[ED: TTAG contributor and member of the Supreme Court bar, LKB, has perused today’s NYSRPA v. Bruen decision and gives us his best assessment of what this means for gun rights now and could mean in the future.]
By LKB
That popping sound you may have heard at 10:41 AM Eastern this morning was thousands of anti-2A minds being blown simultaneously. The wailing you’ve been hearing since that’s emanating from various liberal neighborhoods, newsrooms, universities, and blue state government officials is indeed the lamentation of the women.
Our long, frustrating wait of the past decade or more – through the years of the Mexican standoff created by Justice Anthony Kennedy’s unpredictability, followed by Chief Justice John Roberts’ spinelessness – is over at long last.
Justice Clarence Thomas celebrated his 74th birthday today by giving the nation an incredible present, a 6-3 Supreme Court opinion that leaves no doubt: the Second Amendment is no longer a “second class right,” but is instead a fundamental constitution right that must be treated as such.
There will be barrels of ink spilled in the coming weeks as this opinion is dissected and analyzed. But for now here is my quick synopsis of the opinion, the concurrences, and the dissent, as well as my initial thoughts on what this may mean for future cases.
I urge you to read the opinion (especially the historical sections) for yourself. Justice Thomas is a fine writer and this opinion is one of his best.
Executive Summary
The Court has held that the “text, history, and tradition” test must be applied to Second Amendment cases, and that “means-end” balancing under intermediate or even strict scrutiny – which certain courts have used for years to essentially ignore Heller – is improper.
After undertaking an exhaustive, 33-page review of the history of Anglo-American law concerning the bearing of arms for self-defense, the Court concluded that New York’s “may issue” system for issuing concealed carry permits infringes the rights of law abiding citizens, who have a constitutional right to carry handguns outside the home for self defense.
While the case itself deals only with New York’s laws, the opinion leaves no room for doubt that the “may issue” laws of New Jersey, Massachusetts, Maryland, California, and Hawaii are also now officially toast.
The conclusion was classic Clarence Thomas:
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.
The decision was decided on a 6 to 3 vote. As noted by Cody Wisniewski, a Second Amendment expert for the Mountain States Legal Foundation, that fact is also encouraging . . .
The majority opinion was authored by Justice Thomas. Given this was a 6-3 opinion with Chief Justice Roberts in the majority, that means Chief Justice Roberts assigned the majority opinion to be written by Justice Thomas.
I agree with Cody. Recall that under Supreme Court practice, the Chief Justice assigns the writing of an opinion unless he is in the minority, in which case the opinion is assigned by the most senior Justice in the majority.
I had expected that if Chief Justice Roberts joined the majority, it would be a tactical decision on his part so that he could assign the opinion to himself or to perhaps Justices Kavanaugh or Barrett, who might be expected to write a much narrower opinion than Justice Thomas would. Thomas is the most senior Justice and by far and is the most ardent advocate on the Court for Second Amendment rights.
Because Chief Justice Roberts was in the majority, that means that he assigned the opinion to Justice Thomas, no doubt knowing exactly what kind of opinion Thomas would almost certainly write. That’s a very hopeful sign for the future.
Majority Opinion
After reviewing the New York laws in question, the laws of other states, and the facts of this particular case (two New Yorkers who had “restricted” licenses to own handguns but were denied “unrestricted” licenses that would have allowed them to carry for self defense), Justice Thomas first turned to the proper standard of review. This is typical procedure in judicial decisions.
He noted that since Heller, most Courts of Appeals have employed a “two-step” procedure, where the court first evaluates whether the law in question facially implicates Second Amendment rights. If so, the court then evaluates whether there is an important governmental interest that outweighs the individual right, using either intermediate scrutiny (most common) or strict scrutiny.
Justice Thomas rejected this approach as “one step too many” . . .
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. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
The opinion proceeded to explain why the text, history, and tradition approach is mandated by Heller, but also “comports with how we assess many other constitutional rights.”
Without getting too far into the weeds, this analysis could be an earthquake in constitutional law, as it may spell the demise of intermediate or strict scrutiny analysis for other constitutional rights, such as free speech, free exercise of religion, and equal protection cases. (Given that the Court has granted cert on two affirmative action cases, the respondents in those cases should be afraid – very afraid.)
The opinion then explained the test for Second Amendment cases . . .
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 timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.
The opinion thus proceeded to analyze whether the New York “may issue” system implicated the Second Amendment at all. In finding it did, it torched a number of arguments that the anti-Second Amendment forces have been making for years.
Take, for example, the common argument that Heller only applies to the “keeping” of arms in the home. That argument is now firmly consigned to the dustbin of history.
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.” Heller, 554 U. S., at 599; see also McDonald, 561 U. S., at 767. 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.
Although we remarked in Heller that the need for armed self-defense is perhaps “most acute” in the home, id., at 628, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. See Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012) (“[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower”). The text of the Second Amendment reflects that reality. The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear” arms in public for self-defense.
Nor does Heller’s allowance of prohibiting arms in “sensitive places” allow New York City to simply declare large swaths of populated areas off limits.
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. See Part III–B, infra. 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.
Similarly, it reiterated earlier rulings that the Second Amendment is not limited to arms in existence in the late 18th Century, thus burying the argument that the Second Amendment is somehow limited to flintlock muskets.
