SCOTUS Strikes Down NY Gun Law

The 6-3 ruling broke down on predictable lines.

Robert Barnes and Ann E. Marimow, WaPo (“Supreme Court finds N.Y. law violates right to carry guns outside home“):

The Supreme Court said Thursday that law-abiding Americans generally have a right to carry a handgun outside the home for self-defense, striking down a New York law requiring a special need for such a permit and putting at risk similar laws in five other states.

The court’s decision clears the way for legal challenges to similar restrictions in Maryland, California, New Jersey, Hawaii and Massachusetts. It follows recent mass killings in Buffalo and Uvalde, Tex., horrifying acts of violence that spurred Congress to advance bipartisan legislation strengthening federal gun laws.

Thursday’s vote was 6 to 3, with Justice Clarence Thomas writing for the majority and the court’s three liberals in dissent.

“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,’ ” Thomas wrote, referring to a previous Supreme Court ruling. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

He was joined by the court’s conservatives: Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

In dissent, Justice Stephen G. Breyer pointed to the nearly 300 mass shootings since January and to data showing that gun violence has surpassed car crashes as the leading cause of death among children and teens. The majority’s decision, he said, will make it more difficult for state lawmakers to take steps to limit the dangers of gun violence.

The Second Amendment allows states to “take account of the serious problems posed by gun violence,” wrote Breyer, who was joined by Justices Sonia Sotomayor and Elena Kagan. He added: “Many States have tried to address some of the dangers of gun violence … by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so.”

Adam Liptak, NYT* (“Supreme Court strikes down New York law limiting guns in public.“):

The Supreme Court on Thursday struck down a New York law that placed strict limits on carrying guns outside the home, saying it was at odds with the Second Amendment.

The ruling was only the court’s second major statement on the scope of the individual constitutional right to keep and bear arms and its first on how the right applies to firearms in public places. The Second Amendment, Justice Clarence Thomas wrote for the majority, protects “an individual’s right to carry a handgun for self-defense outside the home.”

Jess Bravin, WSJ (“Supreme Court Strikes Down New York Concealed-Gun Law in Sweeping Decision“):

The Supreme Court struck down New York state’s system for issuing concealed-weapons permits, ruling that the century-old law requiring that applicants demonstrate “proper cause” and “good moral character” violates the Second Amendment.

The 6-3 decision in the case, New York State Rifle & Pistol Association Inc. v. Bruen, marks the widest expansion of gun rights since 2010, when the court applied nationwide a 2008 ruling establishing an individual right of armed self-defense within the home. It puts in question similar laws in at least eight other states and the District of Columbia, where authorities hold substantial discretion over issuing concealed-weapons permits.

SCOTUSBlog’s Amy Howe (“In 6-3 ruling, court strikes down New York’s concealed-carry law“) provides additional context:

Going forward, Thomas explained, courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history

The state law at the heart of New York State Rifle & Pistol Association v. Bruen required anyone who wants to carry a concealed handgun outside the home to show “proper cause” for the license. New York courts interpreted that phrase to require applicants to show more than a general desire to protect themselves or their property. Instead, applicants must demonstrate a special need for self-defense – for example, a pattern of physical threats. Several other states, including California, Hawaii, Maryland, Massachusetts, and New Jersey, impose similar restrictions, as do many cities.

The lower courts upheld the New York law against a challenge from two men whose applications for concealed-carry licenses were denied. But on Thursday, the Supreme Court tossed out the law in an ideologically divided 63-page opinion. 

Although U.S. history has at times placed some “well-defined restrictions” on the right to carry firearms in public, Thomas explained, there was no tradition of a broad prohibition on carrying commonly used guns in public for self-defense. And with rare exceptions, Thomas added, there was no historical requirement that law-abiding citizens show the kind of special need for self-defense required by the New York law to carry a gun in public. Indeed, Thomas concluded, there is “no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

This outcome was obviously predictable in light of Heller. Once we accept the premise that the 2nd Amendment guarantees a personal right to possess firearms, then it simply stands to reason that said right would be as sacrosanct as other Constitutional protections. (Then again, the 4th Amendment’s protections against unreasonable search and seizure and the 5th Amendment’s protection against self-incrimination have been interpreted less enthusiastically.)

Still, even if we accept that the right to bear arms is a “fundamental right,” that doesn’t mean it’s unregulable. There is no more fundamental right than the 1st Amendment’s guarantee of freedom of speech and yet the courts have long allowed various “time, place, and manner” restrictions to serve various countervailing public interests. Even if we apply a “strict scrutiny” standard to gun laws, there’s surely a “compelling governmental interest” in ensuring the safety of the public. For example, at least since the 1994 bombing of the Federal Center in Oklahoma City, we’ve screened people for guns going into courthouses and other public buildings. And, as for historical precedents, even in the Wild West, there were broad prohibitions on people carrying around firearms in town.

