New York State Rifle & Pistol Association v. Bruen was the Supreme Court’s most significant gun rights decision since 2008’s DC v. Heller. The June 2022 decision ended “May Issue” concealed carry regimes and required all states to become “Shall Issue.” But Bruen also affirmed Heller, opening the door for numerous challenges to gun control laws across the country.
The gun rights movement is only beginning to reap Bruen’s rewards, and the decision’s impact will be felt for years, at least — perhaps decades. So, let’s look briefly at Bruen, what it says, and its implications.
The Heller Decision
We need to understand Heller before discussing Bruen because Bruen stands on Heller’s shoulders. The decision was the result of Washington, DC Special Police Officer Dick Heller’s challenge to DC’s handgun ban.
Basically, Heller affirmed that the Second Amendment protects Americans’ right to own and possess firearms in their homes for lawful self-defense. The decision also prohibited the government from banning arms “in common use,” which handguns clearly are.
The Supreme Court also found that the Second Amendment, when it was ratified, was “widely understood” to have codified a pre-existing individual right to keep and bear arms. That’s why the operative clause says that “the right of the people to keep and bear Arms shall not be infringed,” instead of “the people shall have the right to keep and bear arms.” The first clearly protects an already existing right. The second just as clearly grants that right.
The Court ruled that the Fourteenth Amendment also protects the individual right to keep and bear arms for self-defense.
The Court also established what is known as the Heller Methodology, though some now call it the Bruen Methodology. We’ll get to that. “When the Second Amendment’s plain text covers an individual’s conduct,” wrote Justice Antonin Scalia for the majority, “the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearms regulation.”
Finally, Heller forbids the courts from employing “interest balancing” when evaluating a gun law’s Constitutionality. Judges have employed this “two-tiered” level of scrutiny to allow the government to say they are acting in the interest of “public safety,” thus allowing otherwise unconstitutional laws to stand.
If you’ve paid attention to post-Bruen legal challenges, you know that “text, history, and tradition” is a central theme, requiring the government to show that their laws have historical precedent from the Founding Era. Few have successfully met that burden.
Pro-gun attorneys have also successfully admonished judges who cling to the interest balancing concept, despite Heller and Bruen. That message has yet to penetrate some lower courts. But things are slowly changing thanks to Bruen’s strengthening of Heller.
The Bruen Decision
Bruen was the New York State Rifle & Pistol Association’s (NYSRPA) challenge to New York’s draconian carry laws, specifically the fact that the state required applicants to demonstrate a “special need” for a concealed carry permit. Self-defense was not a sufficient reason. NYSRPA argued that permit requirements were subjective and arbitrary, with a very low approval rate, thus depriving citizens of their Constitutional rights.
The Supreme Court agreed in a 6-3 decision. Justice Clarence Thomas, writing for the majority and citing Heller, stated that “individual self-defense is the ‘central component’ of the Second Amendment right.” Invoking the Heller Methodology, Thomas noted that New York’s law was not consistent with the nation’s history and traditions. New York argued that its law had been in place since 1911. But the Court found that 1911 is too late. Courts may only consider Found Era laws.
In fact, subsequent cases using Bruen have been reluctant to go much past the Second Amendment’s 1791 ratification. Justice Amy Coney Barrett’s concurring opinion makes it clear that “today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.” That’s a good sign.
Thomas also addressed the two-tired scrutiny applied by lower courts. “[T]he Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
Thomas continued, writing that, “Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Dissent to Bruen
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented from the majority, with the now-retired Breyer writing the dissenting opinion. There’s no need to delve deeply into the dissent. It merely repeats numbers of firearms deaths in the United States, along with several studies sponsored by gun control organizations.
Breyer is notably silent on the 2013 Centers for Disease Control study showing that defensive gun uses range from 600,000 to 2.5 million per year.
Breyer also championed the two-tiered approach struck down by the majority. And he seems unable to delineate between lawful gun owners and criminals. His observation that handguns are the number one choice of both those classes of citizens shows that. He therefore believes the government should be able to heavily regulate all handguns, regardless of the effect on law-abiding citizens.
Alito Dissents with the Dissent
Justice Samuel Alito penned a concurring opinion that essentially rebuts Breyer’s dissent. He notes that Breyer does not address the question decided, but merely recites shooting figures.
Alito’s critique contains statements like “In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.”
Alito goes on with similar statements. No need to repeat them all here. But he effectively neutralizes the dissent by pointing out that Breyer doesn’t even address what the case was about. The dissent does demonstrate, however, that gun control advocates do not see the gun debate in terms of rights.
Bruen’s Impact
The Bruen Decision made an immediate impact. The six “May Issue” states were forced to adopt “Shall Issue” regimes, though they haven’t done so without a fight. New York and others quickly moved to make most of their states “sensitive places,” which Heller and Bruen allow. Those laws are even worse than the law Bruen struck down. Those laws currently face legal challenges.
The Supreme Court also remanded several cases back to the Circuit Courts for reconsideration in light of Bruen’s commands. Several of those courts, notably the anti-gun 4th, 7th, and 9th Circuits, are obfuscating. They are trying to delay those cases while hoping the Supreme Court’s makeup will change.
The Heller and Bruen Methodology makes it likely that any gun bans reaching the Supreme Court will be found unconstitutional. Such findings have already taken place in lower courts, prompting the underhanded tactics from the appellate courts.
Bruen, like Heller, was a big win for the Second Amendment. Gun control advocates, including politicians, have decried the “text, history, and tradition” requirement. That’s because they haven’t been able to meet that standard. Only time will tell how far Bruen will take us. But so far, things are looking very bright indeed.
