By Amy Howe
on Oct 27, 2021 at 10:51 am
Supporters of stronger gun regulations rally at the Supreme Court in 2019. (Rena Schild via Shutterstock)
The Second Amendment guarantees “the right of the people to keep and bear arms.” On Nov. 3, the Supreme Court will hear oral argument on how that guarantee applies to carrying guns in public. The case, New York State Rifle & Pistol Association v. Bruen, involves a 108-year-old handgun-licensing law in New York – but if the justices side with the challengers, their decision could jeopardize gun-control laws in other states and cities across the country.
Both sides in the case agree that the Constitution protects a right to carry a handgun outside of the home for self-defense, but they have very different views on whether and when the government can place restrictions on that right. The court’s decision is likely to be a major ruling on gun rights, and it could hinge on the justices’ view of the history of gun rights in England and the United States – a history that, like the right itself, the parties to the case hotly dispute.
Unlike most other areas of the law, the court has few recent cases to guide its ruling. In 2008, in District of Columbia v. Heller, the justices held that the Second Amendment protects an individual right to keep a gun in the home for self-defense. Two years later, in McDonald v. City of Chicago, the court confirmed that the states – and not just the federal government – must respect that right.
In the 11 years since McDonald, the justices have said little else about the scope of the Second Amendment, and in particular the right to carry a handgun outside the home. In 2019, the justices heard oral argument in a challenge to a New York City rule that restricted the transport of licensed handguns outside the city, but they sent that case back to the lower courts after the city changed the rule. In that case, some of the court’s more conservative justices suggested that the lower courts were applying the rulings in Heller and McDonald too narrowly. One of those justices, Justice Brett Kavanaugh, urged his colleagues to take up another gun rights case soon. In April 2021, the court – now with a 6-3 conservative majority after the addition of Justice Amy Coney Barrett – did just that when it agreed to hear New York State Rifle & Pistol.
The New York law at the center of the case resembles gun-control measures in several other states, including California, Hawaii, Maryland, Massachusetts, and New Jersey. Many cities also have similar restrictions. It requires anyone who wants a license to carry a concealed handgun outside of the home to show “proper cause” for the license. Courts in New York have defined “proper cause” to require applicants to show a special need to defend themselves. For instance, a person who has been the target of recurrent physical threats likely would qualify. But a general desire to protect oneself or one’s property is not enough to obtain an unrestricted license to carry a concealed handgun. (New York generally does not allow “open carry,” the practice of carrying unconcealed guns in public.)
The challengers in the case are a gun-rights advocacy group and two men, Robert Nash and Brandon Koch, whose applications for a concealed-carry license were denied. Both men, however, were granted a “restricted” license that allows them to carry a gun outside the home for target shooting and hunting. Koch is also allowed to carry a handgun for self-defense while traveling to and from work.
Nash, Koch, and the advocacy group went to federal court to challenge the ban on carrying handguns without a license. They also challenged what they view as the overly draconian “proper cause” requirement. The district court granted the state’s request to throw out the lawsuit, and the U.S. Court of Appeals for the 2nd Circuit upheld the dismissal. That led the challengers to come to the Supreme Court, which agreed to decide whether the state’s denial of Koch’s and Nash’s applications for a license violated the Second Amendment.
In their brief on the merits, the challengers contend that New York’s concealed-carry scheme is “upside down,” because the Second Amendment “makes the right to carry arms for self-defense the rule, not the exception.” In their view, the “text, history, and tradition of the Second Amendment” all lead to the conclusion that the denial of the men’s licenses was unconstitutional.
Starting with the text of the Second Amendment, they stress that the Second Amendment protects two separate rights: the right to “keep” – that is, possess – arms, generally at home; and the right to “bear” – that is, carry, for confrontation or defense — arms, typically outside the home. The right to “bear” arms, the challengers posit, must mean something separate from the right to keep arms, or its inclusion in the amendment would be superfluous.
This reading, the challengers continue, is supported by the history of gun rights in England and the United States before the ratification of the Constitution, as well as the years that followed. That history is likely to be especially important to the court’s conservatives, who believe the Second Amendment should be interpreted according to its original understanding at America’s founding. Heller, which was written by former Justice Antonin Scalia, relied extensively on historical sources (though the dissenters in that case disputed Scalia’s historical analysis). And the court’s three newest justices – Neil Gorsuch, Kavanaugh, and Barrett – all have suggested that they favor an originalist approach to the Second Amendment, rather than the more functional approach that many lower courts have adopted.