That said, I would prefer laws that aimed at keeping firearms out of the hands of people likely to be dangerous—including those untrained in their use—rather than requiring people to demonstrate a particular need to be armed. That would seem to more easily meet the strict scrutiny threshold, as it would be more narrowly tailored to the public interest.

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*In a move this subscriber finds both baffling and distressing, the NYT has increasingly turned to a live blogging format for major stories on its website. It’s not the least bit useful.

FILED UNDER: Guns and Gun Control, Law and the Courts, Supreme Court, , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Gavin says:

    Thomas citing Taney unironically is the chef’s kiss.

    They’re well into just plainly making it up as they go along. Of course, logic doesn’t matter — they seized power and will use it until it’s taken away.

    The fun never stops with these wingnut activist judges.

    5
  2. grumpy realist says:

    Which means we can’t close the “boyfriend” loophole in the red flag law, I guess….

    And there’s no reason we shouldn’t be able to carry guns onto aircraft either, right?

    6
  3. Mister Bluster says:

    My understanding is that the owners of private property may prohibit the possession of firearms on their premises.
    Does this ruling change that?

    2
  4. Kathy says:

    @grumpy realist:

    And there’s no reason we shouldn’t be able to carry guns onto aircraft either, right?

    I expect that restriction to go soon. Along with prohibitions of carrying guns into private property, government buildings, etc. About the only place where people won’t be able to carry a gun will be NRA conventions.

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  5. MarkedMan says:

    The most important thing that this ruling overturns is Justice Robert Jackson’s famous dictum: “The C0nstitution is not a suicide pact”. If you have any doubts about that, just look at this chart.

    2
  6. Just nutha ignint cracker says:

    Just think of this as the first step in testing Doc Holliday’s (?) maxim that an armed society is a polite one.

    My vote is that the experiment will result in a rejection of the hypothesis.

    4
  7. gVOR08 says:

    @Kathy:

    About the only place where people won’t be able to carry a gun will be NRA conventions.

    And the Supreme Court.

    4
  8. Just nutha ignint cracker says:

    @Kathy: “About the only place where people won’t be able to carry a gun will be NRA conventions.”

    Sure, but only while FG (and the next FG, and the one after him, and…) is there.

    1
  9. Jc says:

    That said, I would prefer laws that aimed at keeping firearms out of the hands of people likely to be dangerous

    to me anyone walking around with a firearm could be considered “likely to be dangerous”. Probably greater than 50% of existing gun owners are likely to be dangerous. A gun itself is likely to be dangerous. Put it in the hand of a trained individual and we still see it can be dangerous. I am going to start a 3rd amendment cult, I mean it was 3rd, so it has to be really relative to today and just as important as it was back then…, right? Crazy what we cling to

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  10. DK says:

    This ruling will increase crime, gun violence, and killings.

    The media and ‘suburban parents’ will keep blaming Democrats for those, instead of our Apartheid Court’s radical Republican extremists.

    11
  11. Kathy says:

    @Jc:

    The 3rd amendment may become relevant in the upcoming civil war, especially in flyspeck towns no one’s ever heard about which become crucial battle sites in drawn-out conflicts.

  12. gVOR08 says:

    @Jc: My personal observation is that the people I’ve known who wanted guns were the ones I’d least trust around me with one. In fact I’d say we should apply a Catch 22. Wanting to have a gun is evidence you shouldn’t have it.

  13. Beth says:

    @Mister Bluster:

    My understanding is that the owners of private property may prohibit the possession of firearms on their premises.
    Does this ruling change that?

    I would say that’s dead, shot if you will.

    All I’m left with is jokes. Cause that’s how I deal with being afraid.

    2
  14. CSK says:

    @Just nutha ignint cracker:
    I think Trump is more afraid of having pies and fruit thrown at him.

    1
  15. CSK says:

    @gVOR08:
    Once knew a guy who was desperate, absolutely desperate to become a cop, because he had fantasies of shooting someone.

    He repeatedly flunked all the psych exams to become a cop.

    3
  16. OzarkHillbilly says:

    @Mister Bluster: Not on my land.

    1
  17. OzarkHillbilly says:

    That said, I would prefer laws that aimed at keeping firearms out of the hands of people likely to be dangerous

    I’m a gun owner James. I have a couple 12ga shotguns a bolt action .30-06, a .22 and a couple revolvers. I have been around guns most all my life and the one point I always bring up with other gun owners is, “We all know somebody who has no business owning a gun. And if you don’t? You need to take a long hard look in the mirror.”

    Every dawg damned sensible gun owner I bring this point up with, nods their heads in agreement. The ones who don’t? Don’t spend a whole lot of time looking in mirrors.

    If you want to make laws that keep guns out of the hands of dangerous people, you have to start by saying, “Prove that you are not a danger to others.” And any person who wants to carry a gun for no reason other than, “You never know…” is demonstrating they are a danger to others.

