The Supreme Court yesterday struck down a New York law that requires citizens to prove a "special need" in order to carry a handgun in public. The ruling expands the scope of the Second Amendment and devises a new legal standard for resolving constitutional challenges to gun regulations.
The case is New York State Rifle & Piston Assn. v. Bruen, issued on June 23. The law in New York going back decades is that you have to prove that "proper cause exists" to "have and carry" a weapon outside the home. The understanding was that a general need to protect yourself from street crime is not "proper cause," and that you need a more particularized reason to carry a weapon in public.
Prior to 2008, the Second Amendment was not interpreted to confer an individual right; it was understood to only protect militias. In the Heller ruling that year, the Court narrowly ruled for the first time that the Second Amendment does provide an individual right. Since that time, the courts have come up with legal standards to apply Heller in the context of actual cases. In the Second Circuit, where this case originated, the Court created a two-part test, first asking whether the challenged activity regulates Second Amendment activity, and if so, asking "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right." This balancing test weighed competing interests: the rights of gun owners and the social interest in regulating guns. The Second Circuit held in upholding this law that the core Second Amendment right is limited to self-defense in the home. That is the case that reached the Supreme Court.
The Supreme Court, in a 6-3 vote, rejects the Second Circuit's test for a simpler framework:
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."
So the new equation does not have a balancing test, which often applies in constitutional cases involving other amendments, including free speech, equal protection, due process, and search and seizures. This test is more absolute than other legal standards that the Court has devised in resolving constitutional disputes.
In justifying this new standard, Justice Thomas writes that the Court has adopted this approach in other constitutional contexts, including the First Amendment, which places the burden on the government justify speech restrictions and, "in some cases . . . asks whether the expressive conduct falls outside the category of protected speech," usually requiring some historical evidence. I will say that constitutional litigation is more complex than that. Most constitutional tests and frameworks involve multipart factors, including a balancing test that weighs the individual right against the governmental interest, and many speech regulations are actually upheld as constitutional. (The dissenting Justices agree with me on this). What is important here is that the Constitution does not provide legal standards for interpreting it. For me, it is always interesting when the Court comes up with a new framework to assist in deciding cases. Six Justices have settled upon this test for Second Amendment cases.
The Court proceeds to strike down the New York law requiring a limited "probable cause" requirement to carry a gun in public. It determines after extensive historical review that the country has not traditionally held gun owners to such a restricting carry requirement. In other words, the majority says, New York has not met its burden to "identify an American tradition justifying the State's proper-cause requirement." This ruling allows "law-abiding citizens with ordinary self-defense needs [to] exercise[] their right to keep and bear arms." My guess is that, under the new test, many other gun regulations will also be struck down.
The three liberals dissent. If you want the latest statistics about gun violence in America, as well as the many ways that guns have impacted daily life in America, take a look at Justice Breyer's dissent, noting among other things that 227 reported mass shootings have taken place since the start of 2022, more than one per day, and that we have nearly 400 million guns in the U.S., more than one per person. Approaching this issue under a different methodology, he concludes:
In my view, 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. The Second Circuit has done so and has held that New York’s law does not violate the Second Amendment.
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