Does the Second Amendment guarantee all Americans the right to carry concealed firearms outside the home for the purpose of self-defense?
This case asks the Supreme Court to determine whether New York’s discretionary gun permit law, which requires an applicant demonstrate “proper cause” to carry a weapon for self-defense purposes, violates the Second Amendment. Robert Nash and Brandon Koch applied for a general concealed carry permit under New York law, but their applications were denied by Richard McNally for lack of proper cause. New York State Rifle & Pistol Association (“NYSRPA”) contends that at least one of its members would be eligible for a concealed carry permit but for New York’s proper cause requirement. Petitioners Nash, Koch, and NYSRPA brought a Section 1983 claim challenging the law, arguing that it violates their Second Amendment right to bear arms. Respondents McNally and Kevin Bruen—the superintendent of the New York State Police—counter that the law is a valid exercise of New York’s regulatory power. This case has important implications for the future of gun ownership and regulation, public safety, and racial discrimination.
Questions as Framed for the Court by the Parties
New York law criminalizes the possession of handguns; however, a New York citizen may apply for a license to own, and in some circumstances even publicly carry, a handgun. NY State Rifle and Pistol Ass’n, Inc. v. Beach at 145. Government officials, called licensing officers, review these applications and decide whether the applicants meet the requirements set forth in New York Penal Law Section 400.00 (“Section 400.00”). Id. In addition to imposing objective requirements for licenses—such as restrictions on the age, criminal history, and citizenship of licensees—Section 400.00 requires licensing officers to decide whether an applicant has “proper cause” for a license. Id. at 146. When an applicant seeks a license to carry a handgun for self-defense purposes, New York courts have interpreted Section 400.00 to require the applicant to demonstrate some unique, heightened need for self-protection relative to the general population. Id. Licensing officers’ have discretion in defining proper cause whenever determining whether an applicant’s need is sufficiently heightened. Id. If a licensing officer determines that an applicant does not have proper cause for a self-defense license, they can grant the applicant a “restricted” license, allowing the applicant to carry a handgun only for certain purposes, such as hunting and target practice. Id.
NY State Rifle & Pistol Association (“NYSRPA”) is a New-York-based firearms advocacy organization. Id. The NYSRPA claims at least one of its members would be otherwise eligible for a concealed carry handgun license for self-defense—that is, the member satisfies the objective requirements of Section 400.00—but a licensing officer determined they did not satisfy the proper cause requirement. Id. Both Robert Nash and Brandon Cook are NYSRPA members that applied for such licenses. Id. Robert Nash was granted only a restricted license for hunting and target practice; however, he appealed the decision, requesting his license be expanded to include self-defense. Id. Despite Nash citing instances of robberies near his home, Richard McNally—a justice of the New York Supreme Court, Third Judicial District and licensing officer—denied Nash’s request for failure to show proper cause. Id. at 144, 146. After being granted a similarly restricted license, Koch also requested that McNally expand Koch’s license to cover self-defense. Id. Again, despite Koch’s showing that he had extensive experience safely operating firearms, McNally denied Koch’s request for failure to show proper cause. Id. at 147.
NYSRPA, Nash, and Koch (collectively, “NYSRPA et. al”) brought a Section 1983 suit against George Beach, Bruen, and McNally, alleging that the proper cause requirement violated the Second Amendment. Id. at 144. Relying on case law upholding the same New York licensing laws challenged here, the District Court Judge in the Northern District of New York dismissed the claim. Id. at 148–49.
NYSRPA et. al appealed to the United States Court of Appeals for the Second Circuit, arguing primarily that the cases on which the district court relied were improperly decided; however, the Second Circuit affirmed the district court’s judgment. N.Y. State Rifle & Pistol Ass'n v. Beach at 1–2. Nonetheless, the Supreme Court granted NYSRPA et. al’s petition for certiorari on April 26, 2021. Brief for Petitioners, NYSRPA et al., at 22.
