New York State Rifle & Pistol Association Inc. v. Bruen

THE TEXT, HISTORY, AND TRADITION OF THE SECOND AMENDMENT

Petitioner New York State Rifle & Pistol Association Inc. (“NYSRPA”) argues that the text of the Second Amendment clearly supports the right not only to possess firearms, but also carry them outside the home. Brief for Petitioner, NYSRPA et al. at 25. NYSRPA asserts that under traditional norms of Constitutional interpretation, every word holds meaning and therefore “to keep and bear arms” must mean that Americans have a right to both possess and “bear,” or carry, arms. Id. at 25-26. NYSRPA also asserts that this interpretation is consistent with the history of the Second Amendment by citing to the Second Amendment’s predecessor, the 1689 English Bill of Rights. Id. at 29. NYSRPA points out that the English Bill of Rights granted Englishmen the right to have arms for self-defense and was interpreted to extend that right to carry outside the home. Id. at 29-30. Thus, NYSRPA contends that in America’s early days, people commonly understood they had a right to carry weapons with them in public. Id. at 32. Additionally, NYSRPA asserts that early courts recognized the broad right to carry arms in public except for abusive reasons. Id. Indeed, NYSRPA points out that historical prohibitions on carrying concealed weapons were allowed only if the right to bear arms was not impeded, say, by continuing to allow openly carried weapons. Id. at 32-34.

NYSRPA further argues that even if some previous laws unduly restricted the right to carry a firearm outside the home, the Supreme Court’s recent decision in District of Columbia v. Heller clarified that “all Americans” have the right “to possess and carry weapons in case of confrontation.” Id. at 46. NYSRPA also points out that in McDonald v. City of Chicago, the Supreme Court clarified that “individual self-defense is ‘the central component’ of the Second Amendment right.” Id. at 38. Thus, NYSRPA notes that, in Heller, the Supreme Court specifically stated that restrictions on firearms in certain places are acceptable. Id. That judgment, argues NYSRPA, would be irrelevant if the Second Amendment did not guarantee the right to carry weapons outside the home for self-defense, which is what members of NYSRPA seek to do here. Id.

Respondents Kevin P. Bruen et al. (“Bruen”) agree that the Second Amendment guarantees the right to both possess and carry firearms. Brief for Respondents, Kevin P. Bruen et al. at 19. Bruen argues, however, that this right is not unlimited. Id. Bruen asserts that NYSRPA incorrectly stated that historical laws only restricted carrying weapons for abusive or terrorizing reasons. Id. at 22. Instead, argues Bruen, historical laws allowed people to carry weapons only where and when doing so would not create a suspicion of violence or disturbance. Id. Bruen further asserts that carrying firearms in fairs and markets was commonly understood to create a suspicion of disturbance or violence and therefore firearms were often banned in these places. Id.

Bruen contends that Heller did not hold that people have an unlimited right to carry arms for self-defense. Id. at 20-21. Indeed, Bruen asserts that people only have the right to defend themselves with deadly force in certain situations. Id. at 25. Bruen argues that historically, people could only use self-defense when law enforcement was not around, typically in rural areas. Id. Bruen states that in public areas such as towns, people had a duty to seek help from the law before resorting to self-defense. Id. Bruen points to historic narrow public carry laws to support this argument and show that the right to carry arms has always been limited. Id. at 25-26.

NEW YORK’S CONCEALED CARRY LAW

NYSRPA asserts that Second Amendment protections should extend to all typical law-abiding citizens. Brief for Petitioner at 41. NYSRPA argues that New York’s law is thus incompatible with the Second Amendment because it severely restricts the rights of typical Americans to carry guns outside their homes. Id. at 40-41. NYSRPA contends that the “proper cause” standard of the New York law is so strict that only people who can demonstrate unique circumstances are allowed to have guns outside their home. Id. NYSRPA argues that the New York law is therefore like the law struck down in Heller because, under the proper cause standard, most people are “totally ban[ned]” from carrying guns. Id.

