On Monday, the Supreme Court granted review in an important Second Amendment case, which sets it up to issue a major decision on the topic for the first time in more than a decade. Below are some answers common questions about the case.
The case–New York State Rifle & Pistol Association v. Bruen–centers on New York’s requirement that an applicant seeking an unrestricted license to carry a concealed handgun show “proper cause.” New York bars openly carrying handguns. The phrase “proper cause” is not defined in the statute, but New York courts have construed it to mean that a person must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”
The licensing statute only applies to handguns, not standard shotguns or rifles.
The case is significant for two primary reasons. First, the law at issue in New York is similar to that in several other large states. In general, licensing schemes can be split into two categories: (1) those that allow licensing officials some discretion to deny a license to a person who meets other statutory criteria—like passing a background check or completing the required training, and (2) those that leave the licensing official little or no discretion once the statutory criteria are met. The first type of laws are typically referred to as “may issue” (because they afford officials some discretion) and the second are “shall issue.” Within the set of “may issue” law are licensing schemes that require a person to show justifiable need or good reason to carry a gun in public. These are typically called good cause or good reason laws. New York’s falls into this subcategory, as do the laws of six other states: California, Delaware, Hawaii, Maryland, Massachusetts, and New Jersey. (Rhode Island is a mixed case, with a shall-issue scheme but also a good-cause requirement; Connecticut and the District of Columbia, on the other hand, have may-issue laws but with no accompanying good-cause requirement.) So the Supreme Court’s ruling on the constitutionality of these types of laws could have profound effects on the more than 80 million Americans who live in jurisdictions that have good-cause laws. Although the empirical evidence is contested, one of the most recent sophisticated analyses concludes that shall-issue laws–the laws that dispense with any showing of good cause–“are associated with 13-15 percent higher aggregate violent crime rates 10 years after adoption.”
Second, the case is significant not just for whether the Court will uphold these types of laws, but also for how the Court analyzes them. This question—about how courts should go about deciding whether a law complies with the Second Amendment—has bedeviled lower courts since Heller left the question entirely open. Some judges and justices, including Justice Kavanaugh, believe that courts should look only to text, history, and tradition and analogize from there to assess a modern law’s constitutionality. On this view, new or novel laws that have no historical analogue violate the Second Amendment. But the more traditional method—and the one adopted by every federal court of appeals to consider the question—involves the customary means-end scrutiny that has become a fixture of much constitutional-rights adjudication. In that framework, courts assess whether a law burdens conduct that the Constitution protects, and then, if so, apply a form of heightened scrutiny to determine whether the law adequately serves the government’s important or compelling interests (usually by recourse to materials such as empirical studies and the like).
That seems to be the assumption of commentators who see the decision to take this case as a victory for the conservative justices who have been looking to expand gun rights since shortly after Heller was decided. But it is not entirely clear that that will be the outcome. For one thing, the justices can often issue surprising rulings, like last Term’s majority decision by Justice Gorsuch in Bostock v. Clayton County. For another, the history of good-cause licensing laws for concealed carry is rich and widespread. New York’s law has continued in substantially the same form since 1913. That 108-year history dwarfs the lifespan of several other laws that Justice Scalia in Heller called “longstanding” exceptions to the Second Amendment’s scope. Historians who study the history of gun regulations note that good-cause or may-issue regimes more broadly trace their history back even before New York’s adoption of such a law at the turn of the century. Dubbed the “Massachusetts model” after its progenitor, these laws spread after the Civil War and were commonplace in the early 20th century. Because history will play an important role in the decision no matter what methodology the Court ultimately uses, this background will likely be debated among the justices, the parties, and the scholars filing amicus briefs in the case. (It is also worth pointing out that the Court limited the question presented to “[w]hether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” It therefore does not appear inclined to address the open carry issue and will instead need to confront the statement in Heller that appears to have suggested that states could constitutionally ban concealed carry altogether.)
The Court has not set the case for oral argument yet, but that will likely happen sometime this fall or early next spring. After oral argument, the justices will work on an opinion in the case. That could come out soon after argument is decided, but the Court has typically waited until the end of the Term in June to issue major rulings. If that holds true here, the decision could be out toward the end of June 2022, though an earlier ruling remains a distinct possibility.
Yes! Watch this space (and visit our website – https://firearmslaw.duke.edu/) for more information as we develop programming and educational materials for the case. And, if you’re interested in the history, check out the Center’s Repository of Historical Gun Laws, containing more than 1,600 gun laws, from medieval England to the United States in 1934.
[Ed. note: this post was updated to reflect the name change for the respondent from Corlett to Bruen.]