Now, any governmental body seeking to enforce a firearms regulation bears the burden of establishing that the regulation is consistent with the historic tradition of firearms regulation in the United States.
On June 23, 2022, the Supreme Court of the United States struck down New York’s restrictive concealed carry licensing regime as unconstitutional under the Second Amendment, invalidating licensing regimes in an additional six jurisdictions. Writing for the majority in New York State Rifle & Pistol Assn., Inc. v. Bruen, __ U.S. __ (2022), Justice Clarence Thomas stated that the “constitutional right to bear arms in public for self-defense is not a ‘second class right,’” and unequivocally held that law-abiding citizens have a right to carry firearms in public for self-defense. In so doing, the Court rejected the long-standing practice of balancing the text and history of the Second Amendment with governmental interest, known as “means-end” scrutiny. Now, any governmental body seeking to enforce a firearms regulation bears the burden of establishing that the regulation is consistent with the historic tradition of firearms regulation in the United States.
Bruen concerned the constitutionality of New York state’s firearms licensing regime. Under the pre-Bruen regime, an applicant in New York must have a license to own or carry a firearm. An applicant could obtain a “restricted” carry license, which allows carrying for hunting, target shooting and employment. But to carry generally for self-defense (an unrestricted license), the applicant must convince the licensing official that he or she has some special need over and above that of the general population. Licensing officials have nearly unfettered discretion to deny an unrestricted license in New York. Six other jurisdictions also have similar laws: New Jersey, Massachusetts, Maryland, Hawaii, California and the District of Columbia.
By contrast, 43 states have “shall-issue” regimes. Shall-issue states either require no license to carry concealed (so-called constitutional carry regimes) or limit the discretion of the licensing official to deny a license. Generally speaking, in shall-issue states that require licenses, if the applicant meets the threshold criteria, the official must issue the license.
The Court held “may-issue” regimes create an unconstitutional restriction on the right to carry firearms for self-defense. It is the first, clear statement by the Court recognizing the right of citizens to carry firearms in public. And while the opinion and two concurrences expressly state that the 43 shall-issue regimes are not affected, the opinion is significant in all jurisdictions. Crucially, it rejects any means-end or interest balancing analysis for firearms regulation, and rejects the idea that the Second Amendment is subject to less protection than other rights protected under the Constitution.
Means-end scrutiny is a standard of review that balances the right at issue with the governmental interest. In the years following the landmark Heller and McDonald cases, which recognized a right to maintain a firearm in the home for self-defense, many Courts of Appeals have coalesced around a two-step analysis of firearms regulation. The second step of the analysis employed means-end scrutiny to determine if a regulation was constitutional. Depending on whether the right at issue was a “core” right, the regulation would pass constitutional muster if the government could show the law was narrowly tailored to achieve a legitimate aim (strict scrutiny) or substantially related to the achievement of an important government interest (intermediate scrutiny).
The Court rejected this analysis. Justice Thomas’ forceful language makes clear that the majority believes the Second Amendment has been lowered to the status of a “second class right,” and seeks to correct this. The lengthy opinion is interspersed with comparisons to the First and Sixth Amendments. It ultimately harkens back to the plain text of the Second Amendment, and firmly roots the analysis of firearms regulations in history. Specifically, the court held:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify a regulation… the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.
Following a lengthy historical analysis, the Court concluded that New York’s licensing regime is not consistent with the historical tradition of public carry as a constitutionally protected right.
This opinion does not mean that authorities cannot regulate gun licenses, restrict who may have a gun, or impose time and place restrictions. But it does likely mean that public carry licenses must be made available to the general public absent some disqualifying factor, and forbids officials from frustrating such laws by making it too difficult or expensive to obtain such a license. It also alters the manner in which courts may analyze gun regulations, and rejects the idea that gun regulations will be validated simply because a government expresses a governmental interest for the regulation. Over the next several months, the seven may-issue jurisdictions will need to revamp entire licensing regimes laws. Also expect to see litigation in shall-issue states challenging the process for obtaining licenses, who may be denied a license, and time and place restrictions.
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