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  18. OzarkHillbilly says:

    @CSK: But he passed the gun owners test with flying colors, didn’t he?

    1
  19. steve says:

    Congress needs to pass a law allowing guns to be carried by everyone in courthouses, especially SCOTUS. Bunch of GD pussies cant even have people demonstrating near the court. Some guy just thinks about harming one of them and they need special protection. The rest of us? Too bad, we arent judges.

    Steve

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  20. OzarkHillbilly says:

    @steve: Sucks to be the hoi polloi.

    1
  21. Bob@Youngstown says:

    Of course states can establish their own definition of “sensitive places”.

    Proposed definition: A sensitive place is anywhere more than two persons have gathered.

    If the pistol packing gang doesn’t like it, they can sue.

    1
  22. CSK says:

    @OzarkHillbilly:
    Unfortunately…yes.

  23. Kevin McKenzie says:

    If there can be free speech zones, and you need permits to protest, I don’t know why you shouldn’t need permits to open carry, so you aren’t shutting down downtowns like the nut job in Tulsa a few days ago. Because ultimately, that’s what this means. Those with guns win, which is what we created society to prevent.

    4
  24. Jay L Gischer says:

    You know, for over 200 years, the 2nd Amendment was not selectively incorporated to apply to State law. So much for tradition and precedent, even very long-standing precedent.

    These are not conservatives. They are radicals.

    4
  25. Kathy says:

    Does Disney allow guns in their parks?

  26. Jen says:

    I hope anyone in favor of sensible restrictions treats this ruling the same way anti-abortion zealots treated Roe: keep passing legislation that chips away at it. Over and over.

    They want to pack heat anywhere and everywhere, force them to defend it repeatedly.

    4
  27. Scott F. says:

    That said, I would prefer laws that aimed at keeping firearms out of the hands of people likely to be dangerous—including those untrained in their use—rather than requiring people to demonstrate a particular need to be armed.

    I’m thinking I need to report every single individual I notice carrying to the police. Certainly so if I should see them in a public space where I am. I would advise all private business owners I know to do the same. Because there’s no way we can know those people aren’t “likely to be dangerous” until we learn they are dangerous and then it is too late. No one should have to accept that risk, so we should stop them all – whenever they carry wherever they are – to confirm they aren’t dangerous as a precaution.

    The cops have more important things to do, but SCOTUS has given me no other choice.

    2
  28. Michael Reynolds says:

    If you buy an assault rifle you are hoping to kill a human being. Full stop.

    4
  29. Raoul says:

    Owning a gun to protect your home is vastly different than carrying a gun in public, so no, one does not lead to the other.

    1
  30. Just nutha says:

    @Michael Reynolds: Speaking only for myself, shooting someone is the only reason I would own any firearm.

  31. James Joyner says:

    @Jay L Gischer: That’s only technically true. In Presser v. Illinois (1886), the Court observed that because “all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States,” the “States cannot, even laying the constitutional provision [aside], prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.” This actually predates the establishment of the incorporation doctrine. (See this CRS report for more background.

  32. James Joyner says:

    @Scott F.:

    Because there’s no way we can know those people aren’t “likely to be dangerous” until we learn they are dangerous and then it is too late. No one should have to accept that risk, so we should stop them all – whenever they carry wherever they are – to confirm they aren’t dangerous as a precaution.

    While I don’t love the idea of yahoos going around packing, a yahoo with a pistol in a visible holster is likely less dangerous than a guy doing concealed carry. If the guy is up to something, he’s likely not advertising.

  33. wr says:

    @Kathy: “About the only place where people won’t be able to carry a gun will be NRA conventions.”

    Oddly, the SC had no problem with limiting the First Amendment when Republicans started caging protestors into “free speech zones,” or whatever they were called. But Thomas’ argument here is that laws are mean to the Second Amendment and try to regulate it in a way they never would any other amendment.

    1
  34. Scott F. says:

    @James Joyner:

    While I don’t love the idea of yahoos going around packing, a yahoo with a pistol in a visible holster is likely less dangerous than a guy doing concealed carry. If the guy is up to something, he’s likely not advertising.

    With the SCOTUS decision, I now have to suspect everyone for my own safety, don’t I. The open carry yahoos are potentially dangerous due to their need to flaunt their gun fetish. For everyone else with so much as a bulge in their clothing, it’s Stop & Frisk. The Fourth Amendment is in the Bill of Rights, too, but I would demand a loosening of requirements for probable cause now that SCOTUS has made it easier for anyone to hide their dangerousness with concealed carry.

    I didn’t make the new rules, Clarence Thomas did.

    1
  35. Paul L. says:

    @Raoul: “Owning a gun to protect your home is vastly different than carrying a gun in public, so no, one does not lead to the other.”
    Democrat talking point: Guns should be insuranced, registered and licensed like cars.
    what Democrats leave out: Only for public roads, You can drive a car on your private property without registration, insurance or inspection.