It is said that the Old Testament has so many commandments you get a new one for each day of the year. The United States is like that, only with mass shootings instead of religious decrees. According to the statistics of the Gun Violence Archive, in 2022 there were 647 reported mass shootings in the U.S. Almost two shootings per day on average. The total number of gun-related deaths last year was 44 290. More than a half of these were suicides, and the rest were homicides, murders, incidents of defensive gun use and unintentional deaths.
Considering the statistics, it is easy to see why Americans are keen on making their communities safer. How could they not, when they live in a country, where people can’t be sure if their children come back home from school alive or dead. Nevertheless, there are deep and divisive differences in thought regarding guns, and consensus is hard to reach. Some proudly proclaim that if you threaten them or trespass on their land, they will not call 911. Come and take it, they reply, when gun control measures are proposed. On the opposite side of the debate, people don’t believe gun ownership to guarantee freedom and personal safety. Rather, they see that it creates an environment of fear and an ample soil for gun violence. They don’t think that the only way to stop a bad guy with a gun is a good guy with a gun – instead, it is preventing the bad guy from legally obtaining the weapon in the first place. In terms of black-and-white thinking, people want to reduce harm by either restricting gun use or enabling people to have more access to them.
This is the cultural context of New York State Rifle & Pistol Association v. Bruen, a Supreme Court judgment from June 2022. The question of the case was if the State of New York’s denial of petitioners’ concealed carry licence applications violated the Second Amendment by requiring that applicants demonstrate a special need for self-defence. The Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. The right to keep arms and defend the lives of yourself and others, as well as property, is well-established in the sphere of home. In Bruen, the Second Amendment is examined in the aspect of bearing arms outside of that sphere.
The aim of this blog text is to analyse the argumentation used in the brief for petitioners’ and shine light on the ideology behind them. The main argument of the brief is that the Second Amendment protects the right to carry arms outside a person’s home for the purpose of self-defence, because the text of the Second Amendment guarantees the right to bear arms as well as keep them, and that history and tradition supports the right to carry weapons for self-defence. Because of this, the petitioners conclude that New York’s legislation violates their constitutional rights.
Historical argumentation starts with English law and argues that the right to carry in public for the sole purpose of self-defence was a historically recognised right and that it has been an accepted practise for over a hundred years. Naturally, notable founding fathers are mentioned, as well as their support for carrying firearms. The right to carry arms for self-defence is argued to have been viewed as an individual right in the early Republic, and the brief notes that men in militia duty were expressly required to carry arms. Indeed, this individual right is said to continue to the reconstruction era and to the present day. The most cited recent precedent is District of Columbia v. Heller, with McDonald v. Chicago being also used to validate that self-defence as a recognised purpose of carrying arms.
When historical gun control measures are brought up, it is with distinction that the bans often targeted the use of weapons in a dangerous manner and as a means to terrify people. Therefore, the laws did not interfere with what was considered as usual carrying. The narrative of the brief is that carrying guns has always been part of the American everyday life, a societal norm. The “few decisions”, which suggested that the right to carry isn’t a constitutional one, are described to be based on erroneous premises. Moreover, gun control legislation is framed in a racist context. Legislation from such times as antebellum South, abolition of slavery and 20th century immigration are used as examples of gun control laws being used to disenfranchise minorities. The present law is implied to have effects which deprive constitutional rights in a similar way.
A key idea behind the arguments reflects classic liberalism: the government should not involve itself it the life of the nation’s citizens unnecessarily, and it should refrain from restricting their rights as much as possible. From the second page onward, the argumentation describes the discretion of licencing officers as broad, later calling it highly discretionary and “practically unreviewable”. According to the brief, the practise is selective and those who are able to obtain a concealed carry licence are often a “celebrity or well-connected individual”. The requirement of showing a proper cause to the licencing officers and their discretion are viewed as a direct contradiction to the core of the Bill of Rights, which is to protect individuals from government officials’ arbitrariness. The Bill of Rights is an assurance that the government won’t extend its reach to areas in which the decision-making power relies on the individual. The brief paints the picture of individuals as underdogs. Indeed, allowing citizens to carry for self-defence is viewed as protecting the little man, without the big, bad government infringing on the people’s inherent right.
How accurate is the notion that gun control laws are merely deviations from the norm? Have citizens truly been allowed to carry arms with little to no government involvement? The interpretations put forward in the brief are very debated in the academia. Ultimately, they were convincing enough for the petitioners to win their case. With 6-3 votes, the Supreme Court ruled New York’s requirement of showing a proper need for self-defence to be unconstitutional. In the future, Bruen will affect the constitutionality of gun control laws and thereby affect how easy it will be to carry guns in public. I anticipate that the arguments of the brief may be used again, for example if the Supreme Court were to rule on the prohibitions of open carry.
T. A. M. V.