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Analysis

Supreme Court About to Hear Major Case on Gun Restrictions

This ruling could change the course of future Second Amendment litigation.

October 21, 2021

This piece origin­ally was published by The Conver­sa­tion.

The stakes in one of the most signi­fic­ant Second Amend­ment cases in U.S. history are high.

The Supreme Court’s ruling in New York State Rifle & Pistol Asso­ci­ation v. Bruen, expec­ted by mid-2022, could declare a New York state restric­tion on carry­ing concealed hand­guns in public places uncon­sti­tu­tional.

Such a ruling in favor of the plaintiffs, which include a National Rifle Asso­ci­ation affil­i­ate, could loosen gun regu­la­tions in many parts of the coun­try.

In my view as a Second Amend­ment scholar, this case is also note­worthy in that how the court reaches its conclu­sion could affect the Second Amend­ment analysis of all weapons laws in the future.

The court is set to hear oral argu­ments on Nov. 3.

Long on the books

In 1911, after an increase in homicides, New York insti­tuted a hand­gun permit­ting system. In 1913, the permit­ting system was amended to address concealed carry­ing.

For more than a century, someone seek­ing to carry a concealed hand­gun for self-defense in the state has needed to file a permit applic­a­tion show­ing that they have what the law calls “proper cause.”

To obtain an unres­tric­ted permit, applic­ants must “demon­strate a special need for self-protec­tion distin­guish­able from that of the general community,” such as by show­ing they are being stalked.

New York’s attor­neys defend this restrict­ive approach to issu­ing concealed carry permits as an effect­ive means to reduce gun viol­ence. In 2020, there were 43,592 gun deaths in the United States, includ­ing suicides and homicides. There are also over 80,000 non-fatal fire­arm injur­ies each year.

New York has some of the strict­est gun laws in the coun­try, and its homicide rate is below the national aver­age.

The plaintiffs

Robert Nash and Brandon Koch were denied unres­tric­ted concealed carry permits because a judge determ­ined that they did not satisfy New York’s proper-cause stand­ard.

Instead, Koch was issued a license to carry a concealed hand­gun for self-defense while trav­el­ing to and from work. Both plaintiffs’ licenses also permit them to carry concealed hand­guns for hunt­ing and target prac­tice, and for self-defense in areas not “frequen­ted by the general public.”

Along with the NRA’s New York affil­i­ate, Nash and Koch contend that these limit­a­tions on their abil­ity to carry a concealed hand­gun viol­ate their right to bear arms. They assert a broad view of the right to carry a hand­gun, one that extends virtu­ally “whenever and wherever” the need for self-defense might arise.

New York’s law defies that concep­tion of the Second Amend­ment.

The Heller ruling’s muted effects

In consid­er­ing Bruen, the Supreme Court will focus on the mean­ing of an import­ant preced­ent: District of Columbia v. Heller.

When the Supreme Court issued its Heller ruling in 2008, a 5–4 major­ity struck down Wash­ing­ton, D.C.‘s ban on the posses­sion of hand­guns in the home. The court held for the first time that the Second Amend­ment protects an indi­vidu­al’s right to keep and bear arms.

Writ­ing for the major­ity, the late Justice Antonin Scalia declared that the “cent­ral compon­ent” of the Second Amend­ment was not a “well regu­lated Mili­tia,” but rather “the inher­ent right of self-defense.”

But the major­ity’s decision included caution­ary language that lower-court judges have since relied on to uphold gun laws.

“The right secured by the Second Amend­ment is not unlim­ited” and is “not a right to keep and carry any weapon what­so­ever in any manner what­so­ever and for whatever purpose,” Scalia wrote. His opin­ion even contained a list of “presumptively lawful regu­lat­ory meas­ures,” such as restric­tions on the posses­sion of fire­arms by felons or bans on carry­ing them in sens­it­ive places like schools and govern­ment build­ings.

The NRA and other gun rights support­ers have bristled at the general accept­ance by judges of the consti­tu­tion­al­ity of laws restrict­ing fire­arm use.

That discon­tent culmin­ated in Bruen.

More and more states have allowed concealed hand­guns

In 1980, most Amer­ic­ans lived in places that either banned concealed carry or had a New York-style “proper cause” permit­ting regime. An NRA push begin­ning in the late 1980s loosened public carry laws around the coun­try.

In states where gun rights advoc­ates possess relat­ively little clout, they hope that Bruen will accom­plish through the courts what they have failed to accom­plish through the polit­ical process.

Today, New York is one of eight states requir­ing that people seek­ing to carry concealed hand­guns have a “proper” or “good” cause. Cali­for­nia, Delaware, Hawaii, Mary­land, Massachu­setts, New Jersey and Rhode Island have similar laws on the books.

If the court strikes down New York’s law, Amer­ic­ans in those states could expect an increase in the number of people legally carry­ing hand­guns in their communit­ies. Anyone who wants to carry a concealed hand­gun would have an easier time doing so.

A 'text, history and tradi­tion test’

Bruen could also be a turn­ing point for how judges eval­u­ate all Second Amend­ment cases – whether they’re about assault weapons, tasers or felon-in-posses­sion offenses.

Until now, judges have gener­ally assessed whether such restric­tions are justi­fied by current public safety concerns.

Many gun rights advoc­ates are asking the Supreme Court to reject that approach. Instead, they want judges to decide cases on the sole basis of history and tradi­tion unless the judi­ciary’s inter­pret­a­tion of the text of the Second Amend­ment resolves the issue. This is known as the “text, history and tradi­tion” test.

Justice Brett Kavanaugh is cred­ited with first artic­u­lat­ing this test in a dissent he issued prior to his rise to the Supreme Court.

Justices Clar­ence Thomas, Neil Gorsuch and Amy Coney Barrett all have embraced similar judi­cial philo­sophies to some degree.

But there’s a catch: Guns have always been regu­lated in Amer­ica.

New York’s regu­la­tion has been on the books for over a century and had a legacy that exten­ded back even further.

If the justices aban­don a conven­tional approach for the text, history and tradi­tion test, I would expect a new round of lawsuits over weapons laws that have already survived prior court chal­lenges. Gun rights advoc­ates would likely, for example, sue over restric­tions on large-capa­city magazines or safe stor­age require­ments in places where those issues have already been resolved.

This litig­a­tion would call on judges to rule on the sole basis of a diffi­cult histor­ical exer­cise: compar­ing modern laws address­ing modern guns and contem­por­ary gun viol­ence to the laws, prac­tices and weapons of a bygone era.

Trump’s justices may tip the scales

The court has three main options.

It could uphold New York’s law. It could strike it down. Or it could find a middle ground, such as issu­ing a narrow ruling that punts big ques­tions about gun restric­tions down the road.

Chief Justice John Roberts has steered his colleagues toward narrow rulings before. But he will hold little sway if the three justices former Pres­id­ent Donald Trump appoin­ted team up with Samuel Alito and Clar­ence Thomas, the court’s two other conser­vat­ives, on a far-reach­ing major­ity opin­ion.

Trump conferred with the NRA before nomin­at­ing Gorsuch, Kavanaugh and Coney Barrett – all of whom received the gun group’s bless­ing.

The ruling will under­score the signi­fic­ance of their pres­ence on the court.