The Supreme Court’s 6-3 ruling Thursday on gun rights boils down to this: The Second Amendment doesn’t disappear when you walk out your front door. Stated that way, it sounds obvious, but many appeals judges have disagreed. For a frustrating decade, the Supreme Court was too gun-shy to set them straight, but Justice
majority opinion was worth the wait.
New York State Rifle and Pistol Association v. Bruen challenged the Empire State’s regulations on carrying a firearm in public. Open carry in New York is banned. With certain exceptions, such as for judges, getting a permit to carry a handgun that’s concealed requires demonstrating “proper cause.” That has been interpreted to mean “a special need” for self-defense, beyond that of “the general community or of persons engaged in the same profession.”
In other words, shopkeepers who must carry cash through high-crime neighborhoods are out of luck. But as Justice Thomas points out, the Constitution protects a right not only to “keep” but also to “bear” arms. “Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table,” he writes. “To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.”
This does not mean urban America will soon resemble the Wild West. Forty-three states, Justice Thomas says, already have “shall issue” regimes, meaning carry permits are available to everyone who meets objective criteria. That process can be rigorous and might include fingerprinting, firearms training, background checks, and so forth. A concurring opinion by Justice
joined by Chief Justice
stresses that the Court is not calling such rules into question.
What’s unconstitutional is that six states—New York, New Jersey, Maryland, Massachusetts, California and Hawaii—offer residents no clear path to carry a gun to defend themselves. As Justice Thomas says: “The Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Those states can still regulate carry permits, but they can’t deny such permits to law-abiding citizens.
This is a landmark holding. In Heller (2008) the Court recognized the Second Amendment as an individual right. Then for a decade it stood by as appeals courts upheld gun restrictions that eroded Heller. Lower-court judges, Justice Thomas says, err when they try to balance state interests in gun laws against the burden on the Second Amendment. This forces judges to make empirical judgments, and he says it’s “inconsistent with Heller’s historical approach and its rejection of means-end scrutiny.”
To uphold a gun restriction, Justice Thomas says, the government must show that it is “consistent with the Nation’s historical tradition of firearm regulation.” He then surveys the history of gun limitations before and after the Founding. “None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement,” Justice Thomas concludes, “because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.”
He acknowledges a few counterexamples but says the weight of the evidence is against New York. This is the right originalist analysis: What did the Second Amendment mean to the people who passed it?
This rejection of a balancing test for regulations that trespass on the “core” of a constitutional right ought to discipline lower-court judges. And it has implications for other rights, not least campaign-finance restrictions that run afoul of the First Amendment.
Dissenting for the three liberals, Justice
recounts grim statistics. “In 2020, 45,222 Americans were killed by firearms,” he says. In his view, the majority “refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling.” Yet officials are far from shackled. They can strengthen background checks, as the U.S. Senate is poised to do. States can add red-flag laws. Prosecutors can make the effort to go after straw purchasers.
How high can the regulatory bar be raised for a carry permit? The Supreme Court might need to clarify if states like New York respond to Bruen by demanding a $5,000 fee and 1,000 hours of training. For now it’s enough that six Justices agree: States can’t tell Americans who fear for their safety that there’s no legal way they can carry a weapon for defense.
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