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A Second Amendment Right to Conceal and Carry?

A Supreme Court ruling could vastly expand the number of Americans carrying concealed weapons.

Last Updated: June 23, 2022
Published: May 13, 2022

UPDATE: On June 23, the Supreme Court blocked the New York law.

In the coming days or months, the Supreme Court will rule on one of the most import­ant gun cases in the high court’s history. The case addresses whether gun owners have a consti­tu­tional right to carry their arms outside their homes and, if so, whether restrict­ive concealed carry licens­ing laws viol­ate the Second Amend­ment. Law professor and Bren­nan Center Fellow Eric Ruben discusses the case and its implic­a­tions.

This Supreme Court term, the justices are consid­er­ing New York State Rifle and Pistol Asso­ci­ation v. Bruen. Tell us about this case.

Ruben: Bruen involves a New York State law limit­ing who can carry a concealed hand­gun in public. For more than a century, New York­ers want­ing a license to carry a concealed hand­gun for self-defense have needed to show that they have what the law calls “proper cause”— basic­ally a greater need for self-protec­tion than others in the community. A judge determ­ined that the plaintiffs in Bruen did not satisfy that stand­ard. They both received concealed carry licenses, but they were restric­ted in terms of where they could carry their hand­guns. For example, one plaintiff was issued a license to carry a concealed hand­gun while trav­el­ing to and from work, and both plaintiffs’ licenses permit­ted them to carry concealed hand­guns for hunt­ing, target prac­tice, and in certain areas not “frequen­ted by the general public.”

Along with the National Rifle Asso­ci­ation’s New York affil­i­ate, the plaintiffs sued, contend­ing that the limit­a­tions placed on their licenses viol­ate the Second Amend­ment. They argue that the Second Amend­ment protects their right to carry a hand­gun virtu­ally whenever and wherever the need for self-defense might arise.

What makes Bruen differ­ent from previ­ous Supreme Court cases, partic­u­larly the land­mark decision in District of Columbia v. Heller (2008)?

For more analysis on gun rights and regu­la­tions, check out the Bren­nan Center’s Protests, Insur­rec­tion, and the Second Amend­ment series.

Ruben: In Heller, a bare major­ity of the justices struck down Wash­ing­ton, D.C.’s ban on hand­guns in the home. The Supreme Court held, for the first time in over 200 years, that the Second Amend­ment protects an indi­vidu­al’s right to keep and bear arms centered, not around a “well regu­lated Mili­tia,” but rather, around “the inher­ent right of self-defense.”

Heller was a land­mark case, consti­tu­tion­al­iz­ing a vast policy area — the regu­la­tion of weapons. That said, the law at issue was an outlier because only two major cities in the coun­try, DC and Chicago, had such a hand­gun ban.

The law chal­lenged in Bruen, in contrast, affects a lot more people than the hand­gun ban at issue in Heller. New York is one of eight heav­ily popu­lated states requir­ing that people seek­ing to carry a concealed hand­gun have a heightened need to do so. If the high court strikes down New York’s law, it will have imme­di­ate implic­a­tions in these states — home to roughly one-quarter of Amer­ic­ans.

Moreover, the impact on people in these states argu­ably will be more signi­fic­ant than the impact of Heller on people living in DC and Chicago. Heller ruled on the right to have a gun in one’s own home. If the Supreme Court rules that proper-cause laws are uncon­sti­tu­tional, resid­ents of these eight states can expect to inter­act with more people armed with a deadly weapon. Gun rights advoc­ates say that is a good thing for soci­ety — that “an armed soci­ety is a polite soci­ety” — but others, includ­ing the weight of schol­ar­ship, suggest other­wise.

What will you be watch­ing for when the opin­ion comes down?

Ruben: Of course, I’ll be watch­ing for the ruling on proper-cause permit­ting laws. The Supreme Court could uphold New York’s law, but after oral argu­ments many court watch­ers think that is unlikely. The Court could also strike down the chal­lenged aspect of the law, the proper cause require­ment, which would keep in place licens­ing, but remove most of its teeth. Another possib­il­ity is a middle-ground ruling. For example, at oral argu­ment, the plaintiffs’ attor­ney said that his clients had no inten­tion of going into New York City with their hand­guns. The justices could use that conces­sion to limit their ruling to non-urban places.

Another thing I’ll watch for is whether the Court uses this oppor­tun­ity to announce new Second Amend­ment doctrine, such as a judi­cial test deem­ing modern gun viol­ence irrel­ev­ant — and history and tradi­tion para­mount. That would be highly consequen­tial because it would affect the Second Amend­ment analysis of all chal­lenged weapons laws, not just proper-cause restric­tions.

After Heller, the lower courts have decided over 1,000 Second Amend­ment cases about everything from felon-in-posses­sion prohib­i­tions to assault-weapon bans. In doing so, they have applied a conven­tional approach that considers, among other things, modern public safety concerns. If a major­ity of the justices decide that Second Amend­ment cases should be resolved solely on the basis of text and history, not modern safety, we can expect a new round of litig­a­tion chal­len­ging laws previ­ously upheld under the conven­tional approach.

One narrat­ive circu­lat­ing is that the Second Amend­ment is being treated as a “second-class right” by courts. Does the case law support that narrat­ive?

Ruben: The “second-class” right trope has become increas­ingly common in some circles and may feature in the Court’s opin­ions. In a recent study, Joseph Blocher and I found no strong empir­ical support for the alleg­a­tion of wide­spread mistreat­ment of gun rights in the courts. Among other things, the success rate of Second Amend­ment claims is consist­ent with that in other consti­tu­tional contexts.

But the conten­tion of second-class treat­ment, which has an unmis­tak­ably partisan cast in court opin­ions, could nonethe­less have a profound impact. If a major­ity of the justices come to accept the second-class claim, that could ration­al­ize a decision to bolster judi­cial scru­tiny of gun laws and further limit the abil­ity of govern­ments to regu­late in this area.

If the Court strikes down New York’s law, how can federal, state, or local poli­cy­makers and voters balance the right to bear arms with public safety concerns?

Ruben: Poli­cy­makers will prob­ably adapt to the changed circum­stances and seek out altern­at­ive routes for regu­la­tion. I have a forth­com­ing essay in the Harvard Law Review Forum about how crim­inal laws govern­ing gun use, as opposed to gun carry­ing, provide incent­ives and disin­cent­ives for public carry through mech­an­isms like sentence enhance­ments, self-defense elements, burdens of proof, and legal infer­ences. If the Supreme Court strikes down New York’s proper cause require­ment, one avenue for regu­la­tion might be blocked, but that would merely redir­ect poli­cy­makers down other aven­ues.