Landmark Second Amendment Case Expands Gun Rights ...

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The Supreme Court released its opinion in a landmark gun rights case, New York State Rifle & Pistol Co. v. Bruen. In a 6-3 opinion by Justice Clarence Thomas, SCOTUS held that New York’s law requiring anyone seeking a concealed carry license to demonstrate they had “proper cause” for the license violated the SecondAmendment rights of law-abiding citizens. MSNBC’s Ali Velshi and President and CEO Jeffrey Rosen unpack what the decision means for gun rights and gun control measures and future legislation including assault weapon bans.
Key Excerpts from New York State Rifle & Pistol Association v. Bruen (2022)
In New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court considered the constitutionality of New York's "may-issue" concealed carry regime, which requires "proper cause," in other words a special need, for a concealed carry license. In a 6-3 decision, the Court struck down the regime as unconstitutional under the Second Amendment.
Below are some of the key excerpts from the majority and dissenting opinions. You can read the full opinions here.
[1] In [District of Columbia v. Heller (2008)], and [McDonald v. Chicago (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…
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 [2] 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…
[18] New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller: “handgun violence,” primarily in “urban area[s].”… Following the course charted by Heller, we will consider whether “histor­ical precedent” from before, during, and even after the founding evinces a comparable tradition of regulation… And, as we explain below, we find no such tradition in the historical materials…
[19] Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all [20] analogical reasoning, determining whether a historical reg­ulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two reg­ulations are “relevantly similar.”… For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.”… They are not relevantly similar if the applicable metric is “things you can wear.”
While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense… Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are “‘central’” considerations when engaging in an analogical inquiry…
[21] To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check… [A]nalogical reasoning requires only that the gov­ernment identify a well-established and representative his­torical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional mus­ter…
[25] Respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. We categorize these pe­riods as follows: (1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) ante­bellum America; (4) Reconstruction; and (5) the late-19thand early-20th centuries…
[29] Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions govern­ing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late­ 19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly [30] prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition lim­iting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to iden­tify an American tradition justifying New York’s proper-cause requirement. Under Heller’s text-and-history stand­ard, the proper-cause requirement is therefore unconstitu­tional…
[62] Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public.
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]. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers [63] 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.
Concurring Opinion by Justice Samuel Alito
Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or [McDonald] v. Chicago, about re­strictions that may be imposed on the possession or carry­ing of guns.
Concurring Opinion by Justice Brett Kavanaugh
[1] I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.
First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States…
[2] Those shall-issue regimes may require a li­cense applicant to undergo fingerprinting, a background check, a mental health records check, and training in fire­arms handling and in laws regarding the use of force, among other possible requirements… Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discre­tion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitu­tionally permissible, subject of course to an as-applied chal­lenge if a shall-issue licensing regime does not operate in that manner in practice…
[3]Second, as Heller and McDonald established and the Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check.”… Properly interpreted, the Second Amendment allows a “variety” of gun regulations.
[1] In 2020, 45,222 Americans were killed by firearms… Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day… Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents… 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…
[9] The question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes. The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence that I have just described. I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them…
[21] Although I agree that history can often be a useful tool in determining the meaning and scope of constitutional provisions, I believe the Court’s near-exclusive reliance on that single tool today goes much too far…
[25] The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical… [26] Judges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians. Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.
The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?…
[31] At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any “representative historical analogue” and make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security…
[I] fear that history will be an especially inade­quate [32] tool when it comes to modern cases presenting modern problems…
[33] I hope—fervently—that future courts will be able to identify historical analogues supporting the validity of regulations that address new technologies, I fear that it will often prove difficult to identify analogous technological and social problems from Medieval England, the founding era, or the time period in which the Fourteenth Amendment was ratified. Laws addressing repeating crossbows, launcegays, dirks, dagges, skeines, stilladers, and other an­cient weapons will be of little help to courts confronting modern problems. And as technological progress pushes [34] our society ever further beyond the bounds of the Framers’ imaginations, attempts at “analogical reasoning” will be­come increasingly tortured…
The historical evidence reveals a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particu­lar. The Court spends more than half of its opinion trying to discredit this tradition. But, in my view, the robust evi­dence of such a tradition cannot be so easily explained away. Laws regulating the public carriage of weapons ex­isted in England as early as the 13th century and on this Continent since before the founding. Similar laws re­mained on the books through the ratifications of the Second and Fourteenth Amendments through to the present day. Many of those historical regulations imposed significantly stricter restrictions on public carriage than New York’s li­censing requirements do today…
[48] [I]t is worth noting that the law the Court strikes down today is well over 100 years old, having been enacted in 1911 and amended to substantially its present form in 1913. See supra, at 12. That alone gives it a longer historical pedigree than at least three of the four types of firearms regulations that Heller identified as “presumptively lawful.”…
[49] The historical examples of regulations similar to New York’s licensing regime are legion. Closely analogous English laws were enacted beginning in the 13th century, and similar American regulations were passed during the colonial period, the founding era, the 19th century, and the 20th century. Not all of these laws were identical to New York’s, but that is inevitable in an analysis that demands examination of seven centuries of history. At a minimum, the laws I have recounted resembled New York’s law, similarly restricting the right to publicly carry weapons and serving roughly similar purposes. That is all that the Court’s test, which allows and even encourages “analogical reasoning,” purports to require.