Up in Arms! Supreme Court Holds New York’s Demand that Permit Seekers Demonstrate Special Need for a Gun Violates the Second and Fourteenth Amendments

New York State Rifle & Pistol Association, Inc., et al. v. Bruen, Superintendent Of New York State Police, et al., No. 20–843. June 23, 2022


The opinion of the Court issued today begins by reciting that Supreme Court precedent has established the right of “an ordinary, law-abiding citizen to possess a handgun in the home for self defense.”  District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). While the parties to this suit agree that there exists a similar right to carry handguns outside the home, petitioners argue, and the Supreme Court has agreed, that New York’s handgun licensing scheme, which requires that an applicant make a showing of “proper cause” for issuance of a license, violates the Second and Fourteenth Amendments of the U.S. Constitution.

 

Handguns have been regulated in New York since the early 20th century.  To obtain a license to carry a handgun outside the home, New York requires an applicant to demonstrate that special cause exists that makes a license necessary.  The applicant must show that he or she needs special self protection beyond that which is needed by the general community.  

 

No statute defines the “proper cause” which must be found to exist for a license to be granted, the undefined standard appears to be high, requiring particular threats or danger.  

 

Judicial review of denial of a license is limited.

 

Most states mandate licensing where minimal criteria are met.  New York and six other states confer discretion in licensing.  The most common reason for denial of a discretionary license is failure to demonstrate cause or suitability.  

 

Both petitioners here were awarded limited licenses that forbade carrying a concealed weapon in public spaces.  Unlimited licensing was denied before of a perceived failure to meet the “proper cause” standing by demonstrating a “unique need for self-defense.”  Slip Op. at 7.

 

As the United States Court of Appeals for the Second Circuit had previously upheld New York’s “proper cause” standard as advancing an “important government interest,” petitioners failed to obtain relief in the Second Circuit.

 

Today the Supreme Court rejected the line of cases subsequent to Heller and McDonald that have applied history and means-end scrutiny in Second Amendment cases. 

 

Today the Supreme Court announced that the Second Amendment presumptively protects conduct covered in the plain text of the Second Amendment. Regulation –no matter how important the government cause – is impermissible unless it is consistent with historical firearm regulation.  Slip Op. at 8. 

 

Post-Heller, post-McDonald analyses have looked at whether a regulation falls outside core Second Amendment protection, through historical analysis.  Regulations not within this scope do not enjoy Second Amendment protection.  Where there is ambiguity or insufficient history to inform consideration, however, the courts look to whether a regulation addresses activity close to the core Second Amendment right and “how severely the regulation burdens that right.”  Kanter v. Barr, 919 F. 3d 437, 441 (7th Cir. 2019). 

 

The “core” Second Amendment protection is self defense in the home, the Circuit Courts of Appeal have conceded, with some exceptions.  Outside the home, regulations, if not seen as “core,” require strict scrutiny. Non-core regulation needs to meet only intermediate scrutiny.  

 

In today’s case, the Supreme Court rejects this analytical scheme notwithstanding tha the parties agree to it.  Ensuring that any asserted interest reflected in the text of the Second Amendment, in accordance with history, is correct. Any further analysis need not apply means-end dissection but the regulating government entity must show that the regulation under consideration is historically sound, refecting “the outer bounds of the right to keep and bear arms.”  Slip Op. at 10.  

 

The historically informed textual analysis reflects the Court’s determination that the Second Amendment is not novel but that it represents codification of an existing right.  Historic support for any analysis may be found in legal scholarship; 19th century case law, Congressional and public discourse, and post-civil war commentary.  

 

The Supreme Court today emphasized that the Heller decision, informed by history, focused on the extremity of a ban on all handguns.  

 

The difficulty with judicial means-ends testing is that the enumerated rights within the Second Amendment removes decision making power from the government, including the courts.  Slip Op. at 14. 

 

With respect to enumerated rights, “the Supreme Court observed in Heller:   “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Heller, 554 U.S. at 634.  Judicial deference to legislative determinations in applying means-ends analysis overlooks, and in so doing overrides, the means-ends analysis the people already made in enumerating a Constitutional right.  Slip Op. at 17. 

 

Today’s opinion, without equivocation, makes clear that regulation of enumerate rights requires the government to prove that any action with respect to those rights is constitutional.  This will ordinarily call on history.  

