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Breaking Down the Initial Amicus Briefs in Bruen

By on August 11, 2021 Categories: , ,

In New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court will answer: Did New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violate the Second Amendment? New York bars open carry of handguns, and the state has a “may issue” licensing scheme to carry a concealed handgun. This means the applicant must meet certain statutory requirements, and the licensing official has discretion in the final decision of whether to issue a permit. (Alternatively, states with “shall issue” schemes offer little to no discretion, instead relying solely on statutory requirements.) In New York, discretion comes in the form of determining if the applicant showed “proper cause” for needing to carry a concealed handgun. The standard of “proper cause” is not statutorily defined but has been interpreted as a “special need” above that of the public or of applicant’s specific profession.

There are two dimensions of particular importance in the case. First, the Court’s treatment of New York’s “may issue”/“proper cause” scheme will undoubtedly impact the other six states with similar licensing requirements. Second, the Court must deal with the question of how to evaluate claims regarding Second Amendment laws. Many amici, some judges, and even a few Justices argue that courts should look only to text, history, and tradition. Under this test, a law with no historical analogue would apparently be unconstitutional. However, every federal court of appeals to come across the question has settled on a different approach: a two-part means-ends scrutiny framework. At the first step of this test, courts ask if the law burdens conduct the Second Amendment protects. If not, then the law is constitutional. If so, then courts use a heightened level of scrutiny to determine if the law sufficiently furthers an important or compelling government interest. Given this dramatic difference in methodology, the Court’s decision has the potential to disrupt a considerable amount of case law. 

Considering the stakes at issue, it is no surprise that there are copious amicus briefs filed in Bruen. Briefs in support of petitioner and in support of neither side were due July 20th, 2021. There are 49 amicus briefs docketed on the Supreme Court’s website; and there will likely be a similarly large number in support of the state filed in September. All but two of the currently posted briefs are in support of petitioners. One of these, a brief of “Second Amendment Law Professors,” was written by Center Faculty Co-Directors Joseph Blocher and Darrell Miller, along with SMU Law Professor Eric Ruben. The professors argue the Court should “hold that the courts of appeals are using the proper doctrinal framework to adjudicate Second Amendment claims.” On another note, the brief of Patrick J. Charles provides a historian’s “contextualized understanding” of the history of modern laws concerning concealed carry and dangerous weapons.

This level of amicus support is consistent with a broader trend. Over the past ten years, the Supreme Court has seen a dramatic increase in the number of amicus briefs filed. From 1946-1955, there was an average of one brief filed per case. Then, 1986-1995 saw about five briefs per case. Most recently, the 2019-2020 term yielded an average sixteen briefs per case, for a total of 911 briefs. In the same term, eight cases had at least thirty briefs; Bostock v. Clayton County, a case contemplating Title VII protections for LGBTQ+ employees, had the most filed with 94 unique briefs. In Bruen, if there are as many briefs supporting the state as there are opposing it, the case will surpass the number in Bostock. Usually cases with controversial, social issues generate large numbers of amicus briefs. Interestingly, in 2008, District of Columbia v. Heller held the record for the most amicus briefs up to that time, with 68.

Source: “Amicus Curiae at the Supreme Court: Last Term and the Decade in Review,”

The National Law Journal, 11/18/2020

The Bruen amicus briefs cover a wide array of topics. Three briefs explicitly invoke corpus linguistics evidence. Twelve briefs discuss the Second Amendment’s treatment as a “second-class” or “disfavored” right. Eleven briefs note the racial/gender/outgroup impacts of laws. Of these, 2 discuss threats against women, 9 focus on racial divides, 3 note anti-immigrant discrimination; there are also single mentions of discrimination against LGBTQ+ individuals, religious minorities, indigent people, and ethnic minorities.

The following table highlights the breakdown of amicus briefs arguing for certain positions or invoking certain arguments.

 

Briefs that used…

Briefs that did not use…

Percent that used…

(out of 49)

Text, History, Tradition

28

21

57%

Scrutiny Analysis

6

43

12%

Corpus Linguistics

3

46

6%

Discriminatory Outgroup Impact of Laws

11

38

22%

“Disfavored” right language

12

37

24%

The Center’s work also factored into the legal analysis of several amicus briefs. Four briefs cite posts on this blog. Additionally, there are 2 direct references to the Repository of Historical Gun Laws. (The Repository is a free, searchable database of gun laws. Laws are organized by subject-matter, with seventeen categories. It is also searchable by geographic area; laws are divisible by country – United States or English law – by all fifty states, or by one of twenty-two cities.) And 4 briefs cite scholarship from the Center directors.