Second Amendment Upheld

The Bruen decision came out today, and to no one’s surprise—except that of Kathy Hochul—the result was a 6-3 SCOTUS opinion that upheld the Second Amendment’s core guarantee of the right to keep and bear arms. You can read the full ruling here.

The case arose from extreme restrictions on the part of the state of New York regarding the issuance of concealed carry permits. By its terms, the New York law required citizens to show “proper cause” for why they should be allowed to exercise their Second Amendment rights. The heart of the opinion (written by Clarence Thomas) is the forthright assertion that any restrictions on the right to keep and bear arms must be justified by the constitutional text and history. Period. The opinion does away with “may issue” laws.

On the other hand, the allowance for historically grounded restrictions in very limited circumstances means that in certain states there will probably be lengthy court battles over those restrictions—as well as other petty harassment laws. Still, the burden will now be shifted to the government—the government will be the party that will need to show a “compelling” reason for such restrictions. The SCOTUS definitively rejects the approach taken by some Appellate Courts that was used to limit Second Amendment rights:

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

Thomas acknowledges that history is sometimes hard, but defends that approach—by implication, IMO—as restricting the scope of subjective judicial meddling:

Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is 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.

Beyond that, here is the key passage in full, but stripped of references (pp 2-3):

(a) In District of Columbia v. Heller and McDonald v. Chicago the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.

(1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.

(2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is 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. Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. While 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.

(3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. Indeed, the Court 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.”

To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry.

To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because 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.

Here’s some initial commentary from Jonathan Turley:

The fifth opinion is out. It is Bruen!

Thomas 6-3 in favor of gun rights.

supremecourt.gov/opinions/21pdf…

...New York’s proper-cause requirement violates the Fourteenth
Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and
bear arms in public for self-defense.

...Interesting exchange between Alito and Breyer. Breyer raised Uvalde and Alito responds with Buffalo: "how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo?"

Alito’s point is that the Buffalo shooting took place within the extremely restrictive 2A environment of New York state—the party bringing this appeal before the Court.

...Breyer: "The dangers posed by firearms can take many forms. Newspapers report mass shootings occurring at an entertainment district in Philadelphia, Pennsylvania (3 dead and 11 injured); an elementary school in Uvalde, Texas (21 dead)..."

Alito, in effect: Mass shootings don’t appear to be prevented by extreme gun control laws.

...Thomas continues the allowance for restrictions in some "sensitive places": "Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited..."

However, it appears that those “sensitive places” must have some basis in or justification rooted in history.

..."—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions."

...The language of this opinion lays out a clear foundation for Second Amendment in future challenges. It is a weighty as the Heller decision in this sense. It not only blows away the two-part test used by lower courts but flips the burden on states pursuing future limits.

...It also does away with the distinction between home and public "with respect to the right to keep and bear arms." This opinion brings clarity under the Second Amendment.