Having determined that the New York “may issue” laws implicated the Second Amendment, the Court then proceeded to make an exhaustive review of Anglo-American law from medieval times through the early 20th century regarding the bearing of arms in the public.
This part of the opinion is far too long to do it justice in a quick summary. Suffice it to say that it neatly disposes of a lot of historical legends and misrepresentations, and is probably the most comprehensive history of that law that I have seen in a judicial opinion (again, read the whole thing). But importantly, Justice Thomas focused on the fact that the proper inquiry is what the Second Amendment was understood to mean at the time of adoption.
We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635 (emphasis added). The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years. It is one thing for courts to “reac[h] back to the 14th century” for English practices that “prevailed up to the ‘period immediately before and after the framing of the Constitution.’” Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 311 (2008) (ROBERTS, C. J., dissenting). It is quite another to rely on an “ancient” practice that had become “obsolete in England at the time of the adoption of the Constitution” and never “was acted upon or accepted in the colonies.” Dimick v. Schiedt, 293 U. S. 474, 477 (1935).
After reviewing the history, the Court held that broad prohibitions on the bearing of arms by law-abiding persons for self defense were not historically traditional. Indeed, the opposite was true. As such, respondents could not overcome the presumption that the New York laws are unconstitutional, and those laws were thus struck down.
Concurrences
There were also three concurrences. In response to Justice Breyer’s handwringing dissent (which was, not surprisingly, joined by Justices Kagan and Sotomajor), Justice Alito issued a blistering concurrence (I’ll discuss both below).
Justice Kavanaugh (joined by Chief Justice Roberts) concurred to emphasize that the opinion does not prohibit states from implementing “shall issue” licensing laws, but also made clear that the remaining “may issue” systems are kaput.
They also quoted from McDonald that the Second Amendment does not prohibit longstanding prohibitions of possession of firearms by felons and the mentally ill, nor the carrying of arms in sensitive places, and that the Second Amendment applies to arms “in common use.”
Justice Barrett concurred to note that the historical approach used by the Court (which, as I noted above, could be an earthquake in constitutional law) did not resolve whether and to what extent post-ratification practices and history can be considered in determining the intent at the time of ratification. (This is a serious issues for law nerds, but for now I’ll leave it at that.)
Dissent and Alito’s Concurrence
To no one’s surprise, Justice Breyer wrote a lengthy (52-page) dissent enunciating the usual talking points from the left about gun violence, etc., and disagreeing with the elimination of the two-step analytical framework and Justice Thomas’ interpretations of the historical record. I’ll leave a detailed analysis of that to the reader.
Justice Alito apparently took on the job of writing the rejoinder to the liberal Justices’ dissent. It was…ruthless. Heck, at times it reads like something you’d see in the TTAG comment section.
Examples:
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.
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
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. See post, at 3. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.
No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law. Each year, the New York City Police Department (NYPD) confiscates thousands of guns, and it is fair to assume that the number of guns seized is a fraction of the total number held unlawfully. The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City. Some of these people live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury. …
Like that dissent in Heller, the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit. That argument was rejected in Heller, and while the dissent protests that it is not rearguing Heller, it proceeds to do just that. …
Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.
It’s another bravura Alito opinion. Read it.
Implications for Future Cases
As indicated above, “may issue” permitting systems appear to be a dead letter under this decision. Yes, New York, California, and other “may issue” jurisdiction will try and press their luck, but organizations like GOA, FPC, MSLF, and others will have a field day with them in court.
Just as Illinois and DC had to be dragged, kicking and screaming, to implement “shall issue,” it may take some time but it will happen. Indeed, I’ll be watching to see if federal civil rights lawsuits are filed against blue state politicians, especially if they publicly admit that they are trying to thwart implementation of this decision.
As noted in the Alito concurrence, the decision does not directly affect things like “assault rifle” bans. However, under the historical analysis mandated by the Court, I do not expect those to survive, especially given that AR-platform rifles are the most popular long gun in the country. Expect to now see a slew of Court of Appeal decision summarily sent packing with instructions to reconsider in light of this decision.
Jurisdictions like New York and California will no longer be allowed to rely on friendly judges applying intermediate scrutiny to uphold new flavor-of-the-month regulations on guns and gun owners. Such laws are now presumptively unconstitutional, and states will have to show that they have actual historical analogues to save them.
That’s not likely to happen, albeit again it will likely take a lot of lawyering to drag them over the line.
What of the NFA and Gun Control Act of ’68? We’ll see. Parts of them will certainly be challenged (in some cases, the test cases are already on file).
But what will be particularly interesting to me will be an attack on the Hughes Amendment. Given that machine guns were subject to no prohibitions prior to the 1934 National Firearms Act, and thereafter could still be manufactured and sold to the public with a tax stamp until 1986, and that weapons on the registry in 1986 are still legal with a tax stamp, methinks the government will have an uphill fight upholding the Hughes Amendment under the Bruen test.
I have been studying Second Amendment law for over 40 years, and have been waiting for a decision like this that recognizes and restores our Second Amendment rights for a very long time. It is hard to emphasize how big this decision is in lots of respects, and not just for Second Amendment jurisprudence.
For now, let’s all celebrate Justice Thomas’ birthday (heck, I think June 23 needs to be an annual celebration hereafter, at least here at TTAG) by firing up a fine cigar in his honor (he prefers Ashtons).
And be sure to savor the lamentation of the women….
