The most important gun rights case in a decade is happening now
In early November, the U.S. Supreme Court heard oral argument in what is shaping up to be the most significant Second Amendment case since D.C. v. Heller and McDonald v. Chicago were decided in 2008 and 2010, respectively.
The case, New York State Rifle & Pistol Association v. Bruen, challenges New York state’s effective ban on the right of individuals to possess and carry firearms in public.
New York generally prohibits carrying a firearm in public—both openly and concealed. An individual can only carry a firearm concealed if they apply for and receive a license issued by the state.
Yet, in New York, a concealed carry license is incredibly difficult to get.
To start, a state licensing officer will only issue a concealed carry permit if you meet a lengthy list of criteria. But New York is also what’s known as a “may issue” state—meaning the state adds an additional barrier to acquiring a permit.
In New York, a licensing officer will only issue a concealed carry license to an applicant “when proper cause exists for the issuance thereof.”
Contrast this to “shall issue” states. In “shall issue” states, licensing officers are required to issue a concealed carry license to any applicant who is not specifically prohibited from having one.
As you can imagine, New York’s discretionary consideration makes it all but impossible for law-abiding citizens to receive a permit to carry a concealed firearm in the state. The state places an unfair burden on an applicant. Namely, to “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”
And, unsurprisingly, New York officials interpret this arbitrary standard to exclude almost everyone— including those legitimately concerned for their personal safety.
Worse, New York is far from alone in this unconstitutional infringement on gun rights. Seven other states apply this same arbitrary distinction— effectively denying the right to bear arms for all but a privileged few in states across our nation.
Two individuals joined with New York State Rifle & Pistol Association to bring this challenge to New York’s unconstitutional carry ban. One of them is Robert Nash, who applied for a concealed carry license after a string of robberies in his neighborhood. He even completed an advanced safety course before applying.
Meanwhile, Brendan Koch applied for a concealed carry license for the general purpose of self-defense, citing his broad experience and training in gun safety. Both were denied for supposedly lacking “proper cause.”
So, at a base level, this case presents the Supreme Court with a great opportunity. The Justices have the chance to firmly establish that a city or state’s arbitrary definition of “special need” cannot overrule a law-abiding citizen’s right to carry a firearm in public.
But this case means so much more for gun rights across the nation.
This case presents the Supreme Court with the historic opportunity to firmly establish the appropriate test for lower courts to evaluate Second Amendment challenges.
In 2008, when the Supreme Court decided the landmark case of D.C. v. Heller, it set forth a new standard for reviewing Second Amendment cases. It was a standard based on the Constitution’s original public meaning (also known as the text, history, and tradition test). The Supreme Court reiterated that test in McDonald v. Chicago just two years later.
But since then, nearly every circuit court in the nation has failed to appropriately apply the test the Supreme Court established in Heller and McDonald.
Instead, the circuits take a deeply flawed, two-step approach to determine whether the challenged law implicates a “core” Second Amendment-protected right. And then, if it does, to balance that right against the state’s or city’s “interests.”
The Supreme Court refuted that approach in Heller, but circuit courts across the country have consistently ignored the Supreme Court’s charge.
And now, the Supreme Court has the opportunity to address this issue.
Oral argument uncovered two key points in how this case will likely be decided.
First, not a single party before the Court argued that there was not a protected right to bear arms outside the home. This is a point that the Supreme Court implied in Heller but has not explicitly stated. Many anti-gun advocates have argued that the right doesn’t truly exist in public, and yet the parties seemed to concede that point here.
Second, the Court (and indeed the advocates) were heavily focused on the text, history, and tradition test. While they did not all agree on how to apply that test, it was clear that Originalism, and the original public meaning of the Second Amendment, were at the forefront of the Court’s inquiry.
The outcome remains to be seen. In major cases like this, the Court usually waits until the end of the term to issue an opinion—meaning we may have to wait until May or June 2022 to know what the Court thinks in this case.
But I have high hopes! It seems very promising that the Supreme Court will vindicate the right to bear arms in public, will strike down New York’s discretionary “proper cause” test, and will firmly establish the text, history, and tradition test as the appropriate standard for evaluating Second Amendment challenges!