Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Supreme Court in the 2022 case New York State Rifle & Pistol Association v. Bruen1 considered the constitutionality of a portion of New York’s handgun licensing regime relating to concealed-carry licenses for self-defense. The laws at issue in the case generally required a New York resident wishing to possess a firearm in public to get a “carry” license authorizing concealed carry, which typically required the license applicant to show “proper cause” —for carry unrelated to specific purposes like hunting or target practice, a “special need for self-protection distinguishable from that of the general community.” 2

The lower court in Bruen upheld the challenged laws based on the two-step inquiry described above,3 but in a 6-3 decision, the Supreme Court reversed.4 The majority opinion, authored by Justice Thomas, began by addressing the proper standard for evaluating Second Amendment challenges to firearm regulations and rejected the two-step framework that “combines history with means-end scrutiny.” 5 In the majority’s view, the two-step approach was inconsistent with Heller, which focused on text and history and “did not invoke any means-end test such as strict or intermediate scrutiny.” 6 As such, the Court concluded that the standard for applying the Second Amendment is rooted solely in text and history, stating the test as follows:

Turning, then, to the first question in the analysis—whether the Second Amendment’s text covers the conduct at issue—the majority opinion concluded that it did, as the word “bear” in the text “naturally encompasses public carry.” 8 As such, according to the majority, the Second Amendment “presumptively guarantees . . . a right to ‘bear’ arms in public for self-defense.” 9

On the next question of consistency with the country’s “historical tradition of firearm regulation,” the majority opinion provided some further guidance as to how to conduct the analysis, acknowledging that the “regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868.” 10 For this reason, the majority explained that historical analysis of modern-day gun laws may call for reasoning by analogy to determine whether historical and modern firearm regulations are “relevantly similar.” 11

With respect to how to determine what qualifies as relevantly similar, the majority opinion identified “at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” 12 As an example of modern laws that could pass muster by means of historical analogy, the majority opinion pointed to laws prohibiting firearms in “sensitive places” such as schools or government buildings, though the majority rejected the proposition that the “sensitive place” category could apply so broadly as to cover “all places of public congregation that are not isolated from law enforcement.” 13

Throughout the majority opinion, the Court provided further guideposts as to what sort of historical evidence would be most valuable, cautioning, among other things, against reading too much into early English law that did not necessarily “survive[] to become our Founders’ law” or ascribing too much significance to post-enactment history, at least where that history was inconsistent with the original meaning of the constitutional text.14 The majority declined to weigh in on whether the prevailing historical understanding for analytical purposes should be pegged to when the Second Amendment was adopted in 1791 or when the Fourteenth Amendment was ratified in 1868, as the majority opinion concluded that the public understanding was the same at both points for relevant purposes with respect to public carry.15

With framework and guidance in place, the majority opinion turned to its historical analysis, assessing whether a variety of laws from England and the United States proffered by the respondents met the burden of establishing that New York’s laws were consistent with the country’s historical tradition of firearms regulation.16 Ultimately, the majority concluded that the respondents did not meet the burden “to identify an American tradition justifying the State’s proper-cause requirement.” 17 While acknowledging that history reflected restrictions on public carry, which limited “the intent for which one could carry arms, the manner by which one carried arms,” or the particular circumstances “under which one could not carry arms,” the majority opinion concluded that “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense” or made public carry contingent on a showing of a special need.18 The few historical laws that the majority viewed as extending that far were, according to the opinion, “late-in-time outliers.” 19

Justice Alito joined the Court’s majority opinion in full but wrote separately to respond primarily to points made by the dissent. Justice Alito emphasized in his concurrence that the majority opinion did not disturb Heller or McDonald and said nothing about who may be prohibited from possessing a firearm, what kinds of weapons may be possessed, or the requirements for purchasing a firearm.20 Justice Kavanaugh, joined by Chief Justice Roberts, agreed that the New York’s licensing regime violated the Second Amendment but wrote separately to underscore that the Court’s decision would not prohibit states from imposing licensing requirements for public carry based on objective criteria so long as the requirements “do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense.” 21 Justice Kavanaugh, quoting from Heller, reiterated that the Second Amendment right is not unlimited and may allow for many kinds of gun regulations.22 Justice Barrett wrote a solo concurrence to highlight two open methodological questions regarding the role of post-ratification practice in historical inquiry and whether 1791 or 1868 should be the relevant benchmark year.23 She underscored that both questions were unnecessary to resolve in the present case but might have a bearing on a future case.24

Justice Breyer authored a dissent, joined by Justices Kagan and Sotomayor. The dissent objected to deciding the case on the pleadings without an evidentiary record as to how New York’s standard was actually being applied.25 More fundamentally, Justice Breyer disagreed with the majority’s “rigid history-only approach,” which he argued unnecessarily disrupted consensus in the U.S. Courts of Appeals, misread Heller, and put the Second Amendment on a different footing than other constitutional rights.26 The dissent also viewed the history-focused approach as “deeply impractical” because it imposed on judges without historical expertise—and courts without needed resources—the task of parsing history, raised numerous intractable questions about what history to consider and how to weigh it, and would “often fail to provide clear answers to difficult questions” while giving judges “ample tools to pick their friends out of history’s crowd.” 27 The dissent viewed the majority’s historical analysis regarding public carry as an embodiment of these impracticalities, as the majority found reasons to discount the persuasive force of numerous historical regulations similar to New York’s that appeared to meet the Court’s “analogical reasoning” test.28

Footnotes

1

No. 20-843 (U.S. June 23, 2022).

2

Id. at 3 (quoting In re Klenosky, 428 N.Y.S.2d 256, 257 (N.Y. App. Div. 1980)).

3

N.Y. State Rifle & Pistol Ass’n v. Beach, 818 F. App’x 99, 100 (2d Cir. 2020) (summary order) (citing Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 83, 100–01 (2d Cir. 2012)).

4

Bruen, slip op. at 63.

5

Id. at 8.

6

Id. at 13.

7

Id. at 15 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).

8

Id. at 23.

9

Id. at 24.

10

Id. at 18.

11

Id. at 20.

12

Id.

13

Id. at 21–22.

14

Id. at 26–28.

15

Id. at 29.

16

Id. at 29–62.

17

Id. at 30.

18

Id. at 62.

19

Id.

20

Id. at 2 (Alito, J., concurring).

21

Id. at 1–2 (Kavanaugh, J., concurring).

22

Id. at 3.

23

Id. at 1–2 (Barrett, J., concurring).

24

Id. at 2.

25

Id. at 14 (Breyer, J., dissenting).

26

Id. at 21–25.

27

Id. at 25–34.

28

Id. at 34–50.