What’s Bruen At The Supreme Court
A Briefer Brief Of The Bruen Carry Case
Originally Published On Substack June 24th, 2022
For those who would like an outline of the important facts and relevant details of the Bruen case in a simple reference guide, I have drawn up just such a guide for your convenience.
The Power of the People is not when they strike, but when they keep in awe. It is when they can overthrow everything that they never need to move.
Jean Louis DeLolme (1784)
Today the Court handed down its much-anticipated decision in New York State Rifle & Pistol Association v Bruen. A case that challenges the “May Issue” permitting to carry a firearm for self-defense that applies in New York and six other jurisdictions.
While we should not look to the Court as the protector of our rights, we should take full advantage when they give us a powerful weapon (no pun intended) against the ever-encroaching demand for gun control that curtails our natural rights. Today Justice Clarence Thomas, writing for the majority provided just such a weapon, in a case that adheres to the original public meaning of the second amendment better than Heller or McDonald were able to.
- The case: Robert Nash and Brandon Koch each applied for a concealed-carry firearm license for the purpose of self-defense. The licensing officer denied both applications, finding that neither individual met the proper cause standard required by New York law in order to issue a firearms license for general self-defense. New York courts have defined proper cause as requiring the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community.” Nash and Koch subsequently filed suit in federal court for violation of their Second Amendment rights. The district court dismissed the suit, citing the 2nd Circuit’s ruling in Kachalsky v. County of Westchester that New York’s proper cause requirement did not violate the Second Amendment. On appeal, the United States Court of Appeals for the 2nd Circuit affirmed.
- The issue: The case concerns a person’s right to carry a concealed firearm for self-defense under the Constitution’s Second Amendment.
- The question presented: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”
- The Primary Holding: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.
- The Judgement: In District of Columbia v. Heller, 554 U. S. 570, and McDonald v. Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.
Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here.
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. To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified.
Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry.
Respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded. It is undisputed that petitioners are two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects.
Moreover, no party disputes that handguns are weapons “in common use” today for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” and confrontation can surely take place outside the home.
Thomas really pulled no punches in the way he went after both lawmakers and lower court judges for the repeated deviation from the central holdings in Heller & McDonald
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.” The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different.
Ultimately, this decision is the beginning of the end of the few remaining jurisdictions that still rely on a “may issue” permitting scheme to rob citizens of their natural rights by holding arbitrary and subjective conditions to exercise your right to keep and carry outside the home for self-defense. One of his biggest criticisms was that nowhere in any New York law do they actually purport to create a statutory threshold of their so-called “special need requirement”.
It’s important to bear in mind that a Court’s judgement and it’s precedent are not the same thing and that for this moment, this opinion only enjoins New York, but this precedent will make it a mere matter of going to court in the remaining six “may issue” jurisdictions to enjoin them to this precedent.
Interestingly, one of the most criticized issues with Scalia’s majority opinion in Heller that bothered legal scholars and jurists was their unwillingness to apply a standard of judicial scrutiny to the protection of the right. In Bruen, Clarence Thomas has really turned that on its head and made it one of Bruen’s greatest virtues.
He asserts there is no need to ask whether government can prove that the law is “narrowly tailored to achieve compelling government interest” (strict scrutiny).
He then goes on to further say that while petitioners and respondents both agreed with considering whether the government can show that the regulation is “substantially related to the achievement of an important government interest” (Intermediate Scrutiny).
Thomas insists that in spite of a common approval of the application of intermediate scrutiny, this application of a means-ends scrutiny is neither necessary nor proper when history and tradition clearly delineate the scope of the right. Because as the Constitution was a product of the people as a whole, through its state-by-state ratification, the existence of the second amendment is already created with an inherent, interest-balancing approach of the framers and ratifiers.
That analysis suggested that the Amendment’s operative clause—“the right of the people to keep and bear Arms shall not be infringed”—“guarantee[s] the individual right to possess and carry weapons in case of confrontation” that does not depend on service in the militia… has always been widely understood as codifying a pre-existing right… the Second Amendment does not permit-let alone require-“judges to assess the costs and benefits of firearms restrictions.
[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. We then concluded: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
What Thomas asserts is, not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out intermediate-scrutiny.
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
In equating the second amendment with other constitutionally protected rights, such as freedom of speech in the first amendment:
In that context, “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections.
This reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, viewed by the Court in Bruen, more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field.
I believe a practical understanding to take away from this opinion is that nondiscretionary licensing requirements for carry permits are constitutional, at least if they aren’t too burdensome and are justified by the interest in limiting gun ownership to “law-abiding, responsible citizens”:
[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry.
Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials ….
That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.