Chemerinsky: Supreme Court gun ruling puts countless firearms regulations in jeopardy
Erwin Chemerinsky. Photo by Jim Block.
It was no surprise that the U.S. Supreme Court declared unconstitutional the New York law limiting concealed weapons in public. Given the ideological composition of the court and the tenor of the oral argument in the case, that result was expected. The surprise was how the court did this, providing greater protection for Second Amendment rights than virtually any other in the Constitution.
Although the actual holding was narrow in New York State Rifle & Pistol Association v. Bruen, the approach to Second Amendment cases prescribed by the court will have enormous implications for gun regulation in the United States.
The history of the Second Amendment in the Supreme Court
The Second Amendment says, “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.” From 1791 until 2008, the Supreme Court never once declared unconstitutional any law—federal, state or local—as violating the Second Amendment. In the handful of cases about the provision, the court said it was just about a right to have guns for militia service.
In June 2008, in District of Columbia v. Heller, the court for the first time declared a gun regulation unconstitutional and struck down a District of Columbia ordinance prohibiting ownership or possession of handguns. The decision was split, 5-4, with Justice Antonin Scalia writing the opinion for the court. He said the first half of the Second Amendment, about militias, was the “prefatory clause,” and the latter half was its operative clause protecting a right of the people to keep and bear arms. He said a prefatory clause cannot limit the meaning of an operative clause.
The court held that the Second Amendment protects a right to have guns in the home for the sake of security. Although it did not prescribe a level of scrutiny, the court made clear the Second Amendment is not absolute. It said the government can regulate who has guns, such as keeping those with a felony conviction or a history of serious mental illness from having them. Also, the government can limit where people have guns, such as prohibiting them near schools or government buildings. And the government can prevent people from having especially dangerous weapons.
Two years later, in McDonald v. City of Chicago (2010), the Supreme Court held, again 5-4, that the Second Amendment applies to state and local governments. Because the District of Columbia is a part of the federal government, it took a separate decision to hold that the Second Amendment is incorporated into the due process clause of the 14th Amendment and applies to state and local governments.
New York State Rifle & Pistol Association v. Bruen
Prior to this case, there had been no Supreme Court decisions about the Second Amendment for the last 12 years, a time during which the composition of the court changed greatly and it became much more conservative. New York State Rifle & Pistol Association v. Bruen involves a New York law, initially adopted in 1911, that prohibits having handguns in public without a permit. If a person wants to carry a firearm outside the home or place of business for self-defense, the applicant must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” To secure that license, the applicant must prove that “proper cause exists” to issue it. New York courts have interpreted this to require that a person “demonstrate a special need for self-protection distinguishable from that of the general community.”
The court noted that New York was one of six states with a law requiring a person to demonstrate a need for a concealed weapon to have a permit allowing this in public. By contrast, 43 states have laws the court described as “shall issue” jurisdictions, “where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.”
In a 6-3 decision, with the majority opinion written by Justice Clarence Thomas, the court declared the New York law unconstitutional. For the first time in American history, the court was explicit that “the Second and 14th Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” The court held that state laws are unconstitutional if they restrict having concealed weapons to those who show cause.
Justice Brett Kavanaugh, in a concurring opinion, said that is all the court held. But Justice Thomas’ opinion, which was joined by five justices including Kavanaugh, went much further in specifying when the government can regulate guns.
Most circuits had adopted a two-step approach to evaluating gun restrictions. At the first step, the government could justify a regulation of firearms by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” But if the historical evidence is “inconclusive or suggests that the regulated activity is not categorically unprotected,” courts would proceed to step two and analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” Many characterized this as a form of intermediate scrutiny.
The court in Justice Thomas’ opinion expressly rejected this, saying, “we decline to adopt that two-part approach.” The court said judges applying it and intermediate scrutiny have given too much deference to legislative regulation of guns.
When the court deems a right fundamental and wants more than intermediate scrutiny, it adopts strict scrutiny, requiring that the government action be necessary to achieve a compelling interest. But that is not what the court did in Bruen. Instead, the court said a gun regulation is constitutionally permissible only if it was historically allowed. The court declared: “To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
The court expressly rejected any balancing of the government’s interests in regulating guns with a claim of Second Amendment rights. Justice Thomas wrote, “the Second Amendment is the very product of an interest balancing by the people and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.”
Several times in the majority opinion, the court stressed that government regulation of guns is allowed only if it was historically permitted. The court was unclear, and Justice Amy Coney Barrett raised this in a concurring opinion, as to how to determine what was historically done and whether the focus should be only what was allowed in 1791 or whether it also should look to practices in 1868, when the 14th Amendment was adopted.
Justice Thomas said from either perspective, the New York law is unconstitutional. He undertook a detailed review of the history of regulating concealed weapons in public and concluded that it did not support the New York law.
Justice Stephen Breyer wrote the dissenting opinion joined by Justices Sonia Sotomayor and Elena Kagan. He began by describing the problem of gun violence in the United States: “In 2020, 45,222 Americans were killed by firearms. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day.” He pointed to studies that laws such as New York’s, which limit concealed weapons in public, make a difference in reducing gun deaths. For example, a study examining the 33 states that adopted laws requiring issuance of concealed weapons permits between 1981 and 2007 and found that the “adoption of those laws was associated with a 13%–15% increase in rates of violent crime after 10 years.”
The dissent criticized the refusal of the majority to apply even strict scrutiny. Justice Breyer wrote: “it refuses to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest. Although I agree that history can often be a useful tool in determining the meaning and scope of constitutional provisions, I believe the court’s near-exclusive reliance on that single tool today goes much too far.”
The dissent argued that history, with inconsistent traditions and practices, is often unclear. Justice Breyer recited at length the long history of regulating concealed weapons, which would support the New York law. He lamented that the court “gives the lower courts precious little guidance regarding how to resolve modern constitutional questions based almost solely on history.” He feared “that history will be an especially inadequate tool when it comes to modern cases presenting modern problems.”
New York State Rifle & Pistol Association v. Bruen is, by far, the most expansive reading of the Second Amendment in American history, and its approach will put countless laws regulating firearms in serious jeopardy. The court’s approach holding that the government cannot succeed even if it meets strict scrutiny unless the regulation was historically allowed is stunning and provides more protection for gun rights than virtually any other in the Constitution.
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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
The initial version of this story should have stated that the 14th Amendment was adopted in 1868.
The Journal regrets the error.