The U.S. Supreme Court on Thursday struck down a New York state gun control law, setting a major precedent that expands the reach of the Second Amendment and puts existing firearm restrictions in other states into immediate legal jeopardy.
At issue in New York State Rifle & Pistol Association v. Bruen was a 1913 New York law that requires people to get licenses if they want to take guns outside of their homes. In order to get one of those licenses, a gun owner must show they actually need the weapon for self-defense.
In a 6-to-3 ruling, with Republican-appointed justices in the majority and Democratic-appointed justices dissenting, the court determined that New York’s licensing requirement violates the Second Amendment’s guarantee of a “right to keep and bear arms.”
“The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need,“ Justice Clarence Thomas wrote in the lead opinion. “The Second Amendment right to carry arms in public for self-defense is no different.”
Back in 2008, the court had said that the Second Amendment protects the right to own a gun, while allowing for certain restrictions on firearms use. With this new ruling, the court has effectively said the Second Amendment also protects the right to carry that gun in public, which means it will be more difficult to defend restrictions in court.
“Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms,” Thomas wrote.
In a concurrence, Chief Justice John Roberts and Associate Justice Brett Kavanaugh made clear the decision applies only to states like New York where officials can choose whether or not to issue carry permits — or where people who want permits have to demonstrate a need for them.
In other words, it’s fine if a state wants to require permits to carry a gun in public, just so long as getting that permit is nearly automatic.
But the distinction may not be as meaningful as it seems.
For one thing, the states with systems similar to New York’s include California, Massachusetts and New Jersey. Together, they account for about one-fourth of the U.S. population.
In addition, Thomas wrote that lower courts need to be more vigilant about protecting Second Amendment rights by using a tougher standard tied to what governments have done in the past. That standard could create a foundation for challenging other gun limits in future, some scholars said on Thursday.
“The new test Thomas announces ... is likely to make it more difficult for state and local governments to defend their firearms regulations,” Cardozo Law Professor and “Strict Scrutiny” co-host Kate Shaw told HuffPost.
Among the regulations that could be tough to defend under Thomas’s new standard are key components of the bipartisan gun bill now under consideration in Congress.
That bill would provide new funding for “red flag laws,” which allow courts to take guns away from people who pose immediate threats. It would also prohibit gun ownership by domestic abusers, closing what’s come to be known as the “boyfriend loophole,” allowing restoration of those rights only after five years.
“The Court’s Second Amendment ruling calls into question key parts of the Senate gun bill,” Adam Winkler, a UCLA law professor and expert on firearm rights, posted on Twitter. “Thomas says only gun regulations consistent with historical regulation of guns are permissible. Red flag laws, however, are a modern invention. So too bans on domestic abusers.”
Of course, exactly what history says about gun laws is also contested territory. A major dispute in this case was over the relevance of prior restrictions on firearms, some of them going back hundreds of years to England and the meaning of common law there.
Thomas in his opinion dismissed the significance of those earlier regulations, saying they did not justify New York’s law or many other attempts to limit firearm possession.
The Latest Legal Win In A Long Campaign
Thursday’s ruling represents the latest victory in the decadeslong campaign by conservatives to develop intellectual arguments justifying a more expansive reading of the Second Amendment and, then, to fill the federal courts with judges sympathetic to those arguments.
Until relatively recently in American history, the dominant view among judges and legal scholars was that the Second Amendment was primarily about the right of states to maintain militias. In 1990, as conservatives were pressing the argument that it actually included a personal right to firearm ownership and possession, former Chief Justice Warren Burger called their argument a “fraud on the American people.”
But a conservative majority on the Supreme Court endorsed that argument in its landmark 2008 decision, as Justice Samuel Alito emphasized in his concurring opinion to Thursday’s ruling.
“The key point that we decided was that ‘the people,’ not just members of the ‘militia,’ have the right to use a firearm to defend themselves,” Alito wrote.
Thursday’s decision drew sharply divergent reactions from elected officials, with prominent Republicans praising it and prominent Democrats condemning it. Among those weighing in were the lawmakers whose constituents are most immediately affected ― in other words, the ones from New York.
“Today’s Supreme Court ruling upholds the Constitutional rights of law-abiding citizens to keep and bear arms and correctly declares New York’s shameful attempt to shred Second Amendment rights of New Yorkers unconstitutional,” Rep. Elise Stefanik (R-N.Y.) said in an official release that also criticized the “Far-Left” and predicted the decision would allow “law-abiding gun owners ... to protect themselves and their families.”
“This is evidence that this is an activist Supreme Court,” Sen. Kirsten Gillibrand (D-N.Y.) told HuffPost. Gillibrand went on to link the decision to other elements of the conservative agenda. “You combine this decision and the reasoning with the draft decision on Roe, and you can see President Trump’s intention from the beginning was to undermine not only precedent, but state’s rights and states’ laws that have really put public safety at the forefront.”
The Shadow Of Recent Massacres
Thursday’s ruling comes almost exactly one month after a gun massacre at an elementary school in Uvalde, Texas, and amid a rise in violent crime across the country, although overall the incidence of gun crimes remains far below what it was in the 1980s and 1990s.
Supporters of gun restrictions say the threat of gun violence means that governments should restrict ownership and possession more aggressively, while opponents of gun restrictions say the threat means more people need to arm themselves.
Justice Stephen Breyer opened his dissent by noting that more than 45,000 Americans died from gun violence last year. Alito, in his concurrence, responded directly by pointing out that New York’s law did not prevent a mass shooting in Buffalo last month.
The actual impact of permit systems and other gun laws remains the subject of great debate, much like the Second Amendment itself.
A thorough 2020 literature review by the Rand Corporation found evidence on permits and related measures to be “limited” or “inconclusive,” depending on the kind of violence. But in general, the states with more aggressive gun laws have lower rates of gun violence.
Overall, the U.S. is an international outlier when it comes to gun violence, with rates dramatically higher than in any other developed country. And Americans are far more likely to have guns than their counterparts in those other nations.
Igor Bobic contributed reporting.