Right to carry: Supreme Court brings Second Amendment to the streets
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Austin, Texas; Savannah, Ga.; and New York
In its biggest Second Amendment ruling in over a decade, the U.S. Supreme Court today said that Americans have a right to carry a handgun in public.
As it enters the final week of a controversial term – the court is expected to push federal law to the right in a number of areas, including abortion and climate regulation – the ruling in this closely watched case significantly expands gun rights. Delivered along the high court’s ideological divide, the decision also comes a month after a mass shooting at a Texas elementary school left 21 people, including 19 children, dead – a fact not lost on the dissenting justices.
Today’s ruling continues a throughline in America toward prioritizing Second Amendment rights for individuals. Half of U.S. states have adopted permitless carry or constitutional carry, which offers few, if any, restrictions on purchasing or carrying a handgun. Americans purchased a record number of guns – 23 million – in 2020 during the pandemic. There are an estimated 400 million guns in a country of 332 million people, or 120 guns per 100 residents.
Why We Wrote This
The Supreme Court’s ruling Thursday underscores just how dramatically Second Amendment jurisprudence has shifted in recent decades.
The country has continued to wrestle with how to reduce gun deaths, which also reached a record high in 2020, at a time when firearms have proliferated and the Second Amendment has become a top priority among conservatives. The ruling comes the same week that the first gun safety bill in roughly 25 years is making its way through the Senate with bipartisan support.
The 6-3 ruling in New York State Rifle & Pistol Association v. Bruen strikes down a New York regulation requiring individuals to have “proper cause” to carry a handgun outside the home. State licensing officials decided what qualifies as proper cause. Six other states have similar rules, which the court said today do not pass constitutional muster.
“We now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” wrote Justice Clarence Thomas in the court’s majority opinion, citing the court’s two most recent gun cases.
Those decisions – District of Columbia v. Heller in 2008, and McDonald v. Chicago in 2010 – established an individual right to keep a handgun in the home, and applied that right to state and local laws, respectively. Today’s decision extends that right further, albeit with some restrictions that the court specifically outlines.
The outcome was not a surprise to watchers of the court and its conservative supermajority.
“Anybody who says they’re surprised hasn’t been keeping up,” says Michael Lawlor, a criminal justice professor at New Haven University, who co-sponsored the nation’s first red flag law in Connecticut in 1999.
He does add, however, that “the ruling makes a point to say that states can have reasonable rules, including limiting firearms in sensitive places like schools, airports, and things like that.”
The ruling won’t impede action on federal gun control measures like the bipartisan bill, or all state efforts to limit who can carry guns and where, he believes. But those kinds of policies are now, in his view, arguably more urgent.
“The country at the moment is flooded with guns,” he says. “There are way more guns in circulation than there are responsible gun owners. The goal of public policy should be to narrow that gap.”
In 2020, there were a record 45,222 gun-related deaths in the United States, according to the Pew Research Center. Of these, 54% were suicides and 43% were murders. Per capita, this represents 13.6 gun deaths per 100,000 people – still less than the peak number of 16.3 gun deaths per 100,000 people in 1974.
In a concurrence to today’s ruling, Justice Brett Kavanaugh and Chief Justice Roberts specified that it only applies to the gun restrictions in six states with laws similar to New York’s. Those happen to include the states with the nation’s lowest rates of gun deaths: Massachusetts, with 3.7 deaths per 100,000 people; and Hawaii, with 3.4, as well as Rhode Island, New Jersey, and California, plus the District of Columbia.
SOURCE: Giffords Law Center
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Jacob Turcotte/Staff
New York has long had one of the lowest rates of gun fatalities in the nation, with a rate of 5.3 gun-related deaths in 2020. The state with the highest rate was Mississippi, with 28.6 deaths per 100,000 people, followed by Louisiana (26.3) and Wyoming (25.9).
History’s role going forward
In 2008, the Supreme Court significantly changed its interpretation of the Second Amendment. In the 5-4 ruling in Heller, the majority determined for the first time that the Constitution protects an individual right to keep a handgun in the home. The decision provoked a torrent of unanswered questions, including how governments can regulate firearm ownership. In scrutinizing those policies in the years since, lower courts have coalesced around a two-step framework combining historical analysis with a determination of whether a policy achieves a compelling or important government interest.
Today’s ruling cuts that framework in half.
“Despite the popularity of this two-step approach, it is one step too many,” wrote Justice Thomas.
“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,’” he added.