THE TEXT, HISTORY, AND TRADITION OF THE SECOND AMENDMENT
Petitioner New York State Rifle & Pistol Association Inc. (“NYSRPA”) argues that the text of the Second Amendment clearly supports the right not only to possess firearms, but also carry them outside the home. Brief for Petitioner, NYSRPA et al. at 25. NYSRPA asserts that under traditional norms of Constitutional interpretation, every word holds meaning and therefore “to keep and bear arms” must mean that Americans have a right to both possess and “bear,” or carry, arms. Id. at 25-26. NYSRPA also asserts that this interpretation is consistent with the history of the Second Amendment by citing to the Second Amendment’s predecessor, the 1689 English Bill of Rights. Id. at 29. NYSRPA points out that the English Bill of Rights granted Englishmen the right to have arms for self-defense and was interpreted to extend that right to carry outside the home. Id. at 29-30. Thus, NYSRPA contends that in America’s early days, people commonly understood they had a right to carry weapons with them in public. Id. at 32. Additionally, NYSRPA asserts that early courts recognized the broad right to carry arms in public except for abusive reasons. Id. Indeed, NYSRPA points out that historical prohibitions on carrying concealed weapons were allowed only if the right to bear arms was not impeded, say, by continuing to allow openly carried weapons. Id. at 32-34.
NYSRPA further argues that even if some previous laws unduly restricted the right to carry a firearm outside the home, the Supreme Court’s recent decision in District of Columbia v. Heller clarified that “all Americans” have the right “to possess and carry weapons in case of confrontation.” Id. at 46. NYSRPA also points out that in McDonald v. City of Chicago, the Supreme Court clarified that “individual self-defense is ‘the central component’ of the Second Amendment right.” Id. at 38. Thus, NYSRPA notes that, in Heller, the Supreme Court specifically stated that restrictions on firearms in certain places are acceptable. Id. That judgment, argues NYSRPA, would be irrelevant if the Second Amendment did not guarantee the right to carry weapons outside the home for self-defense, which is what members of NYSRPA seek to do here. Id.
Respondents Kevin P. Bruen et al. (“Bruen”) agree that the Second Amendment guarantees the right to both possess and carry firearms. Brief for Respondents, Kevin P. Bruen et al. at 19. Bruen argues, however, that this right is not unlimited. Id. Bruen asserts that NYSRPA incorrectly stated that historical laws only restricted carrying weapons for abusive or terrorizing reasons. Id. at 22. Instead, argues Bruen, historical laws allowed people to carry weapons only where and when doing so would not create a suspicion of violence or disturbance. Id. Bruen further asserts that carrying firearms in fairs and markets was commonly understood to create a suspicion of disturbance or violence and therefore firearms were often banned in these places. Id.
Bruen contends that Heller did not hold that people have an unlimited right to carry arms for self-defense. Id. at 20-21. Indeed, Bruen asserts that people only have the right to defend themselves with deadly force in certain situations. Id. at 25. Bruen argues that historically, people could only use self-defense when law enforcement was not around, typically in rural areas. Id. Bruen states that in public areas such as towns, people had a duty to seek help from the law before resorting to self-defense. Id. Bruen points to historic narrow public carry laws to support this argument and show that the right to carry arms has always been limited. Id. at 25-26.
NEW YORK’S CONCEALED CARRY LAW
NYSRPA asserts that Second Amendment protections should extend to all typical law-abiding citizens. Brief for Petitioner at 41. NYSRPA argues that New York’s law is thus incompatible with the Second Amendment because it severely restricts the rights of typical Americans to carry guns outside their homes. Id. at 40-41. NYSRPA contends that the “proper cause” standard of the New York law is so strict that only people who can demonstrate unique circumstances are allowed to have guns outside their home. Id. NYSRPA argues that the New York law is therefore like the law struck down in Heller because, under the proper cause standard, most people are “totally ban[ned]” from carrying guns. Id.
NYSRPA further argues that officers have too much discretion to deny concealed carry licenses. Id. at 42. NYSRPA asserts that this discretion turns the right to bear arms into a privilege because rights are designed to protect individuals from government, and the highly discretionary licensing scheme does not adequately do so. Id. Furthermore, NYSRPA argues that the law may be applied discriminatorily since the law was originally passed to prevent immigrants from carrying arms, and that today, celebrities and well-connected individuals can get licenses much easier than the typical individual. Id. at 42-43. NYSRPA concludes that because the law is discretionary, Section 400.00 does not sufficiently protect an individual’s right to bear arms for self-defense and severely limits the number of people who can carry guns, in violation of Second Amendment rights. Id. at 43–44.
Bruen contends that the New York law’s “proper cause” requirement is reasonable within legislative context and therefore does not violate the Second Amendment. Brief for Respondent at 32. Bruen argues that the law, which simply restricts having firearms in places “frequented by the public,” is less restrictive than other acceptable gun-regulation laws, which prohibited firearms anywhere “people have typically congregated.” Id. Bruen concludes that the law is therefore within constitutional limits and merely seeks to protect “sensitive places” which, as Heller indicated, is acceptable. Id. at 34. Bruen asserts that NYSRPA’s position, concerning citizens being allowed to carry firearms wherever the need for self-defense may arise, would eliminate the possibility of restrictions in ‘sensitive places’ that has been recognized as valid. Id. at 35-36.
