The Left overreacts to a sensible ruling
The second-most anticipated Supreme Court case of the term was handed down today in New York State Rifle & Pistol Association v. Bruen, a decision that — as the title suggests — concerned the limits of Second Amendment rights. As expected, the court struck down a restrictive New York state law concerning the right to carry arms outside the home, bringing it and a few other states more into line with general American practice and modern Second Amendment jurisprudence.
The 6-3 decision by Justice Clarence Thomas broke down along the predicted lines, with the six conservatives opposing the three liberals on the court, roughly following the battle lines drawn in the earlier Second Amendment cases of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).
The law in question was New York’s “may issue” statute on the issuance of carry permits. “May issue” laws, which prevail in six American states, hold that people may obtain such licenses when they demonstrate a “proper cause” for having them — a subjective need that the applicant must demonstrate to the satisfaction of a judge or law enforcement officer. “Shall issue” laws, in place in 43 other states, allow anyone who meets the objective legal criteria to be granted such a permit.
The court held that New York’s vague requirement was inconsistent with the Second Amendment, which not only protects the right to keep arms, but also to bear them. “To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections,” Thomas wrote for the court.
Bruen is a natural extension of Heller and McDonald, which established that the Second Amendment did protect an individual right to have a gun in the home. As in those cases, the court purposely based its ruling today on text and history, not on any “judge-empowering interest-balancing inquiry”. Where a law’s restriction is contrary to the text of the Constitution and historical practice in which that text is grounded, it must fail.
After a lengthy examination, the court concluded that New York’s law was inconsistent with the constitutional text and historical practice, and thus unconstitutional. This, they ruled, trumps the government’s claimed interest in restricting the right.
The ruling immediately sparked criticism from the Left. New York Governor Kathy Hochul called the decision “shocking” and “reprehensible.” Slate senior writer Mark Joseph Stern called it “devastating” for gun control and claimed the ruling had “effectively rendered gun restrictions presumptively unconstitutional.”
Are they right? As with most hot-button issues, it is easy to get hysterical, but the changes here are not as sweeping as opponents claim. In the 43 states with “shall-issue” regimes, nothing will change at all. In those six outlier states, the ruling requires alterations to their laws but, as Justice Brett Kavanaugh said in a separate concurrence, any state “may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements.”
States are not free to impose any requirements they want — New York will be unable to recreate its restrictive laws under the guise of rules that are facially objective but practically impossible. But what Bruen does remove is the ability of states to be subjective in issuing permits. Exercising your Second Amendment rights will no longer depend on convincing a policeman or judge that you deserve to be allowed.
Perhaps that is why several New York public-defenders groups filed briefs in support of striking down the subjective law. “New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities,” they argued. “That remains the effect of its enforcement by police and prosecutors today.” After Bruen, that will no longer be the case.