The Supreme Court handed a significant win to supporters of the Second Amendment Thursday in its ruling on New York State Rifle & Pistol Association v. BRUEN. The 6-3 decision strikes down a New York law that makes it difficult to carry handguns in public. Five other states (California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island) make the issuance of a carry license conditional based on "some additional special need," wrote Justice Clarence Thomas—who wrote for the majority in the case. Justices Sotomayor and Kagan joined Justice Breyer in his dissent.
In Bruen, petitioners Brandon Koch and Robert Nash "applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense." The State denied their petition because they "failed to satisfy the "proper cause" requirement." The justices argued that gun owners do not need to "demonstrate a special need for self-protection" to carry a gun outside the home. Thomas wrote that the Constitution protects "an individual's right to carry a handgun for self-defense outside the home."
Justice Clarence Thomas Argues For Majority
Citing District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), Justice Thomas' 63-page opinion "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." Thomas looked at Heller's historical approach and its rejection of means-end scrutiny to solidify his reasoning. Thomas explains that the Constitution effectively pre-empts any such conditional scrutiny of proper cause:
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "'unqualified command.'"
Thomas was grounded in the use of history as a basis for his opinion. Referencing McDonald, he stated that decisions concerning issues like this benefit from looking at history for constitutional context and meaning. As such, he reasoned, judges can make more legitimate decisions by giving the Constitution, and therefore the People, the "deference" it deserves:
"[A] reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate and more administrable, than asking judges to 'make difficult empirical judgments' about 'the costs and benefits of firearms restrictions, especially given their lack [of] expertise in the field.'"
Thomas also plainly stated to "confine the right to 'bear' arms to the home would nullify half of the Second Amendment's operative protections." Moreover, wrote Thomas, the idea that one could not carry outside the home makes little sense, "given that self-defense is "the central component of the [Second Amendment] right itself."
The Court's opinion also asserted that the Second Amendment right to keep and bear arms should not be held to a lower standard than other Constitutional rights like the First Amendment. Thomas continued:
"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."
Dred Scott v. Sanford also informed Thomas' opinion, an interesting entry in the age of identity politics.
"Chief Justice Taney," wrote Thomas, "offered what he thought was a parade of horrible that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including "the right to keep and carry arms wherever they went."
Thomas used the case to elucidate further that "even Justice Taney recognized (albeit enthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America."
Breyer Dissents
Breyer's dissenting opinion focused heavily on recent gun violence and the States' legislatures' mandate to legislate accordingly. Breyer wrote:
"In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022) (CDC, Fast Facts), https://www.cdc.gov/violenceprevention/ firearms/fastfact.html. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolence archive.org. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents."
Breyer took issue with Thomas' focus on historical context. He also said the Court may not understand how the law works "in practice." His focus on the "nature and severity" of gun violence and the inherent difficulty of legislating laws responsive to the "serious problem of gun violence" guided much of the thinking behind his consent. He pointedly wrote that it is now impermissible "to consider the serious dangers and consequences of gun violence that lead states to regulate firearms."
While Breyer concedes that guns can be used for various purposes, like hunting, he continues to contend that gun violence is on the rise and Courts must allow States to address the violence legislatively:
"Some Americans use guns for legitimate purposes, such as sport (e.g., hunting or target shooting), certain types of employment (e.g., as a private security guard), or self-defense. Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies, such as legislatures.
The primary difference between the Court's view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence that I have just described. I fear that the Court's interpretation ignores these significant dangers and leaves States without the ability to address them."
Alito Scorches Breyer's Rationale
Alito's scorching response to Breyer's dissent is remarkable in its directness. He delivered fiery blows to Breyer's introductory statements and all but crushed Breyer's argument that legislation can prevent criminal gun violence.
To that end, Alito posits how the very New York law discussed in the case failed to prevent the shooter in Buffalo from killing people. He also contends that Breyer's recounting of recent shootings is irrelevant. Alito wrote:
"In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent's lengthy introductory section. See post, at 1–8 (opinion of BREYER, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post, at 4–5. Does the dissent think that laws like New York's prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator."
Alito poked holes in Breyer's rationales on multiple occasions. His reasoning was often exacting and served to reorient to the specifics of the case at hand.
"What is the relevance of statistics about the use of guns to commit suicide? See post, at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside? The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York's?
The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).1"
And then Alito wrote this:
"The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home."
Alito goes on to say that Breyer fails to recognize that the rise in gun violence is the very reason citizens now feel the need to carry in public "for self-defense."
One of the more compelling sections of Alito's opinion referred to a real-world case involving a New York solicitor general who was asked about "an ordinary person who works at night and must walk through dark and crime-infested streets to get home." The solicitor general was given a scenario of a woman walking at night where muggings had become commonplace. He was asked whether she would be allowed to carry a gun because of her fear. "The solicitor general's candid answer was "in general," no. To get a permit, the applicant would have to show more—for example, that she had been singled out for attack. Id., at 65; see also id., at 58. A law that dictates that answer violates the Second Amendment." The argument that she would have to be singled out first is arguably absurd.
Hochul and Biden Pledge to Preserve Limitations on Guns
New York's Governor Kathy Hochul sided with Breyer in her response. Hochul has pledged to do whatever is necessary to preserve limitations on concealed carry permits.
In a statement at an event, according to reporting from HuffPost, Hochul stated the ruling was "'frightful in its scope" and "could place millions of New Yorkers in harm's way." Hochul continued:
"If the federal government will not have sweeping laws to protect us, then our states and our governors have a moral responsibility to do what we can and have laws that protect our citizens because of what is going on―the insanity of the gun culture that has now possessed everyone all the way up to even to the Supreme Court."
President Biden also bristled at the ruling with his June 23 statement, not surprising given his June 2 remarks on gun violence in America.
"This ruling contradicts both common sense and the Constitution and should deeply trouble us all. In the wake of the horrific attacks in Buffalo and Uvalde, as well as the daily acts of gun violence that do not make national headlines, we must do more as a society—not less—to protect our fellow Americans."