Bruen also asserts that the law is not unduly discretionary. Id. at 29. Indeed, Bruen argues that the licensing officials’ discretion in handing out licenses is no different than the way officials have executed laws for hundreds of years. Id. Bruen notes unlike NYSRPA’s contention, there is no evidence that New York originally passed its gun law to disarm immigrants. Id. at 30. Instead, Bruen contends that NYSRPA cannot bring a valid claim speculating that people may be selectively disarmed in the future, because NYSRPA is not part of a protected class and never alleged that they were discriminated against. Id. at 31. Finally, Bruen points out that the denial decisions are reviewable and that the license application process allows applicants to submit more evidence if they are originally denied a license. Id.
APPLYING THE CORRECT STANDARD OF REVIEW
Finally, NYSRPA argues that the Second Circuit applied the incorrect standard of review to the New York law. Brief for Petitioners at 47. NYSRPA asserts that the Second Amendment right to bear arms is a core enumerated right; therefore, laws restricting the right should be subject to strict scrutiny. Id. NYSRPA contends that the Second Circuit erred when it stated that the right to carry arms was not core to the Second Amendment because the decision created an unacceptable hierarchy of constitutionally protected rights. Id. at 45. NYSRPA further asserts that the Second Circuit incorrectly interpreted Heller when determining its standard of review because Heller clearly stated that both the right to have and the right to bear arms were equally guaranteed by the Second Amendment. Id. at 46.
NYSRPA argues that the court wrongly applied a loose form of intermediate scrutiny and gave too much deference to the legislature. Id. NYSRPA asserts that, at a minimum, the court should subject the law to “exacting scrutiny.” Id. Instead, NYSRPA argues that the law is not narrowly tailored to meet the government’s important interest. Id. Additionally, NYSRPA contends that even if the government has an important interest, the law is too broad because it prevents typical, law-abiding citizens from bearing arms. Id. at 47-48. NYSRPA concludes that the government did not make the necessary effort to avoid overburdening protected rights; thus, the law should be struck down using the correct standard of review. Id. at 48.
Bruen responds that the court’s decision in Heller implied that strict scrutiny does not apply to the Second Amendment because that decision listed a number of presumptively lawful restrictions on carrying arms. Brief for Respondent at 38. Bruen points out that previous Supreme Court decisions acknowledge states’ authority to be flexible creating gun laws. Id. Thus, Bruen concludes that strict scrutiny review is incompatible with this discretion because strict scrutiny removes this flexibility by requiring a legislature to produce the least restrictive means to achieve its end. Id.
Bruen further argues that intermediate scrutiny is the correct form of review and claims that the New York law meets this standard. Id. Bruen notes that a law “must be substantially related to an important governmental objective” to survive intermediate scrutiny review. Id. at 39. Bruen argues that the New York law passes this test because it is a time, place, and manner restriction that allows license holders to have guns for certain reasons, while only placing general restrictions on the carrying of guns in crowded public areas. Id.
PUBLIC SAFETY CONSIDERATIONS
In support of NYSRPA, Twenty-Six States (“the States”) argue that non-discretionary, or “shall-issue,” concealed carry laws are statistically proven to reduce violent crime. Brief of Amici Curiae Arizona et al., in Support of Petitioners at 12. To demonstrate this assertion, the States point to Arizona’s murder rate which nearly halved in the twenty-two years after the state government implemented shall-issue concealed carry laws. Id. at 13. Further, the Crime Prevention Research Center (“CPRC”) contends that concealed carry permit holders are overwhelmingly law-abiding; therefore, increasing issue rates would not increase violent crime. Brief of Amicus Curiae Crime Prevention Research Center, in Support of Petitioners at 5.
Further in support of NYSPRA, William English argues that many arguments against shall-issue permitting laws rely on unsound science. Brief of Amici Curiae William English, Ph.D., et al., in Support of Petitioners at 12–13. Specifically, English attacks the “Donohue Study,” cited by Respondents’ amici for the proposition that shall-issue permitting laws increase violent crime. Id. He contends that the study was conducted over an arbitrarily short timeframe, improperly excluded Washington, D.C., and relied too heavily on anecdotal evidence. Id. at 23–24, 29. Thus, English concludes that the Donohue Study did not sufficiently justify its conclusion that shall-issue permitting laws increase violence. Id.
