Supreme Court strikes down 'may issue' carry restrictions

June 23, 2022


Matthew Hoy

In a 6-3 decision, written by Justice Clarence Thomas, the Supreme Court on Thursday struck down New York's law that required citizens seeking to bear arms outside the home to show "proper cause"—something more than just a generalized desire to defend oneself with a firearm.

The decision in NYSRPA v. Bruen is the first Second Amendment case the court has ruled on in more than a decade.

A total of six states, by the Supreme Court's count, still require citizens to petition the government for permission to legally carry a firearm subject to the determination of a judge or law enforcement official of whether their fears are justified. In the other 43 states, anyone who meets a series of objective standards is issued a carry license.

In striking down New York's "may issue" system, the court unequivocally stated that the interest balancing approach that many circuit courts have adopted over the past decade is invalid when it comes to determining the contours of the Second Amendment's right to keep and bear arms.

If the last decade of Second Amendment litigation hast taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. It is this balance—struck by the traditions of the American people—that demands our unqualified deference. [citations omitted]

Thomas' survey of historic regulations on the right to carry arms in public shows that such laws were rare and often short-lived, including ones that were often struck down by courts or repealed in western territories once they became states. There was no historical analogue where the right to bear arms was dependent on convincing a government functionary of some special need.

Crowded places aren't 'sensitive places'

Justice Thomas' opinion also pre-empts a tactic that several pro-gun-control politicians had floated as a tactic to restrict the right to bear arms should the Court's decision come out as it did—broadly defining the so-called "sensitive places"—such as courthouses, government buildings, and schools—where the Court had previously stated in Heller that firearms had historically been prohibited.

Although we have no occasion to comprehensively define “sensitive places” in this case, we do think respondents errin their attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law. In their view, “sensitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.” It is true that people sometimes congregate in “sensitive places,” and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. [citations omitted]

New York Gov. Kathy Hochul vowed to restrict the impact of Thursday's decision.

The state will be looking at "sensitive locations" where concealed carry will be banned. When asked if all of New York City is one, Hochul said, "In my opinion, they are." However, the Supreme Court opinion seems to disagree.

Limited impact

In a concurring opinion written by Justice Brett Kavanaugh and joined by Chief Justice John Roberts, the two emphasize that the ruling focuses on the discretionary nature of "may issue" gun permitting regimes and strikes them down because of it. They note that other requirements, including those in place in the 43 states that are "shall issue" jurisdictions, are not affected by NYSRPA.

Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements. Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice. [citations omitted]

In the majority opinion, Justice Thomas notes that even in a shall-issue situation, excessive fees or long wait times may still violate the Second Amendment right, but those will certainly be litigated on a case-by-case basis.

A Constitutional right to concealed carry?

A number of leftist lawyers and commentators on Twitter have scoffed at the idea that the Constitution requires allowing citizens to carry weapons concealed. Here, they both have a point, and miss the forest for the trees. Former solicitor general Neal Katyal is an example.

The court's ruling was solely on whether the right to "bear" arms extends outside the home, rather than just from the kitchen to the parlor. New York, and other states—including California—have banned open carry because in our society that tends to cause panics among some Americans and consumes finite police resources in responding to calls of people legally open carrying. With open carry banned, the only way to "bear" arms in public in these states is "concealed carry."

Today's ruling deals with concealed carry because that is a policy choice that has been made by the people of New York and its legislators. Should the people of New York choose to ban concealed carry and allow open carry, there is nothing in this decision that would prevent that policy choice, other than in either case, the government-issued permitting system must be shall-issue.

No more 2nd Amendment Two-step

Today's decision has the biggest impact on the many circuit courts that curiously adopted and institutionalized the means-end test first suggested in Justice Stephen Breyer's Heller dissent.

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.

Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. 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.”

It's this two-step that has allowed the Ninth Circuit to repeatedly justify Second Amendment infringements that cannot stand up to a historical understanding of that right as it was recognized at the founding.

Removing this "strict-" or "intermediate-scrutiny" façade from their tool chest and requiring the court to find a historical analogue to modern day gun control restrictions will likely doom a slew of laws of recent vintage, including:

  • "Assault weapon" bans
  • Background checks for ammunition purchases
  • Magazine capacity restrictions
  • Bans on firearms purchases by 18-21 year olds
  • Gun storage laws
  • "Gun insurance" requirements
  • Waiting periods
  • California's "safe handgun roster" that requires the non-existent technology of microstamping

And potentially many more.

Let a thousand lawsuits bloom

These changes will not occur overnight, but will instead require lawsuits to be filed at the state and local level around the nation. The good news is that there is a light at the end of the tunnel for those who are fighting for our Second Amendment rights, and that light does not appear to be an oncoming train.

A personal note

The main reason I created Restricted Arms was to guide people through the convoluted process of exercising their Second Amendment rights in states that were hostile to the right. Today's decision by the Supreme Court is hopefully the beginning of the end of that need—and I couldn't be happier at the possibility.

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