On June 2022, the U.S. Supreme Court decided the case of New York State Rifle & Pistol Association v. Bruen. The case concerns the Second Amendment of the U.S. Constitution and the constitutionality of New York’s concealed carry licensing regime. This brief analysis is based on the majority Opinion of Bruen, and consists of the facts, decisive legal problems and arguments of the case. The text concludes with some observations of the Second and Fourteenth Amendment and the post-Bruen regulation of the State of New York.
In the State of New York it is a crime to possess any firearm without a license and open carry of handguns is completely banned. With a license, possessing a concealed handgun in public is permitted. In the context of the U.S., 43 States have ”shall issue” licensing laws for permitting a license to carry a handgun, while 6 States, including New York, are “may issue” jurisdictions. The former contains that authorities issue licenses whenever an applicant satisfies the statutory criteria. Contrary to this, the latter allows authorities to deny licenses even if an applicant satisfies the criteria. For instance, before Bruen, New York applied a “proper cause” standard, which was not defined in any statute.
The courts of New York have held that to fulfill the “proper cause”, an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community.” If an applicant could not prove this, the license for public carry could be issued only restricted, not unrestricted. This restricted license encompasses to carry a firearm only for a limited purpose, such as hunting or target shooting.
The petitioners of the case are New York State Rifle & Pistol Association and its two members. NYSRPA is a firearms advocacy organization which aims to secure the Second Amendment rights of New Yorkers. The members, Koch and Nash, are law-abiding, adult New York residents. The case originated from their applications for unrestricted licenses to carry a handgun publicly for self-defense which were denied by the State officials of New York. These officials, the respondents of the case, denied the unrestricted-license applications for reason Koch and Nash failed to fulfill the “proper cause” requirement.
According to the Second Amendment “– the right of the people to keep and bear Arms, shall not be infringed”. The parties dispute whether New York’s law infringes the constitutional right of individuals to carry handguns outside the home for self-defense. In other words, the denials of petitioners’ license applications were alleged to violate the rights conferred in the Second and Fourteenth Amendment. The Supreme Court granted certiorari to decide the case and limited the trial to the question: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”.
The petitioners of the case utilize a “text, history, and tradition” approach to argue that New York’s law, specifically its proper cause requirement, violates the Second Amendment. The respondents focused on demonstrating the consistency of New York’s proper cause requirement and Nation’s historical tradition of firearm regulation.
Despite the vast historical record of the American tradition provided by the respondents, the Court concluded that respondents failed to meet the burden to justify New York’s proper cause requirement. In principle, the Second Amendment grants a right to “all Americans” to bear arms in public. The requirement of law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” thus violates the constitutional right. The Court noted that the right to bear arms publicly for self- defense is not a second-class right when compared with the other rights enumerated in the Bill of Rights. There are no grounds for demonstrating any special need for self-defense to obtain the license.
After the Court declined to adopt previously applied “two-step” approach in Bruen, it emphasized the standard of applying the Second Amendment. This standard directs that when the plain text of the Second Amendment covers an individual’s conduct, the Constitution shall protect that conduct. In Bruen, the Second Amendment’s plain text guarantees Koch and Nash a right to bear arms publicly for self-defense. It follows that New York’s regulation must be consistent with the Nation’s historical tradition of firearm regulation.
Studying Bruen in more detail, one can notice that the Court applies the doctrine of “incorporation”. The Second Amendment, as a part of the Bill of Rights, was originally directed to Federal Government, not against the States. The historical method the Court applies in Bruen, leads to the observation that New York is actually bound to respect the right to keep and bear arms, not because of the Second Amendment, but the Fourteenth Amendment instead. The Court stated that through the Fourteenth Amendment, the Second Amendment right made applicable against the States. The Court ruled that New York’s proper cause requirement violated the Fourteenth Amendment by preventing law-abiding citizens exercising their Second Amendment right to keep and bear arms in public for self-defense.
The 6-3 decision was in favor of the petitioners and struck down the New York law. After the law was invalidated in Bruen, New York has enacted legislation as a counterbalance to the altered circumstances. However, the new statute of New York has been claimed to attempt to circumvent the decision, for instance, by expanding the scope of “sensitive places”. In sensitive places carrying a firearm is prohibited, regardless of a person possesses a valid license or not. The reform will probably raise questions whether Bruen has already been overruled by the new statute of New York and lead to further discussions.
T. A. M. V.