While the decision is relatively limited, in terms of seven states being immediately affected, the shift in how courts must now interpret gun policies is hard to overstate, says Joseph Blocher, co-director of the Center for Firearms Law at Duke University Law School in Durham, North Carolina.
“Substantively the case is relatively narrow, but methodologically it is enormously broad,” he says.
Deciding Second Amendment cases purely on the basis of history and tradition is “going to involve a whole lot of judicial intuition and discretion and lack of transparency,” he adds.
“Now lower courts have to evaluate whether a city or state can prohibit guns in a day care center, for which there is no rich historical record,” he continues. “We’re in for a lot of open questions on what is constitutional.”
The majority does state that there are limits on the right to bear arms. It is “settled,” for example, that people can’t carry firearms in “sensitive places” like courthouses and polling places, wrote Justice Thomas.
Courts can determine “new and analogous sensitive places are constitutionally permissible” based on history, he continued. But expanding the definition of sensitive places “to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”
In his dissent, Justice Stephen Breyer – joined by the two other members of the court’s liberal wing – highlighted the questions that interpretive method leaves unanswered. “Where does that leave the many locations in a modern city with no obvious 18th- or 19th-century analogue? What about subways, nightclubs, movie theaters, and sports stadiums?” he asked. “The Court does not say.”
“As technological progress pushes our society ever further beyond the bounds of the Framers’ imaginations, attempts at ‘analogical reasoning’ will become increasingly tortured,” he continued.
The Supreme Court’s ruling in Bruen underscores just how dramatically Second Amendment jurisprudence has shifted in recent decades.
“When I started writing about this stuff in the ’90s, you were laughed at for making the argument that the Second Amendment is the right of an individual to own a firearm,” says Glenn Reynolds, a professor at the University of Tennessee College of Law.
“Now conventional wisdom has turned around to the point where [that individual right] commands two-thirds of the Supreme Court,” he adds. “I always tell my students, it is amazing how much power the force of ideas have in the world.”
What next for gun control debate
The Bruen decision has arrived as America’s gun control debate has reached a particularly heated moment. As Congress moves closer to passing the first package of federal gun regulations in a quarter century, the nation is still processing recent mass shootings in Uvalde, Texas; and Buffalo, New York, the latter of which killed 10 people.
Justice Breyer opened his dissent by noting that 45,222 Americans were killed by firearms in 2020, and that gun violence “has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents.” Later, he listed nine high-profile mass shootings from the past 10 years.
Some of his colleagues downplayed or dismissed that statistical and anecdotal context.
In a footnote, Justice Thomas responded with a quote from the 2010 McDonald opinion that the right to bear arms “is not the only constitutional right that has controversial public safety implications.”
In a separate concurrence, Justice Samuel Alito questioned the relevance of statistics on mass shooting events, suicides by firearms, and the use of guns in domestic disputes. The New York law at issue “obviously did not stop that perpetrator” of the Buffalo shooting, he wrote. “There can be little doubt that many muggers and rapists are armed and are undeterred” by the New York law, he added.
The link between gun control policies, or the lack thereof, and gun violence is tenuous. But the states that will likely be directly affected are also those with some of the country’s lowest rates of gun deaths.
This context was at the forefront of criticism of the Bruen opinion today. President Joe Biden said in a statement that he was “deeply disappointed” in the ruling.
The decision “contradicts both common sense and the Constitution, and should deeply trouble us all,” he added. “In the wake of the horrific attacks in Buffalo and Uvalde, as well as the daily acts of gun violence that do not make national headlines, we must do more as a society – not less – to protect our fellow Americans.”
In his own statement, New York Mayor Eric Adams promised to do just that.
With steps including a review of how the city defines “sensitive locations,” he said New York “will work together to mitigate the risks this decision will create once it is implemented.”
The Bruen decision “may have opened an additional river feeding the sea of gun violence, but we will do everything we can to dam it,” he added. “We cannot allow New York to become the Wild West.”
The reaction from New York so far seems to preview where the gun policy debate will now move.
The Bruen ruling today “is going to force, very much against their will, states that have discretionary issue like New York to change their ways,” says Professor Reynolds. “I expect there will be a campaign of massive resistance to that, which will probably require further enforcement” from the Supreme Court.
However it unfolds from here, more than a decade since its last examination of the Second Amendment, the Supreme Court has once again transformed the debate over American gun policies.
“It’s a monumental decision,” says Richard Aborn, president of the Citizens Crime Commission of New York City.
“It’s the first time in the history of the United States that a court has ruled that there’s an individual right to carry a concealed firearm,” he adds. “It doesn’t get much bigger than that.”