Supreme Court Strikes Down New York Law Requiring Concealed Carry Applicants to Show ‘Special Need for Self-Protection’

What’s the story?

• The Supreme Court on Thursday issued a decision in a case known as New York Rifle & Pistol Association v. Bruen that struck down a New York state law requiring citizens seeking a concealed carry permit to demonstrate a special need for self-protection above that of the general public. 
• The case concerned a pair of law-abiding residents of New York who had their applications denied because officials alleged that they had failed to satisfy the “proper cause” requirement.
• New York’s law required that a person applying for an unrestricted permit to carry a concealed firearm in public to demonstrate that “proper cause” existed for the issuance of a license, including for target shooting, hunting, or self-defense. The proper cause requirement could only be satisfied if the applicant can “demonstrate a special need for self-protection distinguishable from that of the general community.”
• The Court’s decision in Bruen went 6-3 along ideological lines with conservatives in the majority. It held that New York’s proper cause requirement violated the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. 
• Bruen expands upon and clarifies prior Supreme Court precedent in Heller, which held that both the Second and Fourteenth Amendments protect an individual’s right to keep and bear arms for self-defense, by holding that there is a constitutional right to carry a handgun for self-defense outside the home.
• The Court also emphasized its use of the text, history, and tradition test adopted in Heller and affirmed in McDonald, which held that states and cities are also bound by Heller when regulating guns, and that to justify firearm regulations the government must demonstrate that it’s consistent with the country’s historical tradition of firearm regulation.

What did the justices say?

• Justice Clarence Thomas wrote the majority opinion for the Court, which was released on his birthday. Thomas was joined by Chief Justice John Roberts, Justice Samuel Alito, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. The majority opinion read in part:

“In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home. 

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution…

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. 

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.” 

• Justice Samuel Alito filed a concurring opinion, as did Justice Brett Kavanaugh (who was joined by Chief Justice John Roberts), and Justice Amy Coney Barrett.
• Justice Stephen Breyer filed a dissenting opinion that was joined by Justice Sonia Sotomayor and Justice Elena Kagan. The dissenting opinion read in part:

“In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022) (CDC, Fast Facts), https://www.cdc.gov/violenceprevention/ firearms/fastfact.html. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolence archive.org. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. J. Goldstick, R. Cunningham, & P. Carter, Current Causes of Death in Children and Adolescents in the United States, 386 New England J. Med. 1955 (May 19, 2022) (Goldstick).

Many States have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so. It invokes the Second Amendment to strike down a New York law regulating the public carriage of concealed handguns. In my view, that decision rests upon several serious mistakes.  

First, the Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in practice. Second, the Court wrongly limits its analysis to focus nearly exclusively on history. It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be. The Constitution contains no such limitation, and neither do our precedents. Third, the Court itself demonstrates the practical problems with its history-only approach. In applying that approach to New York’s law, the Court fails to correctly identify and analyze the relevant historical facts. Only by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is not “consistent with the Nation’s historical tradition of firearm regulation.” See ante, at 15.

In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. The Second Circuit has done so and has held that New York’s law does not violate the Second Amendment. See Kachalsky v. County of Westchester, 701 F. 3d 81, 97–99, 101 (2012). I would affirm that holding. At a minimum, I would not strike down the law based only on the pleadings, as the Court does today—without first allowing for the development of an evidentiary record and without considering the State’s compelling interest in preventing gun violence. I respectfully dissent.”

What does it mean?

• New Yorkers will likely still have to apply to obtain a concealed carry license, but assuming the state’s government abides by the ruling of the nation’s highest court, they won’t have to demonstrate a special need for self-defense beyond that of the general public.
• States and jurisdictions that have objective standards for issuing concealed carry permits will be unaffected by the ruling, although those like New York with “may issue” laws that give officials discretion to deny permits because the applicant hasn’t demonstrated “proper cause” will have to revisit their laws in compliance with Bruen.
• Aside from New York, jurisdictions with “may issue” laws with “proper cause” standards include California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey.
• New York Gov. Kathy Hochul (D), who is in the midst of a re-election campaign, recently signed new gun control policies into law and signaled that New York Democrats are “closely reviewing our options” and may convene a special session of the legislature.

RELATED READING

• Supreme Court to Hear Case on Second Amendment Right to Carry Concealed Handguns for Self-Defense (4/26/21)
• What Are Gun Rights? (3/9/20)

— Eric Revell

(Photo Credit: iStock.com / Rdlamkin)