The long-awaited New York State Rifle & Pistol Association vs. Bruen decision was published last week by the US Supreme Court. Gun owners won a significant victory as the court ruled in the plaintiffs’ favor, though the ruling is fairly narrow. There is more work to be done here as New York and other gun control states scramble to find workarounds to mitigate the decision’s impact.
The Bruen Decision: What it Says
Writing for the majority, Justice Clarence Thomas, long a Second Amendment champion, notes that “individual self-defense is the ‘central component’ of the Second Amendment right.” The Heller and McDonald decisions established that years ago. As such, New York’s requirement for citizens to show a special need to obtain a license to carry for self-defense is not consistent with the historical or legal understanding of the Second Amendment.
The “special need” requirement is discretionary and subjective on the part of the issuing state official, resulting in the arbitrary denial of the overwhelming number of applications. Only those employed in certain professions, such as judges, police officers, corrections officers, and bank messengers are not subjected to that scrutiny. Tellingly, government officials, professional athletes, and the wealthy seem to have no trouble securing licenses either.
Furthermore, lower courts’ tendency to apply a two-step scrutiny procedure is “one step too many,” according to the majority opinion, again informed by Heller and McDonald. Thomas wrote that lower courts have held that legislators have the right to determine restrictions based on circumstances such as concern for public safety. The problem is that the second step is subjective based on personal opinion and legislative priorities instead of the peoples’ Constitutional rights. That second step is therefore Unconstitutional and will no longer be applied in such cases.
The Bruen Dissent
Justice Stephen Breyer wrote the dissenting opinion, joined by Justices Kagan and Sotomayor. Breyer’s dissent essentially repeats the number of firearm deaths in the United States, including mass shootings. He also cites numerous studies trotted out by gun control advocates. He notably leaves out studies that show results favorable to the majority opinion, including the 2013 Centers for Disease Control and Prevention’s report that as many as 2.5 million defensive uses of firearms occur every year.
Breyer touts the ability of legislators to “balance…lawful uses against the dangers of firearms,” in their deliberations, saying that judges should defer to their reasoning. That, of course, negates the purpose of judicial review, which ensures that legislation does not violate the Constitution. This is especially true when examining the infringement of a right specifically protected by the Constitution.
Justice Breyer also dissents because there was no evidence provided to show the law was applied in an “arbitrary and capricious” manner. Yet Justice Samuel Alito responded to that allegation with numbers showing the low approval rate, which illustrates the disparate number of denials versus approvals.
Breyer notes that handguns are by far the most common self-defense weapon. They are also the most likely to be used by criminals. Those of us who understand firearms know why both are true. Yet Breyer believes legislators should be able to limit carrying handguns by law-abiding citizens, knowing full well that criminals are not affected by those restrictions unless they are caught after the fact. The law demonstrably does not deter criminals.
Breyer deplores the fact that crime is increasing and says that’s a reason to restrict law-abiding gun owners’ right to carry in public. To which Alito responds that rising crime is why more people want to carry. He also points out that Breyer cited the recent mass shooting in Buffalo, despite the fact that the New York law had no bearing on that incident or any other criminal act. Breyer seems unable to discriminate between criminals and people who want to protect themselves.
This failure, shared by the state of New York, created a two-tiered system for a Constitutional right, meaning that it requires people to qualify for its exercise. That’s what Thomas meant when he said New York’s law, and the lower court decisions upholding it, went a step too far.
Positive Rights and Negative Rights
The two opinions collide over this distinction. Government grants positive rights. Negative rights are preexisting, and the law protects them from infringement by government. Government can also revoke positive rights. Negative rights already exist, so the government lacks the power to infringe upon them. The right to self-defense has existed since the dawn of time. That’s why the Bill of Rights, including the Second Amendment, is worded so specifically.
Breyer’s dissent hinges on the government’s ability to restrict, if not outright revoke a Constitutionally protected right of the people. Thomas’s opinion, joined by Justices Alito, Gorsuch, Roberts, Barrett, and Kavanaugh, rejected that notion in this case.
What the Bruen Decision Does
As noted previously, Bruen is fairly narrow. It invalidates the New York law requiring licensed citizens to show a “special need” to carry a handgun for self-defense. That’s it. Despite the breathless commentary from gun control groups, zealous politicians, and the media, it DOES NOT allow anyone to carry a concealed handgun without a license. Nor does it allow licensees to carry in historically sensitive places, such as schools or government buildings.
Basically, all it does is turn so-called “May Issue” states into “Shall Issue” states. It does not rescind the requirement for background checks on gun purchases or to obtain a license to carry. Again, the gun control folks have blown this way out of proportion. But that’s what they always do.
The states of Delaware, California, Hawaii, Rhode Island, Maryland, Massachusetts, and New Jersey have similar laws that are now Unconstitutional in that respect. Like New York, those states are now scrambling to rewrite their laws to comply with Bruen while looking for new ways to restrict concealed carry that don’t run afoul of the recent decision.
New York Governor Kathy Hochul has already laid out her plan to create so many restricted areas that carrying will be impractical, if not impossible. She crowed that she would decide what those places will be. You can bet that they will be many and diverse.
Several Second Amendment groups are already preparing lawsuits against states taking that path toward infringement. Thomas noted that “sensitive places” can’t be just whatever lawmakers decide. They must have historical precent. Hochul’s dodging should be interesting, opening up avenues for legal challenges.
But, either way, Bruen is still an important gain for the Second Amendment. States can no longer require citizens to show a special need to exercise their rights. Now, we must prepare to fight their restrictions on where that right extends and where it does not. Thomas gave us that opening, and we must seize it.