UNTIL FOURTEEN years ago, the Second Amendment was little more than a relic of America’s early republic. But in 2008 the Supreme Court decided that the “right to keep and bear arms” provides not only for the needs of “a well-regulated militia” (as the amendment reads) but for the liberty of individuals to keep firearms in their homes for self-defence. On June 23rd, in its long-awaited landmark ruling in New York State Rifle & Pistol Association v Bruen, the court expanded that right to include carrying a weapon outside one’s home.
For some justices, this day is long overdue. The right to bear arms “is apparently this court’s constitutional orphan”, Justice Clarence Thomas wrote in 2018. The Second Amendment has been neglected as a “second-class right”, Justice Samuel Alito lamented in 2010. Justices Amy Coney Barrett and Brett Kavanaugh, the two most recent additions to the court, wrote pro-gun opinions as appeals-court judges. Justice Kavanaugh’s dissent in 2011 argued that bans on semi-automatic weapons, among other gun-safety policies, are unconstitutional. In Bruen, these justices, plus Justice Neil Gorsuch and Chief Justice John Roberts, formed a 6-3 majority to bolster the Second Amendment right.
The target in Bruen is a 109-year-old law in New York that requires gun owners who want a concealed-carry licence to show “proper cause”. General fear of crime or skittishness are not good enough; applicants must justify the request by pointing to specific circumstances that make them vulnerable to violence. Retired police officers, people under protection orders and jurors in sensitive criminal cases, for example, may merit a concealed-carry licence. But ordinary citizens wishing to arm themselves while venturing outdoors have little chance, especially if they live in New York City.
In his majority opinion, Justice Clarence Thomas couched New York’s law as conferring more of a privilege than a right. “We know of no other constitutional right”, he wrote, “that an individual may exercise only after demonstrating to government officers some special need.” Such discriminatory treatment when doling out constitutional rights, he wrote, violates the Second Amendment. Justice Thomas’s opinion relied heavily on a particular sort of historical analysis. If a limit on gun possession is to pass constitutional muster, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms”. The bulk of his 63-page majority opinion is devoted to showing why New York’s law, despite dating back to 1905, does not comport with America’s history of gun regulation. In other words, it does not matter why a state wishes to restrict firearm access: a regulation is unconstitutional if it does not have a historical analogue.
Justice Stephen Breyer’s dissent (in which he was joined by his two liberal colleagues, Justices Elena Kagan and Sonia Sotomayor) offered a contrasting view on how to adjudicate the case. He argued that the court must begin from the premise that it is “constitutionally proper, indeed often necessary”, for judges to “consider the serious dangers and consequences of gun violence that lead states to regulate firearms”.
Those dangers took centre stage in the dissent’s opening pages. Justice Breyer noted that in 2020, 45,222 Americans were killed by guns. He shared statistics on America’s staggering number of weapons—nearly 400m for a population of 330m. And he brought in news of recent mass shootings, including those in Buffalo, New York and Uvalde, Texas. But Justice Samuel Alito countered that “the New York law at issue in this case obviously did not stop that perpetrator [in Buffalo]”.
By way of reply, Justice Breyer noted that solutions to gun violence in America ought to be handled by “legislatures rather than courts”. Local variation demands localised legislation, he suggested.. In New York, for example, some “8.5m people living in the 303 square miles of New York City” may opt for stricter firearm regulations than “Montana or Wyoming, which do not contain any city remotely comparable in terms of population or density”. (Justice Breyer also took issue with Justice Thomas’s historical survey, citing “a 700-year Anglo-American tradition of regulating the public carriage of firearms”.)
The ruling in Bruen should not pose a problem for the gun-safety bill that a bipartisan group of senators are advancing in the wake of the recent mass shootings. It does not call into question enhanced background checks or red-flag laws, the main features of that legislation. And Bruen will not alter the contours of gun rights in most of America. States including Texas, Georgia and Alaska already waive all licensing requirements to carry a concealed weapon. In 25 states, gun owners can carry a weapon without a permit as long as they satisfy their state’s legal requirements to do so. In Ohio, for example, which joined their ranks on June 13th, anyone 21 years or older who is not a convicted felon or otherwise barred from carrying a gun may do so.
Of America’s other half, most are “shall issue” states that require concealed-carry permits but grant them to virtually anyone who asks. Two justices underlined that formal licensing requirements are not touched by Bruen. And requirements such as firearms training and mental-health checks are fine. But six “may issue” states—California, Hawaii, Maryland, Massachusetts, New Jersey, New York and the District of Columbia—may no longer exercise discretion when handing out concealed-carry permits.
Those states will now have much less autonomy to decide whom to entrust with a concealed weapon. Justice Thomas’s opinion says that limits on particular venues where such firearms may be toted are still possible (in stadiums, on college campuses and on the subway, for example). But in the wake of the Supreme Court’s decision, the streets of metropolises such as New York City and Los Angeles are likely to see a surge of people carrying hidden guns in their pockets and handbags.
Bruen casts a pall over blue-state efforts to rein in guns by banning certain weapons or raising the minimum age to buy a gun. It is probably but a first step to an even stronger Second Amendment under the court’s conservative supermajority.■
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