In collaboration with the New York affiliate of the NRA – the New York State Rifle & Pistol Association (NYSPRA) – two individuals challenged New York’s law requiring individuals to show “proper cause” to define the scope of a permit to carry a concealed handgun in public spaces. The Second Circuit Court of Appeals upheld this law following an identical challenge in 2012 and the majority of other federal Courts of Appeals found similar “good cause” restrictions consistent with the Second Amendment following the Supreme Court’s decision in District of Columbia v. Heller.
Although the Petitioners in this case mischaracterized the law as a complete ban on ordinary citizens carrying handguns for self-defense, the Petitioners were granted licenses to carry handguns for hunting, target shooting, and in unpopulated areas for self-defense. One of the Petitioner’s licenses allowed him to carry a handgun for self-defense while commuting to and from work. The question presented to the Supreme Court was whether the denial of Petitioners’ request for wholly unrestricted concealed-carry licenses for self-defense violated their Second Amendment rights.
In June 2022, a conservative supermajority in the Supreme Court issued a decision in Bruen, finding that there is a constitutional right to carry a handgun outside the home for self-defense. The ruling overturned a New York State law that had stood for more than a hundred years and which has deep historical roots going back to the founding days of the nation.
Since 2008, courts have applied a two-part test to gun regulations under the decision issued in District of Columbia v. Heller. First, courts asked whether or not the regulation posed a burden to the conduct protected by the Second Amendment’s original scope. If not, it is constitutional. If it does burden such conduct, courts then ask if the regulation burdens the “core” of the right – which has been understood as the individual right to bear arms for self-defense in the home since Heller. If yes, the court asks whether the regulation is “narrowly tailored to achieve a compelling governmental interest.” If it does, the law is constitutional. Fourteen years later, the Supreme Court created a new constitutional test for deciding Second Amendment challenges. That test, now referred to as the Bruen test, says that when a law affects Second Amendment rights, the court must look to the history and tradition of firearm regulation in the United States to determine whether the law is constitutional. The Supreme Court said that modern firearms do not need a “historical twin” to be constitutional, but there must be a historical law that is “relevantly similar,” determined in part by why the laws were passed and how they are applied. Importantly, this new test ignores life-saving benefits of a law irrelevant to its constitutionality, which goes beyond any test governing any right.
Justice Thomas’ majority opinion rejects the view of historians across the nation that there was a long tradition of greatly restricting public carrying. Thomas’ finding that laws outlawing public gun carrying were “outliers” is not representative of the actual tradition.Further, the Court admittedly picks and chooses which history to consult. What they constitute as “history” is being pushed further and further into the past – to the point of ratification of the Second Amendment, over 230 years ago, and not much more into the future.
Bruen does not recognize the need for gun safety laws in the interest of public safety as criteria to be considered by the courts.
We argue that Americans’ Second Amendment rights must not infringe on the right of every person to live — which necessarily includes the right not to be unlawfully shot
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