Can a State Limit the Right for a Person to Carry a Firearm?

[T]he government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

New York State Rifle and Pistol Association, Inc. et. al., v. Bruen, Superintendent of New York State Police et. al.

No. 20 – 843 (2022)

United States Supreme Court

June 23, 2022

Recent U.S. Supreme Court Firearm Decisions

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.

New York State Requires a Special Need to Exercise the Second Amendment

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In forty-three 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.

Today’s licensing scheme largely tracks that of the early 1900s. It is a crime in New York to possess “any firearm” without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. See N. Y. Penal Law Ann. §§265.01–b (West 2017),

Meanwhile, possessing a loaded firearm outside one’s home or place of business without a license is a felony punishable by up to fifteen years in prison. §§265.03(3) (West 2017).

New York States Second Amendment Licensing Officer

AKA The Victim Creation Legislation

A license applicant who wants to possess a firearm at home (or in his place of business) must convince a “licensing officer”—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that “no good cause exists for the denial of the license.” §§400.00(1)(a)–(n) (West Cum. Supp. 2022). If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” §400.00(2)(f). To secure that license, the applicant must prove that “proper cause exists” to issue it. If an applicant cannot make that showing, he can receive only a “restricted” license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment.

What is Proper Cause?

No New York statute defines “proper cause.” But New York courts have held that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” In re Klenosky, 75 App. Div. 2d 793, (1980). This “special need” standard is demanding. For example, living or working in an area “‘noted for criminal activity’ ” does not suffice. In re Bernstein, 85 App. Div. 2d 574, (1981). Rather, New York courts generally require evidence “of particular threats, attacks or other extraordinary danger to personal safety.” In re Martinek, 294 App. Div. 2d 221, 222, (2002);

Brandon and Robert are Law Abiding Adult Citizens

As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York. Koch lives in Troy, while Nash lives in Averill Park. Petitioner New York State Rifle & Pistol Association, Inc., is a public-interest group organized to defend the Second Amendment rights of New Yorkers. Both Koch and Nash are members.

Mr. Nash Can Only have a Firearm to Hunt Animals not Protect Himself Against Predators

In 2014, Mr. Nash applied for an unrestricted license to carry a handgun in public. Mr. Nash did not claim any unique danger to his personal safety; he simply wanted to carry a handgun for self-defense. In early 2015, the State denied Mr. Nash’s application for an unrestricted license but granted him a restricted license for hunting and target shooting only. In late 2016, Nash asked a licensing officer to remove the re- strictions, citing a string of recent robberies in his neighborhood. After an informal hearing, the licensing officer denied the request. The officer reiterated that Mr. Nash’s existing license permitted him “to carry concealed for purposes of off road back country, outdoor activities similar to hunting,” such as “fishing, hiking & camping etc.” But, at the same time, the officer emphasized that the restrictions were “intended to prohibit [Nash] from carrying concealed in ANY LOCATION typically open to and frequented by the general public.”

Mr. Koch Can Only have a Firearm to Hunt Animals not Protect Himself Against Predators

Between 2008 and 2017, Mr. Koch was in the same position as Mr. Nash: He faced no special dangers, wanted a handgun for general self-defense, and had only a restricted license permitting him to carry a handgun outside the home for hunting and target shooting. In late 2017, Mr. Koch applied to a licensing officer to remove the restrictions on his license, citing his extensive experience in safely handling firearms. Like Nash’s application, Mr. Koch’s was denied, except that the officer permitted Koch to “carry to and from work.” 

Mr. Nash and Mr. Koch File Suit to Exercise the Second Amendment

Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State’s licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County. Petitioners sued respondents for declaratory and injunctive relief under Rev. Stat. 1979, 42 U. S. C. §1983, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted- license applications on the basis that they had failed to show “proper cause,” had failed to demonstrate a unique need for self-defense.

The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Court of Appeals’ prior decision in Kachalsky, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.”

U.S. Supreme Court Accepts the Case

We granted certiorari to decide whether New York’s denial of petitioners’ license applications violated the Constitution. 593 U. S. ___ (2021).

Established Case Law

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.

[T]he government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.

Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).

Lower Courts Two-Step Second Amendment Test

Since Heller and McDonald, the two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” E.g., Kanter v. Barr, 919 F. 3d 437, 441 (CA7 2019).

At the second step, courts often analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” Ibid. (inter- nal quotation marks omitted). The Courts of Appeals generally maintain “that the core Second Amendment right is limited to self-defense in the home.” Gould, 907 F. 3d, at 671.

One Step Too Many

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

The Historical Second Amendment Rear View Mirror

The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. 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. Fortunately, the Founders created a Constitution and a Second Amendment— “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.

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. As we stated in Heller and repeated in McDonald, “individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599). 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. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).

[T]he Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.

To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical 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.

Second Amendment Presumptively Guarantee

The Second Amendment’s plain text thus presumptively guarantees petitioners Mr. Koch and Mr. Nash a right to “bear” arms in public for self-defense.

The Second Amendment is not a Second Class Right

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 guaran- tees.” McDonald, 561 U. S., at 780. 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.

Conclusion

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.

Holding

We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Information for this article was obtained from New York State Rifle and Pistol Association, Inc. et. al., v. Bruen, Superintendent of New York State Police et. al. No. 20 – 843 (2022).

Note:  There were over forty-thousand words (!) in this decision.  Most were redacted for this article.  Much of the redaction focused on the legal history of the Second Amendment and legal cases that shaped it in our country’s history.  The omissions can be found in the full text of the case: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

New York State Rifle and Pistol Association, Inc. et. al., v. Bruen, Superintendent of New York State Police et. al. No. 20 – 843 (2022) was issued by the U.S. Supreme Court in a six to three decision and is binding throughout the United States.