IN NYSRPA v. BRUEN, THE SUPREME COURT UPHOLDS THE INDIVIDUAL’S

RIGHT TO KEEP AND BEAR FIREARMS BOTH INSIDE AND OUTSIDE THE

HOME AND REINVIGORATES THE SECOND AMENDMENT’S PROTECTION 

OF YOUR FUNDAMENTAL HUMAN RIGHT TO SELF-DEFENSE 

Fourteen years ago, in a majority opinion written by Justice Antonin Scalia, the Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment protects your right as an ordinary, law-abiding citizen, to possess a handgun in your home for self-defense.  Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that the Fourteenth Amendment extended that fundamental Second Amendment right to make it fully applicable to the states.    

In deliberate contravention of the Second and Fourteenth Amendment and the Supreme Court’s holdings in Heller and McDonald, at least six renegade, anti-gun states (New York, California, Hawaii, Maryland, Massachusetts, and New Jersey) have continued to implement what are known as “proper cause” licensing statutes.  These licensing schemes unconstitutionally require individual citizens to show some special need before the state will issue a license to carry a handgun in public for self-defense.[i]  Incredibly and shamefully, except in the District of Columbia, the constitutionality of all these “proper cause” schemes has been upheld by federal district courts and courts of appeals.[ii]  The lower courts have achieved this remarkable result by using a judicially-fabricated, easily-manipulated legal analysis which, as discussed below, has now been rejected by the Supreme Court.

New York state’s version of these licensing schemes has now been struck down by the Supreme Court in New York State Rifle and Pistol Association v. Bruen, No. 20-843, Slip Opinion (June 23, 2022).  The Court held in Bruen that the Second and Fourteenth Amendments also protect your fundamental right, as an ordinary, law-abiding citizen, to carry a handgun for self-defense outside the home.  (Slip Op. at 1.)  In so doing, the Court has put the states and Congress on notice that the Supreme Court’s disinterest in Second Amendment-based challenges to gun control legislation and its inability to formulate an analytical consensus has ended with a bang.  

The Court described the Second Amendment’s plain language as “an unqualified command”[iii] and consistent with the approach it took in Heller, the Court focused on the plain text of the Amendment and comparison of the challenged restriction to the nation’s historical tradition of firearms regulation.  (Id. at 8, 10-15.)  The Court held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”  (Id. at 8, 15.)  To justify a gun control law which seeks to restrict such constitutionally-protected conduct, “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.”  (Id. at 8.)  Only if a firearm regulation is consistent with that historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s protection.  (Id. at 8, 15.)  

The Court examined the plain text of the Second Amendment to see whether it protected the plaintiffs’ proposed course of conduct – i.e., carrying handguns publicly for self-defense.  The Court observed that nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.  In addition, the Court reiterated the point made in Heller, that the right to “bear arms” refers to the right to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.”  (Id. at 23, quoting Heller, 554 U.S. at 584.)  The Court further observed that this definition of “bear” naturally encompasses public carry.  (Id. at 23-24.)  The Court therefore concluded that the Second Amendment’s plain text presumptively guarantees the plaintiffs a right to bear arms in public for self-defense.  (Id. at 24.)  

The Court then reviewed the history submitted by the defendants to determine whether New York’s “proper cause” requirement is consistent with this nation’s historic tradition of firearm regulation.  (Id. at 25-62.)  The Court explained that it is taking this approach because “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”  (Id. at 25, quoting Heller, 554 U.S. at 634-35 (emphasis added in Bruen).)  Only if the defendants proved that New York’s “proper cause” requirement was consistent with or part of the nation’s historic tradition of firearm regulation could the defendants overcome the plain text of the Second Amendment and show that the right to keep and bear arms codified in the Second Amendment was not meant to protect the plaintiff’s proposed course of conduct.  (See id. at 25.)  

The Court found that, apart from a small number of late-19th century jurisdictions, the historical record compiled by the defendants does not demonstrate a tradition of broadly prohibiting the public carry of commonly-used firearms for self-defense.  In addition, it does not show any historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.  (Id. at 29-63.)  The Court therefore concluded that (i) the defendants failed to identify an American regulatory tradition indicating that the Second Amendment’s operative language, by its plain text, was not meant or understood to protect the right to keep and bear arms outside the home; and (ii) under the Court’s text-and-history standard, New York’s proper cause requirement is therefore unconstitutional.    (Id.) 

In explaining and applying the text-and-history standard used by the Court in Heller, Bruen also makes it absolutely clear that the lower courts can no longer apply their two-tier inquiry which utilizes the federal circuit courts of appeals’ “means-ends” tests.  (Id. at 8-15, 20 n. 7.)  As Justice Alito rightly observed in his concurring opinion, the circuit courts of appeals’ means-ends tests “place no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.”  (Alito Concurrence at 7.)  That is how and why those “means-ends” tests have been used repeatedly by lower court judges to uphold the states’ facially unconstitutional “proper cause” licensing schemes.  See Gould v. Morgan, 907 F.3d 659, 677 (1st Cir. 2018); Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012); Drake v. Filko, 724 F.3d 426, 440 (3d Cir. 2013); United States v. Masciandaro, 638 F.3d 458, 460 (4th Cir. 2011); and Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).