 

The New York State Pistol and Rifle Ass’n decision does not shirk from undertaking the review of history that the Court today commended to the inferior appellate and trial courts.  

 

The Court’s review prompted the Court to conclude that prior to the Civil War, carrying firearms in public was regulated, sometimes included surety statutes that incentivized safety, and sometimes restricted carrying firearms provided carrying was generally permissible.  

 

The Court’s review did not find a home in history for New York’s imposition of a “proper cause” requirement:  law-abiding, ordinary citizens have not, historically, been precluded from carrying arms in public for self-defense.  Slip. Op. at 51.  Only a very few, ‘outlier’ laws and decisions would support New York’s position, and such laws and decisions, sometimes limited by the very transitory nature of the territories in which they were found, were not enough to counterbalance the overarching ordinariness of carrying arms for self defense.

 

Emancipation brought with it the recognition that all freed slaves must be able to access all rights enjoyed by others, a recognition often staunchly resisted in practice.  Yet this struggle, in the Court’s view, only underscored the importance of being able to bear arms for self defense.

 

The Court’s review compelled its conclusion that the state failed to meet its burden of finding a tradition that would justify the ‘proper cause’ requirement:  “The Second Amendment guaranteed to all Americans the right to bear commonly used arms in public subject to certain reasonable, well defined restrictions.”  Heller, 554 U.S. at 581.  

 

Valid restrictions include considering the intent accompanying carrying arms, the manner of carrying, or exceptions to carrying, such as before government officials.  Other than the outliers noted by the Court, governments have not required applicants for licensure to demonstrate a need for self defense that exceeds that of the public generally.  Slip Op. at 62. 

 

The Court stressed that the right to bear arms in public for self defense is not inferior to other rights, nor is the Second Amendment subject to rules not applicable to other guarantees in the Bill of Rights. No requirement exists that a citizen must demonstrate to a government a special need to exercise any such right.  Slip. Op. at 63.  

 

The “proper cause” requirement violates the Fourteenth Amendment as it inhibits citizens form exercising Second Amendment rights, the Court has concluded.  

 

Justice Alito wrote a separate concurrence in counterpoint to the dissent, observing that the dissent seems to have wandered afar from the determination that central to the Second Amendment is the right to self-protection, within or without the home.

 

Recitations of catastrophic events or crimes involving guns is immaterial to the Court’s core concern in this case, nor is judicial arrogation of analysis of an enumerated right by means-end analysis of utility where the core principle is a guarantee against government intrusion, including intrusion by the courts.

 

Justice Kavanaugh, with Chief Justice Roberts concurred in the Court’s perception that the text, history, and tradition test iterated in Heller and McDonald is to be applied in determining whether  order to understand the  government regulation impedes exercise of the Second Amendment right to carry guns for self-defense. 

 

The two concurring justices noted that the instant decision does not disturb any mandatory licensing schemes.  Those remain intact.  In this case the discretion conferred by New York’s statute unconstitutionally impairs, by demanding special justification, exercise of a guaranteed right to self defense.  

 

Recognition of the right to self defense by carrying a gun does not prohibit recognition that some persons and some settings preclude possession and carrying of guns nor does it preclude imposition conditions on sale of weapons.  Finally, the two justices noted that the opinion concerns weapons that were in use at the time the Second Amendment was adopted. 

 

Justice Barrett concurred separately to note that the Court left open and unresolved proper approaches to post-ratification practices as they bear on original meanings of the Constitution.  Of equal significance is the Court’s failure to resolve in this case whether courts ought to rely on understandings of an individual right at the time of the Bill of Rights or at the ratification of the Fourteenth Amendment.  Readers ought not take the opinion to endorse “freewheeling” references to history across the 19th century in order to understand the original meaning of the Bill of Rights. 

 

Justice Breyer, with Justices Sotomayor and Kagan, have dissented, lamenting the gun deaths that plague the United States.  The Court ought not to have opined in this case without a trial, without an opportunity to develop a record that would illustrate the state’s compelling need for regulation in order to prevent gun violence, or without consideration of the dangers of guns.  

 

The dissenters examine not only the perceived need to regulate gun carrying in an effort to restrain gun violence but also suggest, through the presentation of other historical views, that the majority’s review may have been incomplete.  

 

20-843 New York State Rifle & Pistol Assn., Inc. v. Bruen (06_23_2022)

Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries


Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  


The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)