POP CIV BREAKING NEWS: Second Amendment Rights and the Courts

POP CIV BREAKING NEWS: Second Amendment Rights and the Courts

UPDATE: On June 23, 2022, the Supreme Court announced its opinion in New York State Rifle & Pistol Association Inc. v. Bruen. This represents the most significant ruling about Second Amendment rights to be issued in more than a decade.

The majority opinion, written by Associate Justice Clarence Thomas, strikes down the New York law that required individuals seeking concealed-carry permits to demonstrate a “proper cause” to carry a concealed handgun. Justice Thomas wrote:

“New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”

By striking down the New York law, this landmark decision solidifies a citizen’s Constitutional right to carry a concealed handgun outside of their home. Additionally, jurisdictions with “may issue” laws, where the onus is on applicants to prove their need for a concealed carry permit, will be struck down. Instead, “shall issue” standards will be applied, meaning that the burden of proof to deny an application now rests with the permitting authority, rather than the applicant. At the time of the decision, 43 states were “shall issue” jurisdictions, while only six states (including New York) have “may issue” policies in place.

In the concurring opinion, Associate Justice Brett Kavanaugh, joined by Chief Justice John Roberts, takes particular note of those numbers:

“The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York. …By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements…. Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so.”

Justice Kavanaugh goes on to state that, despite the Court’s decision to overturn this particular New York law, the Constitution still allows for “a ‘variety’ of gun regulations.” Justice Kavanaugh cites the opinion written by former Justice Samuel Alito in District of Columbia v. Heller, which we reference in the post below.

Associate Justices Stephen Breyer, Elena Kagan, and Sonya Sotomayor dissented. In his dissent, Justice Breyer made reference to the recent uptick in gun violence across the nation, and criticized the court for striking for the New York law “without considering the State’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision.”

Read SCOTUSblog’s coverage of the Bruen decision

See a map of "may issue" and "shall issue" states

The nation was rattled by a horrific shooting at an elementary school in Uvalde, TX, May 24. A man armed with two assault rifles killed 19 children and two teachers in the second deadliest school shooting in American history. During the weeks before the shooting in Uvalde, there were 44 mass shootings around the United States, including another high-profile shooting in Buffalo, NY, that killed 10 and injured three. Since May 24, there have been thirteen mass shootings, including the killing of 5 at a hospital in Tulsa, OK. As a result, the public debate around gun ownership, mental health, and public safety has again reached a fevered pitch. Among many questions, Americans are asking: how do we interpret the Constitution’s Second Amendment while working to prevent tragedies like those in Tulsa, Uvalde, and Buffalo?

While legislators at state and national levels wrestle with whether and how to draft new gun laws, we are looking at how the courts have been interpreting the Second Amendment. There have been two landmark cases in recent decades that shape the way our courts currently view gun ownership with another case awaiting a decision from the Supreme Court. Both decided cases strengthened the argument that the Second Amendment, in concert with the Fourteenth Amendment, protects an individual’s write to keep and bear arms. Written opinions in both cases also argue against allowing that right to exist unchecked by safety restrictions.

On March 18, 2008, the Court heard arguments in District of Columbia v. Heller, a case centering on the constitutionality of a DC law criminalizing the possession of unregistered handguns. In a 5-4 decision, the Court found that the District’s ban unlawfully restricted a private citizen’s right to own a firearm for self-defense. Writing for the majority, Justice Antonin Scalia noted that the simplest interpretation of the Second Amendment would “guarantee an individual right to possess and carry weapons in case of confrontation.” As a result, any law (such as the DC ban) that restricted a citizen’s ability to do precisely that would be unconstitutional. Justice Scalia also wrote that the decision did not provide carte blanche to gun ownership: “Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Two years later, the Court reaffirmed citizen’s rights to handgun ownership in McDonald v. City of Chicago. Following the decision in Heller, suits were brought against cities and states with similar firearm bans. In McDonald, the Court found that its ruling in Heller solidified the interpretation that Second Amendment rights applied at the local, state, and federal level. As in Heller, the decision in McDonald resulted in the repeal of a local ban, but the Court reasserted that Americans must exercise their right to own a gun within a set of safe parameters. In the majority opinion, Justice Samuel Alito stated:

“It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms ‘is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’. . . .We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill’, ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms . . .'”

And now, the Supreme Court is weighing its decision in New York State Rifle & Pistol Association Inc. v. Bruen, its most recent case dealing with the Second Amendment, which was heard by the Court in November of 2021. This case asks whether denials issued by New York State for concealed-carry permits violated applicants’ Second Amendment rights. A New York law requires that individuals applying for a concealed-carry permit demonstrate that they have a “special need” for self defense in order to have their application approved. Former SCOTUSblog editor Amy Howe noted that the Court seemed to disapprove of the New York law following the oral arguments. Other Court watchers have suggested that the Court’s questions during the arguments hinted at an eventual decision expanding gun rights. But the Court has yet to issue its opinion, leaving pundits asking whether the optics associated with a pro-firearm-rights decision on the heels of the most recent shootings would sour public opinion of the Court.

Discussion Question: If a jurisdiction enacts legislation that is then overturned by the courts, how do we as citizens decide who gets to have a say in how gun laws are enacted?

POP CIV BREAKING NEWS: Second Amendment Rights and the Courts

John Marshall Center for Constitutional History & Civics

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