Using their two-tier analysis, the lower courts first determined whether a challenged gun control law regulated conduct which clearly falls outside the scope of the Second Amendment as it was originally understood.  If so, the gun control law was upheld without further inquiry.  (Slip Op. at 9.)  If the regulated activity was not categorically unprotected, the courts proceeded to a second step, which required them to identify which of three judicially-created means-ends tests (strict scrutiny, intermediate scrutiny, or rational basis review) was applicable.  (Id. at 9-10.)[iv]  If the applicable means-ends test was satisfied, the statute was deemed constitutional, no matter how contrary its gun control restrictions were to the plain text of the Second Amendment.  

The lower courts’ two-tier approach (with its imprecise and easily-manipulated means-end tests) almost always led to the same result – i.e., upholding the constitutionality of the gun control measure being scrutinized.  The lower courts’ intellectually-squishy means-ends approach was squarely rejected by the Court in Bruen and replaced by an exclusive focus on the Second Amendment’s plain text and a comparison of the challenged firearm regulation against the nation’s historic tradition of firearms regulation.  (Id. at 8-15, 16, 17, 20 n. 7.)  And the Court placed the burden squarely on the government to prove that the challenged firearm regulation is consistent with or part of the nation’s historic, traditional limits on the right to keep and bear arms.  (Id. at 10.)

In view of the Supreme Court’s stated purpose in Bruen, i.e., to restore fealty to the Constitution’s protection of the fundamental human right to use arms for self-defense (id. at 17), the Court’s reliance on the Second Amendment’s plain text and the nation’s history relating to firearms regulations is a vast improvement over the lower court’s means-ends analysis.  It is, as the Supreme Court politely concluded, far more “legitimate, and administratable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ [referring to the now-rejected means-ends analysis] especially given their ‘lack [of] expertise’ in the field.”  (Id. at 16, quoting McDonald, 561 U.S. at 790-91 (plurality opinion).)

The Court’s holdings in Bruen will undoubtedly distress and upset authoritarian politicians who would like to ban so-called “assault weapons,” not to mention those in states whose “proper cause” licensing schemes look like the New York scheme in Bruen.  Not surprisingly, the Governor of New York reportedly had a meltdown when she received news of the Supreme Court’s Bruen decision.  However, it is long past time that the Court restored law-abiding citizens’ constitutional right of self-defense outside the home, particularly in states like New York, California, and others which have de-funded their police forces, are experiencing an explosion in violent crime, and have hired George Soros-backed prosecutors who refuse to prosecute criminals.   Those states and their crime-ridden urban areas leave law-abiding citizens – particularly those living or working in dangerous places – with no practical option other than self-defense with a firearm, both inside and outside the home.  

It is not hard to imagine how New York and other states with “proper cause” licensing schemes will attempt to evade Bruen.  Watch for the quick and potentially widespread adoption of gun-free zone legislation which will prohibit the possession and carry of firearms in special or sensitive places such as airports, courthouses, schools, public parks, town squares, universities, sports stadiums, places of worship, taverns, etc. – turning those places into magnetic targets for mass shootings and creating a patchwork of gun-free zones in dense, urban areas which at times will be difficult or impossible to navigate/avoid.  That sort of legislation and perhaps assault weapon bans passed by hand-wringing state legislators in deep blue states are likely to provide the next battlegrounds in the culture war over gun control.

[i]  New York state’s licensing scheme made it a crime to possess “any firearm” without a license, whether inside or outside the home.  Possessing a loaded firearm outside the home or place of business without a license was a felony punishable by up to 15 years in prison.  (Slip Op. at 2-3.)  If you wanted a license to carry a firearm outside your home or place of business for self-defense, you had to prove to a “licensing officer” that “proper cause” existed to issue it.  (Id. at 3.)
 
No New York statute defined “proper cause,” but New York courts held that it required you to show “a special need for self-protection distinguishable from that of the general community.”  (Id.)  This was a demanding standard and just living or working in an area “noted for criminal activity” would not suffice.  (Id.)  Your only options to obtain a carry license were to bribe a willing licensing officer or try to present sufficient evidence of “particular threats, attacks or other extraordinary danger to personal safety.”  (Id.) 

[ii]  Compare Wrenn v. District of Columbia, 864 F.3d 650, 655-67 (D.C. Cir. 2017) with Gould v. Morgan, 907 F.3d 659, 677 (1st Cir. 2018); Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012); Drake v. Filko, 724 F.3d 426, 440 (3d Cir. 2013); United States v. Masciandaro, 638 F.3d 458, 460 (4th Cir. 2011); and Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).

[iii]  The Court was referring to the Second Amendment’s clear command in its operative clause that “the right of the people to keep and bear Arms shall not be infringed.”  (See id. at 8, 10-11.) 
 
[iv]  Rational basis review requires that the challenged law bear a rational link to a legitimate public interest and is very easily satisfied, but Heller declared rational basis review to be inappropriate for gun control laws.  Heller, 554 U.S. at 628 n. 27.
 
Post-Heller, intermediate scrutiny has often been used by anti-gun judges to uphold laws restricting the right to keep and bear arms.  It requires that the challenged law is intended to implement an important government interest and bears a substantial relationship to the law’s purpose.  In Bruen, the government requested application of this easily-manipulated test to New York’s proper cause licensing scheme.  (Bruen, Slip Op. at 10.)
 
If the challenged law burdens a “core” Second Amendment right, the lower courts have applied strict scrutiny, which requires that the challenged gun control law be narrowly tailored to accomplish a compelling public interest.  The lower courts have avoided application of strict scrutiny, which is the most demanding of the three means-ends tests, by construing the “core” rights protected by the Second Amendment too narrowly as being limited to self-defense in the home.  (Id. at 9.)