In New York State Rifle & Pistol Association, Inc. v. Bruen (2022) the U.S. Supreme Court held with a 6-3 conservative majority that the Second Amendment encompasses the right to bear arms in public for self-defense. Moreover, for a modern firearm regulation to be constitutional, it must be “consistent with the Second Amendment’s text and historical understanding”. To prove this consistency, the government must demonstrate that its law conforms to the Nation’s historical tradition of firearm regulation by providing evidence of analogous historical legislation. Applying this history-tradition methodology, the Court struck down New York’s proper-cause firearm licensing law which demanded a firearm license applicant prove a “special need for self-protection distinguishable from that of the general community”. The Court found this requirement to be unconstitutional because it contradicted the historical tradition of the Second Amendment by effectively preventing ordinary people from carrying a gun in public for self-defense. The following blog text delves more deeply into the dissenting opinion written by Justice Breyer, with whom Justices Sotomayor and Kagan joined, in which this liberal minority argues that the Court’s decision is based on multiple major mistakes.
Breyer begins the dissent by arguing that the Court shouldn’t take away the ability to tackle the dangers of gun violence from democratically elected bodies. He explains that problems caused by firearms vary geographically and demographically and it takes local knowledge to find the best regulatory measures to combat these issues. To highlight the issues of unregulated guns, Breyer points out the disproportionately high gun ownership and gun violence rates in the US compared with the rest of the world.
Breyer then moves on to criticize Court for deciding the case based on pleadings without allowing for discovery or the development of an evidentiary record on the relevant facts of the case. Pleadings, such as briefs of the parties, tell nothing about how the New York’s law is applied on the grass-roots level. Therefore, the Court’s characterization of New York’s law as one that effectively prevents people from carrying guns in public for self-defense is based on insufficient evidence, claims Breyer. Moreover, Breyer chastises the Court for depriving New York of the chance to prove that its licensing scheme is consistent with the historical tradition of the Second Amendment. However, clearly in order not to undermine his own arguments, Breyer speaks nothing of an oral argument that the Court organized to form its view on the New York law.
In his next point of contention Breyer proceeds to harshly criticize the Court for not employing a so-called two-step test to determine the constitutionality of New York’s law. In this test a court will first find whether the regulated activity falls within the scope of the Second Amendment as informed by its text in the historical context. If yes, the court would then apply means-end scrutiny to weight between the governmental interests of the regulation and the individual rights at stake, and in this way decide if the regulation is justified. In Bruen, however, the Court rejects the means-end scrutiny part of this two-step test and instead requires the government to prove that its law is consistent with the Nation’s historical tradition of firearm regulation.
Breyer notes that the two-step test has not only been used by lower courts in Second Amendment cases but also by the Supreme Court in cases regarding other constitutional rights and this new history-only approach is therefore incomprehensible. Moreover, rejecting means-end scrutiny in Second Amendment matters is unfaithful to District of Columbia v. Heller, 554 U. S. 570 (2008) continues Breyer. In Heller the Court did reject a freestanding interest-balancing approach but explicitly contemplated traditional forms of means-end scrutiny in the Second Amendment context, such as strict or intermediate scrutiny. Breyer thinks that the New York law would have passed this kind of means-end scrutiny with ease. Lastly, Breyer challenges the practicality of this new history-only test since history may not be able to give answers to modern problems and lower courts don’t even have the resources to conduct such extensive historical analysis.
In the final section of his dissent, Breyer tries to prove that even in the eyes of this history-only test the New York law should be held constitutional. He conducts his own analysis of historical firearm regulations and finds plenty of legislation similar to the New York law. This history was, nonetheless, disregarded by the Court in its deliberations because, as Breyer puts it, the Court always found some arbitrary reason to discount the force of this historical evidence. Breyer seems to be rightfully puzzled as to what evidence is then needed to prove a regulation’s historical tradition if all these historical analogies that he found weren’t enough. Although Breyer’s historical analysis may not have had any effect on the Court’s judgement, if nothing else Breyer manages to highlight how unreliable and indecisive this history-only approach is.
Regardless of the correct methodological approach and true historical meaning of the Second Amendment, this case does well to demonstrate how much the political backgrounds of justices affect their views. The conservative majority and the liberal minority are deeply holed up in their ideological trenches and especially in this case they seem to disagree on pretty much everything. It is thus likely that this pro-gun rights and anti-regulation trend of the Court will continue for as long as the conservative majority prevails.
T. A. M. V.