[BREAKING] Supreme Court Strikes Down NY Concealed Carry Law – Expanding Gun Rights Nation-wide

by Ryan Cleckner

June 23, 2022

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On Thursday, June 23, the Supreme Court struck down New York’s concealed carry law in New York State Rifle & Pistol Association v. Bruen.

We’re going to explore what happened and what this decision means for gun rights going forward.

Summary: New York required citizens to show “proper cause” before the state would issue a concealed carry permit which the state requires in order to lawfully carry a firearm concealed in public.

The Court’s opinion, written by Justice Thomas, struck down this law and explains that carrying a weapon in public for self-defense purposes is a Constitutional right.

This ruling is a major victory for gun rights nationwide. Not only will getting a CCW permit in NY be much easier but other states with restrictive permit processes will also now be forced to make their processes easier as well.

Background: Constitutional Right to Keep and Bear Arms

The Second Amendment to the U.S Constitution protects Americans’ right to keep and bear arms.

Note that the Second Amendment does not GIVE the right to have firearms – the right to keep and bear arms is ours already. The Second Amendment, like every other part of our Bill of Rights, limits the government’s ability to infringe on the rights we already have.

The Second Amendment reads:

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.

Second Amendment of U.S. Constitution

Anti-Gun Rights people have argued that the Second Amendment applies only to militias. I believe this is incorrect and shows a failure in reading comprehension.

Here’s an analogy that I was known to use with my college students when I taught Constitutional Law courses:

Pretend for a moment that the Second Amendment read: “A literate populace, being necessary to the growth and prospering of a State, the right of the people to keep and bear dictionaries, shall not be infringed.”

Would any rational person read that to mean that ONLY those people who were literate (knew how to read) were allowed to own dictionaries?

Of course not.

Instead, I hope that you can see that the literate populace is a goal through which the owning of dictionaries can be achieved.

D.C. v. Heller (2008)

The Supreme Court, in the 2008 case District of Columbia v. Heller, first declared the right to keep and bear arms is not limited to a militia and is, instead, an individual right. The Heller case struck down a D.C. law that required a special application to carry a firearm and required that the firearm was kept disassembled or secured by a trigger lock or similar device while kept in the home.

This effectively gave the Second Amendment a level of protection not previously enjoyed. In order for a law to be upheld infringing on someone’s right to keep and bear arms, the law would have to pass “intermediate scrutiny” (the middle of three levels of scrutiny a court applies to Constitutional matters).

However, it could be argued that the Second Amendment was now a “fundamental right” that automatically enjoys “strict scrutiny” (the highest level of scrutiny and most likely for a law to be held invalid).

Which scrutiny applies is up for debate as the Court rejected an interest-balancing test like intermediate scrutiny but failed to use strict scrutiny.

More on this in the next section.

McDonald v. Chicago (2010)

McDonald v. Chicago effectively applied the Heller decision to the rest of the country (not just D.C. and/or federal law application).

Pre-NYSRPA v. Bruen (2010-2022)

With Heller recognizing an individual right to keep and bear arms and McDonald applying that finding to each of the states, gun-rights proponents have enjoyed two major victories increasing protections on our rights.

Although some localities have ignored the Supreme Court, some of which have been sued, many laws were overturned and much freedom was enjoyed.

New York had one such law that appeared to unconstitutionally restrict New Yorkers’ right to keep and bear arms. Therefore, the law was challenged and made it to the Supreme Court.

New York’s Concealed Carry Law: What Happened

New York, much like D.C. prior to Heller, required a license to merely possess a firearm. If a citizen wanted to carry a firearm in public, they would have to justify that they had “proper cause” in order to be issued a special unrestricted license to carry the firearm.

In order to meet the “proper cause” requirement, an applicant needed to “demonstrate a special need for self-protection distinguishable from that of the general community.”

Two New Yorkers applied for unlimited permits to carry and were denied so they brought a lawsuit claiming that the state officials violated their Second Amendment right. The first court they brought the case to, and also the court they appealed to, both upheld the New York law/requirement under intermediate scrutiny (see Heller above).