The challengers say history is on their side. Neither the American colonies nor the early states barred their residents from carrying guns, they emphasize; indeed, they note, state and local governments sometimes required their residents to carry guns. And during the country’s early years, the challengers add, the only restrictions that courts recognized on the right to carry a gun for self-defense were “narrow” ones “on abusing that right to terrorize the people.” The history of freed slaves after the Civil War also confirms their interpretation, the challengers assert, as Congress and the federal government “insisted that securing their Second Amendment rights was critical to ensuring that they could protect themselves” – a belief that hinged on “the understanding that the Second Amendment guaranteed the right to carry arms outside the home for self-defense.”
Because the text and history are so plain, the challengers conclude, New York’s denial of their concealed-carry applications violated the Constitution, and the New York law cannot survive no matter which constitutional test the court applies. More broadly, the challengers warn (as Justice Clarence Thomas has in the past) against treating the Second Amendment as a “second-class right.” The Supreme Court, they suggest, would not need long to strike down “a law that reserved First Amendment rights to those with an unusually compelling need to worship or criticize the government.”
The state does not dispute that there is a right to carry a gun outside the home for self-defense. It maintains, however, that the right is not absolute: A state can require, as New York has here, that anyone who wants to carry a handgun around other members of the public must show an actual need for protection. This kind of restriction, the state argues, is consistent with the practice in both England and the United States for the past 700 years, where the “[h]istory shows that local officials have long had wide latitude to decide where and under what circumstances firearms could be carried in public, and to restrict the carrying of concealable firearms, particularly in populous areas.” If anything, the state tells the justices, the New York law is in fact “less restrictive than many public-carry laws in place” in early American history.
The state adds that the Second Amendment does not require a “one size fits all” approach to concealed carry. Instead, the state observes, the United States has a “tradition of public-carry regulations that ‘suit local needs and values.’” It is for this reason, the state explains, that the other states with similar concealed-carry regimes “include the most densely populated cities of the country, consistent with the longstanding tradition of regulating public carry more closely in populous places.”
Even if the history did not show that New York’s scheme is constitutional, the state continues, the scheme would nonetheless pass muster under the constitutional test known as intermediate scrutiny. The more searching standard of review, known as strict scrutiny, does not apply, the state asserts, because the Supreme Court in Heller acknowledged that states have the authority to limit some public carrying of guns – for example, in schools and government buildings. The New York law can satisfy intermediate scrutiny, the state explains, because the state has strong interests in lowering rates of violent crime and gun violence, and it attempts to do so in a targeted way, by allowing people to carry handguns only when they have an actual need to do so. But if there is any doubt about whether the scheme can satisfy intermediate scrutiny, the state concludes, the court should send the case back to the lower courts for the development of more facts to make that decision.
The state ends with a warning for the justices. The challengers’ interpretation of the Second Amendment, it cautions, would not only strike down laws like New York’s. It also could mean the end for state and federal regulations “adopted to protect the public in sensitive places where people typically congregate — settings like courthouses, airports, subways, sports arenas, bars, gaming facilities, houses of worship, and schools.”
The high stakes in the case are reflected in the number of “friend of the court” briefs filed on both sides – over 80 in total, including one from the Biden administration supporting New York. One brief supporting the challengers comes from a group of public defenders and Black legal aid lawyers, who tell the justices that the consequences of New York’s licensing scheme are “brutal” for racial and ethnic minorities, who are “routinely … charged with a violent felony for simply possessing a firearm outside of the home, a crime only because they had not gotten a license beforehand.” Another brief supporting the challengers argues that New York’s law prevents groups that are particularly vulnerable to violent crime – such as women, LGBTQ+ people, and religious minorities – from carrying a handgun to protect themselves.
New York also finds unexpected support, including from a group of prominent Republican lawyers, headed by J. Michael Luttig, a former federal judge whose name was often mentioned as a possible candidate for the Supreme Court vacancy eventually filled by Chief Justice John Roberts. The group argues that the District of Columbia’s public-carry restrictions “may well have prevented a massacre” at the Capitol during the Jan. 6 insurrection because protesters had been warned that they weren’t allowed to carry their guns in D.C. and therefore did not bring them. Citing Justice Samuel Alito’s dissent in Obergefell v. Hodges, in which the court held that the Constitution guarantees same-sex couples a fundamental right to marry, the group concludes that “[d]ifferent legislatures, chosen by the people of different states, have made different choices about” whether to allow people to carry guns in public – precisely, the group says, as the Constitution intended.