NYSRPA further argues that officers have too much discretion to deny concealed carry licenses. Id. at 42. NYSRPA asserts that this discretion turns the right to bear arms into a privilege because rights are designed to protect individuals from government, and the highly discretionary licensing scheme does not adequately do so. Id. Furthermore, NYSRPA argues that the law may be applied discriminatorily since the law was originally passed to prevent immigrants from carrying arms, and that today, celebrities and well-connected individuals can get licenses much easier than the typical individual. Id. at 42-43. NYSRPA concludes that because the law is discretionary, Section 400.00 does not sufficiently protect an individual’s right to bear arms for self-defense and severely limits the number of people who can carry guns, in violation of Second Amendment rights. Id. at 43–44.

Bruen contends that the New York law’s “proper cause” requirement is reasonable within legislative context and therefore does not violate the Second Amendment. Brief for Respondent at 32. Bruen argues that the law, which simply restricts having firearms in places “frequented by the public,” is less restrictive than other acceptable gun-regulation laws, which prohibited firearms anywhere “people have typically congregated.” Id. Bruen concludes that the law is therefore within constitutional limits and merely seeks to protect “sensitive places” which, as Heller indicated, is acceptable. Id. at 34. Bruen asserts that NYSRPA’s position, concerning citizens being allowed to carry firearms wherever the need for self-defense may arise, would eliminate the possibility of restrictions in ‘sensitive places’ that has been recognized as valid. Id. at 35-36.

Bruen also asserts that the law is not unduly discretionary. Id. at 29. Indeed, Bruen argues that the licensing officials’ discretion in handing out licenses is no different than the way officials have executed laws for hundreds of years. Id. Bruen notes unlike NYSRPA’s contention, there is no evidence that New York originally passed its gun law to disarm immigrants. Id. at 30. Instead, Bruen contends that NYSRPA cannot bring a valid claim speculating that people may be selectively disarmed in the future, because NYSRPA is not part of a protected class and never alleged that they were discriminated against. Id. at 31. Finally, Bruen points out that the denial decisions are reviewable and that the license application process allows applicants to submit more evidence if they are originally denied a license. Id.

APPLYING THE CORRECT STANDARD OF REVIEW

Finally, NYSRPA argues that the Second Circuit applied the incorrect standard of review to the New York law. Brief for Petitioners at 47. NYSRPA asserts that the Second Amendment right to bear arms is a core enumerated right; therefore, laws restricting the right should be subject to strict scrutiny. Id. NYSRPA contends that the Second Circuit erred when it stated that the right to carry arms was not core to the Second Amendment because the decision created an unacceptable hierarchy of constitutionally protected rights. Id. at 45. NYSRPA further asserts that the Second Circuit incorrectly interpreted Heller when determining its standard of review because Heller clearly stated that both the right to have and the right to bear arms were equally guaranteed by the Second Amendment. Id. at 46.

NYSRPA argues that the court wrongly applied a loose form of intermediate scrutiny and gave too much deference to the legislature. Id. NYSRPA asserts that, at a minimum, the court should subject the law to “exacting scrutiny.” Id. Instead, NYSRPA argues that the law is not narrowly tailored to meet the government’s important interest. Id. Additionally, NYSRPA contends that even if the government has an important interest, the law is too broad because it prevents typical, law-abiding citizens from bearing arms. Id. at 47-48. NYSRPA concludes that the government did not make the necessary effort to avoid overburdening protected rights; thus, the law should be struck down using the correct standard of review. Id. at 48.

Bruen responds that the court’s decision in Heller implied that strict scrutiny does not apply to the Second Amendment because that decision listed a number of presumptively lawful restrictions on carrying arms. Brief for Respondent at 38. Bruen points out that previous Supreme Court decisions acknowledge states’ authority to be flexible creating gun laws. Id. Thus, Bruen concludes that strict scrutiny review is incompatible with this discretion because strict scrutiny removes this flexibility by requiring a legislature to produce the least restrictive means to achieve its end. Id.

Bruen further argues that intermediate scrutiny is the correct form of review and claims that the New York law meets this standard. Id. Bruen notes that a law “must be substantially related to an important governmental objective” to survive intermediate scrutiny review. Id. at 39. Bruen argues that the New York law passes this test because it is a time, place, and manner restriction that allows license holders to have guns for certain reasons, while only placing general restrictions on the carrying of guns in crowded public areas. Id.