Under intermediate scrutiny, the government is permitted to have a law that infringes upon a right if the law covers an area that is an “important government interest” and the law is “substantially related” to that interest.

In comparison, under “strict scrutiny” review, the law must be the least restrictive method of carrying out a compelling interest as possible. Merely having the law related to the interest would not be enough for it to survive review.

The primary and appellate court found that the government (the State of New York) had an important government interest in public safety and the law concerning permit applications was substantially related to that interest. Therefore, the law survived the challenge and stood.

The New Yorkers then took their case to the Supreme Court which decided to hear the first significant gun case in 12 years.

The Supreme Court found that the right to keep and bear arms was surely an individual right (from their prior decisions) but the right didn’t just apply in someone’s home. If we have the right to protect ourselves using a firearm, that right should not disappear because we are out in public. In fact, arguably, the right exists more in public.

This means that the New York requirements are struck down as unconstitutional and that they may no longer have such a restrictive process to obtain a carry permit.

In his dissent (minority opinion of disagreement), Justice Breyer pointed to gun violence statistics as a justification for more gun control (and infringement of our rights). Justice Alito disagreed with him by pointing out what we already know – gun laws like this don’t stop criminals – by responding that the New York law clearly doesn’t achieve its goal as it did nothing to stop the recent mass shooter in Buffalo, NY.

What This Means for the Rest of the Country

This case SHOULD set a precedent that other states will follow.

I wrote “should” because there’s no guarantee that governments won’t infringe on our rights. In fact, it’s expected.

However, this case should serve as ammunition to sue other states or cities that have unreasonably burdensome pistol permit requirements.

For now, we know that there is an individual right to keep and bear arms for self-defense out in public.

Therefore, any government should have a difficult time placing burdens on a citizen’s way of exercising that right.

Supreme Court Opinion in NYSRPA v. Bruen

Summary of facts from the Court’s ruling:

The State of New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so. N. Y. Penal Law Ann. §400.00(2)(f ). An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g.In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257.

Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement. Petitioners then sued respondents—state officials who oversee the processing of licensing applications—for declaratory and injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Second Circuit’s prior de- cision in Kachalsky v. County of Westchester, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.”

Here is the syllabus option from Justice Thomas:

Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-de- fense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. Pp. 8–63.

(a) 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 pro- tects 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. Pp. 8–22.

(1) Since Heller and McDonald, the Courts of Appeals have devel- oped a “two-step” framework for analyzing Second Amendment chal- lenges that combines history with means-end scrutiny. The Court re- jects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Sec- ond Amendment’s text, as informed by history. But Heller and McDon- ald 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. Pp. 9–15.

(2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is 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. McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. While judicial deference to legisla- tive interest balancing is understandable—and, elsewhere, appropri- ate—it is not deference that the Constitution demands here. The Sec- ond 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. Heller, 554 U. S., at 635. Pp. 15–17.

(3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical under- standing. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution

Cite as: 597 U. S. ____ (2022) 3 Syllabus

can, and must, apply to circumstances beyond those the Founders spe- cifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. See, e.g., United States v. Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” 554 U. S., at 582.

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 im- pose a comparable burden on the right of armed self-defense, and sec- ond, 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. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).

To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass consti- tutional muster. For example, courts can use analogies to “longstand- ing” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause require- ment as a “sensitive-place” law lacks merit because there is no histor- ical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected gener- ally by the New York City Police Department. Pp. 17–22.

(b) Having made the constitutional standard endorsed in Heller more explicit, the Court applies that standard to New York’s proper- cause requirement. Pp. 23–62.

(1) It is undisputed that petitioners Koch and Nash—two ordi- nary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly 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,” id., at 592, and confrontation can surely take place outside the home. Pp. 23–24.

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NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN Syllabus

(2) The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a va- riety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is cre- ated equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or post- dates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Pp. 24–62.

