A Landmark Decision in Bruen


Belated Happy Birthday Cheers and Exaltations to Supreme Court Justice Clarence Thomas, who celebrated his 74th birthday on June 23, 2022, by writing the majority decision in a landmark gunowner-rights court case, New York State Rifle & Pistol Association, Inc., et al. v. Bruen (hereafter, just Bruen). The Thomas decision was awesome and wide ranging, and like I did in the August 2021 issue, wherein I covered a gun-owner-rights decision written by District Court Judge Roger T. Benitez, I’ll quote extensively from the Bruen decision below so my fellow shooters can savor some of the language of this epic win.

Background: First, a few housekeeping chores about the Bruen case. It was decided 6-3, with Thomas delivering the opinion of the Court, in which Chief Justice John Roberts and Associate Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined. Associate Justice Stephen G. Breyer filed a dissenting opinion, in which Associate Justices Sonia Sotomayor and Elena Kagan joined. In my mind, it is indisputable that this case was so decided because of the addition of Justices Gorsuch, Kavanaugh, and Barrett.

The named entities in the Bruen decision are headlined by the New York State Rifle & Pistol Association. Since 1871, the organization has been dedicated to the preservation of Second Amendment rights. NYSRPA is an official NRA-affiliated State Association in New York. The “Bruen” in the case name is Kevin P. Bruen, in his official capacity as Superintendent of New York State Police. The case, filed against then-Superintendent George P. Beach II of the New York S.P. and Justice Richard J. McNally of the New York Supreme Court, was initially dismissed at the Northern District of New York in 2018. The plaintiffs appealed to the Second Circuit, which affirmed the dismissal by the District Court in August 2020. Beach was replaced by Keith M. Corlett in 2019; Corlett was replaced by Kevin P. Bruen in 2021, and Bruen was subsequently named as the defendant and respondent in the suit.

Bruen is the Supreme Court’s first major Second Amendment ruling since 2010, when the court struck down Chicago’s handgun ban in McDonald v. City of Chicago, which overturned that city’s handgun ban and incorporated the Second Amendment to be applied to the states through the 14th Amendment. Like after McDonald, I think we’ll see a variety of gun laws challenged and struck down. In particular, “may issue” licensing schemes in California, Hawaii, Maryland, Massachusetts, New Jersey, and the District of Columbia, where authorities have discretion to deny concealed-carry licenses, will be challenged immediately. While the Bruen opinion does not wipe out concealed-carry restrictions in those states, challenges to such laws are now likely to succeed in court.

And with the table set, how about some delicious excerpts? I’ve taken out most of the cites to get to the meat, but check the PDF of the opinion posted on the Gun-Tests.com website by searching for the keyword “Bruen.”

Page 1

In District of Columbia v. Heller, (2008), and McDonald v. Chicago, (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Page 6

As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York. Koch lives in Troy, while Nash lives in Averill Park. Petitioner New York State Rifle & Pistol Association, Inc., is a public-interest group organized to defend the Second Amendment rights of New Yorkers. Both Koch and Nash are members. In 2014, Nash applied for an unrestricted license to carry a handgun in public. Nash did not claim any unique danger to his personal safety; he simply wanted to carry a handgun for self-defense. In early 2015, the State denied Nash’s application for an unrestricted license but granted him a restricted license for hunting and target shooting only. In late 2016, Nash asked a licensing officer to remove the restrictions, citing a string of recent robberies in his neighborhood. The licensing officer denied the request. The officer reiterated that Nash’s existing license permitted him “to carry concealed for purposes of off road back country, outdoor activities similar to hunting,” such as “fishing, hiking & camping etc.” But, at the same time, the officer emphasized that the restrictions were “intended to prohibit [Nash] from carrying concealed in ANY LOCATION typically open to and frequented by the general public.”

Between 2008 and 2017, Koch was in the same position as Nash: He faced no special dangers, wanted a handgun for general self-defense, and had only a restricted license permitting him to carry a handgun outside the home for hunting and target shooting.

Respondents are the super-intendent of the New York State Police, who oversees the enforcement of the State’s licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County. Petitioners sued respondents for declaratory and injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications on the basis that they had failed to show “proper cause.”

Page 8, II

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, 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.

Page 17

If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.

Page 17, D

The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this time frame, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.

Page 19

We have already recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that definition covers modern instruments that facilitate armed self-defense.

Page 22

Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department.

Page 23, A

This definition of “bear” naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often “keep” firearms in their home, at the ready for self-defense, most do not “bear” (i.e., carry) them in the home beyond moments of actual confrontation. To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative protections.

Moreover, confining the right to “bear” arms to the home would make little sense given that self-defense is “the central component of the [Second Amendment] right itself.” After all, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” Heller, 554 U. S., at 592, and confrontation can surely take place outside the home.

Page 62, IV

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.


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