In response, the American Bar Association (“ABA”), in support of Bruen, counters that shall-issue regimes may not adequately protect public safety. Brief of Amicus Curiae American Bar Association, in Support of Respondents at 19. The ABA supports this claim by arguing that shall-issue regimes lead to increased levels of concealed carry, and the proliferation of concealed weapons often escalates situation from nonviolent to violent while also increasing the risk of weapons falling into the possession of criminals. Id. at 20. The ABA also points to statistics linking shall-issue regimes with increased levels of gun violence. Id. at 21. Chicago and Eleven Other Cities add that cities with historically high levels of gun violence rely on discretionary permitting laws, like New York’s, to combat street violence. Brief of Amici Curiae City of Chicago et al., in Support of Respondents at 20. They add that with violence rising as a result of the COVID-19 pandemic, local governments need these laws more than ever. Id.
Finally, The National Coalition Against Domestic Violence ("NCADV"), in support of Bruen, suggests that shall-issue permitting regimes specifically increase the risk of domestic violence. Brief of Amici Curiae The National Coalition Against Domestic Violence et al., in Support of Respondents at 8. According to NCADV, domestic violence often becomes lethal when one partner has access to a firearm. Id. at 8–9. They therefore conclude that discretionary permitting regimes that account for an applicant’s history of domestic violence are necessary to minimize the risk of such deadly escalation. Id. at 18.
DISCRIMINATORY IMPACT OF DISCRETIONARY PERMITTING LAWS
National African American Gun Association (“NAAGA”), in support of NYSRPA, contends that discretionary concealed carry permitting regimes were historically used to further Jim Crowe laws and bar Black Americans from enjoying the same right to bear arms as white Americans. Brief of Amicus Curiae National African American Gun Association, in Support of Petitioners at 4, 27. According to NAAGA, even if the New York licensing law is not currently being applied to discriminate against African Americans, the law does discriminate against those the government deems to not have good cause. Id. at 34. Bronx Defenders additionally adds that discretionary concealed carry laws may in fact have a discriminatory impact on minorities because prosecutors disproportionately prosecute minorities for violations of such laws. Brief of Amici Curiae Bronx Defenders, in Support of Petitioners at 14. They note that minorities, especially Black and Latino men, are convicted of felony gun possession at a much higher rate than white people and that in many of these cases, the accused’s conduct would not have been a crime under a shall-issue permitting regime. Id. at 16.
NAACP Legal Defense and Educational Fund (“NAACP”), in support of Bruen, counters that discretionary concealed carry laws are necessary to protect minority communities against discriminatory hate crimes. Brief of Amici Curiae NAACP et al., in Support of Respondents at 19. Citing to high-profile cases such as the murders of Trayvon Martin and Markeis McGlockton, NAACP argues that concealed carry often leads to anti-Black hate crimes, and therefore discretionary permitting laws are necessary to prevent such tragedies from reoccurring. Id. at 20–21, 23. Further, addressing the discrimination concerns raised by Amici for the Petitioner, the NAACP contends that courts should more liberally allow constitutional challenges to discretionary permitting laws applied in a discriminatory manner. Id. at 25. Building off the argument that shall-issue concealed carry regimes lead to higher levels of gun violence, Amnesty International USA (“Amnesty”) argues that the discriminatory impact of a constitutional prohibition on discretionary permitting laws would violate international law. Brief of Amici Curiae Amnesty International USA et al., in Support of Respondents at 14. Amnesty notes that the United States is bound by the International Covenant on Civil and Political Rights treaty to guarantee its citizens equal protection of the law and argues that barring discretionary permitting laws—thereby further increasing violence in minority communities—violates this guarantee. Id. at 15.
- Jennifer Mascia, The Supreme Court’s Next Big Gun Case, Explained, The Trace (May 18, 2021)
- Ilya Shapiro, Trevor Burrus, & Spencer Davenport, New York State Rifle & Pistol Association v. Bruen, Cato Institute (July 20, 2021)
- Katherine Fung, New York Unveils Gun Violence Memorial as SCOTUS Prepares to Take Up Second Amendment Case, Newsweek (Oct. 5, 2021)
- Ariane de Vogue & Devan Cole, Supreme Court Agrees to Take Up Major Second Amendment Case, CNN (Apr. 26, 2021)