New York State Rifle Assn. v. Bruen: Requiring “special need” to obtain gun license to carry gun outside home violates Second Amendment
Requiring gun license applicants to demonstrate a “special need” to obtain a license to carry a gun outside the home violates the Second Amendment, the U.S. Supreme Court ruled June 23 in New York State Rifle and Pistol Association v. Bruen.
Forty-three states issue gun license based on objective criteria.
But six states, including New York, condition issuance of a license on an applicant demonstrating some additional need for the license.
New York requires a showing of “proper cause” to obtain a license to carry a gun outside the home. Living or working in a high-crime area does not constitute “proper cause.”
New York requires a showing of “particular threats, attacks or other extraordinary danger.”
New York residents Brandon Koch and Robert Nash, who had no criminal history, applied for licenses to carry a gun outside their homes for general self-defense. Their applications were denied because they could not demonstrate a unique need for self-defense.
They brought suit under Section 1983, alleging denial of their Second Amendment rights.
The District Court denied their claims.
The Second Circuit affirmed on grounds the special need requirement was “substantially related to the achievement of an important governmental interest.”
The Supreme Court reversed, in a 6-3 opinion, by Justice Thomas.
To justify regulation of Second Amendment rights, “the government may not simply posit that the regulation promotes an important interest,” the Court said. “Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
Nothing in the historical record of English or early American history demonstrates “a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense,” the Court said. “Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.”
During the 18th and 19th centuries, guns could be prohibited in “sensitive places,” such as legislative assemblies, polling places and courthouses, the Court said.
“But expanding the category of ‘sensitive places’ simply to all places of public congregation … defines the category of ‘sensitive places’ far too broadly,” the Court said. This “would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.”
Historical evidence also indicates states did limit concealed carrying of guns, “so long as they left open the option to carry openly,” the Court said.
But “[n]one of these historical limitations on the right to bear arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose,” the Court said.
“We know of no other constitutional right that an individual may exercise only after demonstrating to government officials some special need,” the Court said. “And it is not how the Second Amendment works when it comes to public carry for self-defense.”
New York has not met its “burden to identify an American tradition justifying the State’s proper-cause requirement,” the Court concluded.
Alito says what is not decided
Justice Alito concurred, but said the opinion “decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.”
“Nor does it decide anything about the kinds of weapons that people may possess,” he said.
Finally, the opinion does not “disturb” anything the Court previously said in District of Columbia v. Heller or McDonald v. Chicago about restrictions that can be imposed on possession or carrying of guns.
Kavanaugh also discusses opinion’s limits
Justice Kavanaugh, joined by Chief Justice Roberts, concurred, but wrote separately “to underscore two important points about the limits of the Court’s decision.”
“First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying handguns for self-defense,” Kavanaugh said.
“In particular, the Court’s decision does not affect the existing licensing regimes – known as ‘shall-issue’ regimes – that are employed in 43 States,” he said. “The Court’s decision addresses only the unusual discretionary licensing regimes, known as ‘may-issue’ regimes.”
Second, the opinion should not “be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications s on the commercial sale of arms,” he said.
Justice Barrett discusses historical time periods to use
Justice Barrett concurred, but wrote separately to note “two methodological points that the Court does not resolve.”
First, the Court did not “conclusively determine” the manner and circumstances in which events after ratification of the constitution’s amendments may bear on the original meaning of the constitution, she said.
Second, the Court does not resolve “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 or when the Bill or Rights was ratified in 1791,” she said.
“Here, the lack of support for New York’s law in either period makes it unnecessary to choose between them,” she said.
“[T]oday’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights,” she said. “On the contrary, the Court is careful to caution against giving postenactment history more weight than it can rightly bear.”
Justice Breyer dissented, joined by Justices Kagan and Sotomayor.
Breyer said the Court’s historical methodology was “deeply impractical,” and that a governmental interest analysis should have been used.
Judges are not “accustomed to resolving difficult historical questions,” he said.
“Courts are, after all, staffed by lawyers, not historians,” he said. “Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.”
“Indeed, the Court’s application of its history-only test in this case demonstrates the very pitfalls described,” he said.
Breyer said there was a “700-year Anglo-American tradition of regulating the public carriage of firearms,” which supports New York’s law.