of robberies in his neighborhood and Koch reapplied on the basis that he had extensive experience with firearms. Neither petitioner was successful in obtaining an unrestricted license, either on their initial applications nor their reapplications. The District Court dismissed petitioners’ complaint, and the Second Circuit affirmed, both on the basis of Circuit precedent upholding the constitutionality of New York’s gun-licensing statute, reasoning that the “proper-cause” requirement is “substantially related to the achievement of an important governmental interest.”

The Supreme Court reversed. It began its analysis by rejecting the means-end scrutiny test that the Courts of Appeals had adopted to evaluate Second Amendment challenges. It did so because applying means-end scrutiny would result in interest balancing by judges, and “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Instead, the Court held that the required test in such cases is whether the government can affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

The Court then turned to the historical tradition of firearm regulation in this country. It first held that the Second Amendment protects an individual’s right to carry a handgun in public for self-defense, because to hold otherwise would nullify the Amendment’s protection of the right to “bear” — i.e., carry — arms.

To satisfy their burden that the proper-cause limitation is constitutional, i.e., that it “is consistent with this Nation’s historical tradition of firearm regulation,” respondents relied on historical sources from five periods. After explaining why history that is much older or much newer than the constitutional provision at issue may hold questionable analytical value, the Court discussed each of the proffered historical traditions. The Court found ambiguous any history from the medieval to early modern English period because there is “little reason to think the Framers would have thought it applicable in the New World.” The Court was similarly unpersuaded by the period of the American Colonies to the early Republic, because “English subjects founded the Colonies at about the time England had itself begun to eliminate restrictions on the ownership and use of handguns.” The Court concluded that even the regulations passed during Antebellum America following the ratification of the Second Amendment did not impose the type of substantial burden that the New York statute does. The Court further found that public sentiment during Reconstruction demonstrates “how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens.” Finally, the Court refused to accord significant weight to regulations enacted in the western territories during the late-19th and early-20th centuries because (1) the western region of the country was sparsely populated and the Court would not “stake our interpretation of the Second Amendment upon a law in effect in a single State, or a single city,” especially when it contradicts the majority rule; (2) the regulations were rarely, if ever, subjected to judicial scrutiny; and (3) the regulations were transient.

Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett joined. Justice Alito filed a concurring opinion, in which Chief Justice Roberts joined. Justice Barrett filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.

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