(i) Respondents’ substantial reliance on English history and custom before the founding makes some sense given Heller’s statement that the Second Amendment “codified a right ‘inherited from our Eng- lish ancestors.’ ” 554 U. S., at 599. But the Court finds that history ambiguous at best and sees little reason to think that the Framers would have thought it applicable in the New World. The Court cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some spe- cial need for self-protection. Pp. 30–37.

(ii) Respondents next direct the Court to the history of the Col- onies and early Republic, but they identify only three restrictions on public carry from that time. While the Court doubts that just three colonial regulations could suffice to show a tradition of public-carry regulation, even looking at these laws on their own terms, the Court is not convinced that they regulated public carry akin to the New York law at issue. The statutes essentially prohibited bearing arms in a way that spread “fear” or “terror” among the people, including by car- rying of “dangerous and unusual weapons.” See 554 U. S., at 627. Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are today “the quintes- sential self-defense weapon.” Id., at 629. Thus, these colonial laws provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. Pp. 37–42.

(iii) Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heav- ily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and “surety” statutes. None of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime.

Cite as: 597 U. S. ____ (2022) 5 Syllabus

Common-Law Offenses. As during the colonial and founding peri- ods, the common-law offenses of “affray” or going armed “to the terror of the people” continued to impose some limits on firearm carry in the antebellum period. But there is no evidence indicating that these com- mon-law limitations impaired the right of the general population to peaceable public carry.

Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pis- tols and other small weapons. But the antebellum state-court deci- sions upholding them evince a consensus view that States could not altogether prohibit the public carry of arms protected by the Second Amendment or state analogues.

Surety Statutes. In the mid-19th century, many jurisdictions began adopting laws that required certain individuals to post bond before carrying weapons in public. Contrary to respondents’ position, these surety statutes in no way represented direct precursors to New York’s proper-cause requirement. While New York presumes that individu- als have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.” Mass. Rev. Stat., ch. 134, §16 (1836). Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee.

In sum, the historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms op- erated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. Pp. 42–51.

(iv) Evidence from around the adoption of the Fourteenth Amendment also does not support respondents’ position. The “discus- sion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves,” Heller, 554 U. S., at 614, generally demonstrates that during Reconstruction the right to keep and bear arms had limits that were consistent with a right of the public to peace- ably carry handguns for self-defense. The Court acknowledges two Texas cases—English v. State, 35 Tex. 473 and State v. Duke, 42 Tex. 455—that approved a statutory “reasonable grounds” standard for public carry analogous to New York’s proper-cause requirement. But these decisions were outliers and therefore provide little insight into how postbellum courts viewed the right to carry protected arms in pub- lic. See Heller, 554 U. S., at 632. Pp. 52–58.

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NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN Syllabus

(v) Finally, respondents point to the slight uptick in gun regu- lation during the late-19th century. As the Court suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier ev- idence. In addition, the vast majority of the statutes that respondents invoke come from the Western Territories. The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. See Heller, 554 U. S., at 614. Moreover, these territorial laws were rarely subject to judicial scrutiny, and absent any evidence explaining why these unprecedented prohibitions on all public carry were under- stood to comport with the Second Amendment, they do little to inform “the origins and continuing significance of the Amendment.” Ibid.; see also The Federalist No. 37, p. 229. Finally, these territorial re- strictions deserve little weight because they were, consistent with the transitory nature of territorial government, short lived. Some were held unconstitutional shortly after passage, and others did not survive a Territory’s admission to the Union as a State. Pp. 58–62.

(vi) After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause re- quirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” to carry arms in public. Klenosky, 75 App. Div. 2d, at 793, 428N.Y.S.2d,at257. P.62.

(c) 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.” McDonald, 561 U. S., at 780 (plurality opinion). 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. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public. Pp. 62–63.

818 Fed. Appx. 99, reversed and remanded.

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About Ryan Cleckner

Ryan is a former special operations sniper (1/75 Ranger) and current firearms attorney, firearms industry executive, university lecturer, and bestselling author of the Long Range Shooting Handbook.

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