A right to conceal and carry?

In the coming days or months, the Supreme Court will rule on one of the most important firearms cases in the history of the High Court. The case is about whether gun owners have a constitutional right to carry their guns outside their homes and, if so, whether restrictive concealed carry licensing laws violate the second amendment. Brennan Center law professor and fellow Eric Ruben discusses the case and its implications.

This mandate to the Supreme Court, the justices consider New York State Rifles and Pistols Association vs. Bruen. Tell us about this case.

Reuben: Brown involves a New York State law limiting who can carry a concealed handgun in public. For more than a century, New Yorkers wishing to obtain a license to carry a concealed handgun for self-defense have had to show that they have what the law calls a “good cause” – essentially a greater need for self-protection than other members of the community. A judge determined that the plaintiffs in Brown did not meet this standard. They were both given concealed carry licenses, but they were limited as to where they could carry their handguns. For example, one applicant was issued a permit to carry a concealed handgun while traveling to and from work, and both applicants’ permits allowed them to carry concealed handguns for hunting, target practice and certain areas not “frequented by the general public”. ”

Along with the New York branch of the National Rifle Association, the plaintiffs filed a lawsuit, claiming that limitations placed on their licenses violated the Second Amendment. They argue that the Second Amendment protects their right to carry a handgun virtually whenever the need for self-defense might arise.

Which makes Brown different from previous Supreme Court cases, especially the landmark decision in District of Columbia v. Heller (2008)?

For more analysis on gun rights and regulation, check out the Brennan Center’s Protests, Insurrection and Second Amendment series.

Reuben: In Heller, a simple majority of justices overturned Washington, DC’s ban on home handguns. The Supreme Court has ruled, for the first time in more than 200 years, that the Second Amendment protects an individual’s right to own and bear arms, centered not on a “well-regulated militia,” but rather on ” the inherent right of self-defence”. .”

Heller was a landmark affair, constitutionalizing a vast policy area – gun regulation. That said, the law at issue was an outlier because only two major cities in the country, DC and Chicago, had such a handgun ban.

The contested law Brownon the other hand, affects a lot more people than the handgun ban involved in Heller. New York is one of eight heavily populated states requiring people seeking to carry a concealed handgun to have an increased need to do so. If the High Court strikes down the New York law, it will have immediate implications in those states – which are home to about a quarter of Americans.

Moreover, the impact on the people of these states is likely to be greater than the impact of Heller about people living in DC and Chicago. Heller ruled on the right to have a firearm in the home. If the Supreme Court rules that the proper cause laws are unconstitutional, residents of these eight states can expect to interact with more people armed with a deadly weapon. Gun rights advocates say it’s a good thing for society — that “an armed society is a polite society” — but others, including the weight of scholarship, suggest otherwise.

What will you monitor when the opinion is rendered?

Reuben: Of course, I’ll be watching the ruling on the laws allowing for just cause. The Supreme Court could uphold the New York law, but after the closing arguments, many court watchers think that’s unlikely. The Court could also strike down the disputed aspect of the law, the good cause requirement, which would keep licensing in place but strip most of its teeth. Another possibility is an intermediate decision. For example, during oral argument, the plaintiffs’ attorney said his clients had no intention of entering New York with their handguns. Judges could use this concession to limit their decision to non-urban locations.

Another thing I’ll be watching is whether the Court takes this opportunity to herald the new Second Amendment doctrine, as a judicial test deeming modern gun violence irrelevant — and history and tradition paramount. This would be very important because it would affect the Second Amendment analysis of everything challenged gun laws, not just restrictions for proper cause.

After Heller, lower courts have decided more than 1,000 Second Amendment cases on everything from felony possession bans to assault weapons bans. In doing so, they applied a conventional approach that takes into account, among other things, modern public safety concerns. If the majority of the justices rule that Second Amendment cases should be decided solely on the basis of text and history, and not modern security, we can expect a new round of litigation challenging previously upheld laws according to the conventional approach.

A circulating narrative is that the Second Amendment is being treated as a “second class right” by the courts. Does the case law support this narrative?

Reuben: The “second-order” right trope has become increasingly common in some circles and can feature in court opinions. In a recent study, Joseph Blocher and I found no solid empirical support for the allegation of widespread mistreatment of gun rights in the courts. Among other things, the success rate of Second Amendment claims is consistent with other constitutional contexts.

But the assertion of second-class treatment, which has an unmistakably partisan spread in court opinion, could nevertheless have a profound impact. If a majority of judges accept the second-class claim, it could warrant a move to strengthen judicial oversight of gun laws and further limit governments’ ability to regulate in this area.

If the Court strikes down the New York law, how can federal, state, or local policymakers and voters balance the right to bear arms with public safety concerns?

Reuben: Policy makers will likely adapt to new circumstances and seek alternative avenues of regulation. I have an upcoming essay in the Harvard Law Review Forum on how criminal gun laws utilizeas opposed to pistol wearing, providing incentives and disincentives for public reporting through mechanisms such as sentencing enhancements, vigilante elements, burdens of proof, and legal inferences. If the Supreme Court strikes down New York’s just cause requirement, one avenue of regulation could be blocked, but that would only redirect policymakers to other avenues.