The stakes in one of the largest Second Amendment cases in US history are high.
The Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, expected by mid-2022, could declare a New York state restriction on the carrying of concealed handguns in public places unconstitutional.
Such a move in favor of plaintiffs, including a subsidiary of the National Rifle Association, could ease gun regulations in many parts of the country.
In my opinion, as a Second Amendment scholar, this case is also remarkable as the way the tribunal comes to its conclusion could affect the Second Amendment analysis of all gun laws in the future.
The court will hear oral argument on November 3.
Long on the books
In 1911, after an increase in homicides, New York instituted a handgun licensing system. In 1913, the permit system was changed to deal with concealed transport.
For more than a century, a person seeking to carry a concealed handgun for self-defense in the state had to file a license application showing they had what the law calls “good cause.”
To obtain an unrestricted license, applicants must “demonstrate a particular need for self-protection distinct from that of the community at large”, for example by showing that they are being harassed.
Lawyers in New York are championing this restrictive approach to issuing concealed port permits as an effective way to reduce gun violence. In 2020, there were 43,592 gun deaths in the United States, including suicides and homicides. There are also over 80,000 non-fatal firearm injuries each year.
New York City has some of the toughest gun laws in the country, and its homicide rate is below the national average.
Robert Nash and Brandon Koch were denied unrestricted concealed transport permits because a judge determined they did not meet New York’s appropriate cause standard.
Instead, Koch was licensed to carry a concealed handgun for self-defense while traveling to and from work. The applicants’ two licenses also allow them to carry concealed handguns for hunting and target practice, and for self-defense in areas not “frequented by the general public”.
Along with the New York affiliate of the NRA, Nash and Koch argue that these limitations on their ability to carry a concealed handgun violate their right to bear arms. They claim a broad view of the right to carry a handgun, which extends virtually “anytime and anywhere” where the need for self-defense may arise.
New York law challenges this view of the Second Amendment.
The muted effects of the Heller decision
In considering Bruen, the Supreme Court will focus on the significance of an important precedent: District of Columbia v. Heller.
When the Supreme Court rendered its Heller decision in 2008, a 5: 4 majority overturned Washington DC’s ban on handguns in the home. The court ruled for the first time that the Second Amendment protects an individual’s right to own and bear arms.
Writing on behalf of the majority, the late Justice Antonin Scalia said that the “central component” of the Second Amendment was not a “well-regulated militia”, but rather “the inherent right to self-defense”.
But the majority decision included caveats that lower court judges have since relied on to enforce gun laws.
“The right guaranteed by the Second Amendment is not unlimited” and is “not a right to keep and carry a weapon in any way and for any purpose,” Scalia wrote. His opinion even contained a list of “presumed legal regulatory measures,” such as restrictions on the possession of firearms by criminals or bans on carrying them in sensitive places like schools and government buildings.
The NRA and other gun rights advocates bristled with general acceptance by judges of the constitutionality of laws restricting the use of firearms.
This discontent culminated with Bruen.
More states allow concealed handguns
By 1980, most Americans lived in places that either prohibited concealed transport or had a New York-style “good cause” clearance regime. A push by the NRA in the late 1980s loosened public transport laws across the country.
In states where gun rights advocates have relatively little clout, they hope Bruen will accomplish in court what they have failed to accomplish through the political process.
Today, New York is one of eight states requiring that people seeking to carry concealed handguns have a “good” or “good” cause. California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island have similar laws in effect.
If the court overturns New York’s law, Americans in those states could expect an increase in the number of people legally carrying handguns in their communities. Anyone who wishes to carry a concealed handgun would have an easier time doing so.
A “test of text, history and tradition”
Bruen could also be a turning point in how judges assess all Second Amendment cases – whether it’s assault weapons, tasers, or possession offenses.
So far, judges have generally assessed whether such restrictions are justified by current public safety concerns.
Many gun rights advocates are calling on the Supreme Court to reject this approach. Instead, they want judges to decide cases on the sole basis of history and tradition, unless judicial interpretation of the text of the Second Amendment fixes the problem. This is called the “text, history and tradition” test.
Justice Brett Kavanaugh is credited with formulating this test for the first time in a dissent he issued prior to his ascension to the Supreme Court.
Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett all adopted similar judicial philosophies to some extent.
But there is a catch: Firearms have always been regulated in America.
New York’s regulations have been in place for over a century and have a legacy that stretches back even further.
If the judges abandon a conventional approach to testing text, history and tradition, I would expect another round of lawsuits over gun laws that have already survived previous court challenges. Gun rights advocates would likely, for example, sue for restrictions on large capacity magazines or requirements for safe storage in places where these issues have already been addressed.
This litigation would call on judges to rule on the sole basis of a difficult historical exercise: to compare modern laws dealing with modern weapons and contemporary armed violence to the laws, practices and weapons of a bygone era.
Trump judges could tip the scales
The court has three main options.
He could enforce New York law. It could bring him down. Or he could find common ground, such as issuing a narrow ruling that raises big questions about gun restrictions on the road.
Trump spoke with the NRA before appointing Gorsuch, Kavanaugh and Coney Barrett – all of whom received the armed group’s blessing. Chief Justice John Roberts has already steered his colleagues towards narrow decisions. But he will have little influence if the three judges appointed by former President Donald Trump join forces with Samuel Alito and Clarence Thomas, the court’s other two conservatives, on a far-reaching majority opinion.
The decision will underline the importance of their presence on the ground.
This article is republished from The Conversation under a Creative Commons license. Read the original article.