Major Second Amendment case awaiting Supreme Court decision
Written by ABC Audio All Rights Reserved on June 22, 2022
(WASHINGTON) — A decision in the U.S. Supreme Court’s biggest gun rights case in over a decade is expected to land any day now.
The closely-watched case, New York State Rifle & Pistol Association Inc. v Bruen, addresses whether New York state’s concealed carry law violates the Second Amendment.
It is the most significant case regarding the Second Amendment since the high court affirmed the right to bear arms with its 2010 decision rendering Chicago’s nearly 30-year ban on handgun ownership unconstitutional.
“There’s been a big push to get more Second Amendment cases before the courts because many people believe that the lower courts were not being faithful to the Supreme Court’s decision in 2010 saying that states, as well as the federal government, were restricted by the Second Amendment,” Seth Chandler, a professor at the University of Houston Law Center who teaches constitutional law, told ABC News. “The Supreme Court for the past 10 years or so has just not placed that hot-button issue on its docket. But now, with this New York State Rifle and Pistol v. Bruen case, they’ve accepted those challenges.”
‘May issue’ states
The case, brought forth by the NRA-affiliate New York State Rifle & Pistol Association, focuses on a century-old New York state law that requires gun owners to show “proper cause” to carry a handgun in public for self-defense. Local authorities currently are given the discretion to decide who receives a concealed carry license even if basic requirements are met.
Twenty-five states require a permit to carry concealed weapons in public, according to the Giffords Law Center to Prevent Gun Violence. Among those, New York is one of eight states, as well as the District of Columbia, that have such “may issue” concealed carry laws. Someone may be denied a permit if, for instance, they have not demonstrated a strong reason to carry a weapon in public.
Seventeen “shall issue” states, meanwhile, issue concealed carry permits with little to no discretion to those who meet basic qualifications. The remaining 25 states generally allow people to carry concealed weapons in most public spaces without a permit, according to the Giffords Law Center.
Gun control advocates like the Giffords Law Center warn that relaxing concealed carry laws could increase the risk of gun violence, while gun rights groups argue that laws like New York’s are unfair and overly discretionary.
The court is also deciding the case at a time when the country has seen record levels of gun violence and gun deaths and a spate of deadly mass shootings that have reignited calls for gun reform, alongside record gun sales.
Potential outcomes
During oral arguments on the case in November, many of the court’s conservative justices seemed skeptical of New York-style laws, though raised concerns about public safety if restrictions were rolled back too far.
With the high court appearing poised to strike down New York’s proper-cause requirement, it would be a question of “how narrowly or broadly that opinion is written,” Darrell Miller, a professor at the Duke University School of Law who teaches constitutional law, told ABC News.
“A really narrow opinion could be something like New York can have a licensing law for concealed carry, but it can’t grant as much discretion as it does to the licensing authority,” Miller said. “A broad decision on this issue would be something like it’s unconstitutional to have any kind of licensing [for concealed carry] at all. I don’t think that that’s likely, but it’s possible.”
If it rolls back New York’s concealed-carry restrictions, the Supreme Court may also need to address decisions on where guns should be prohibited, Miller said.
“If you end up having more people carrying guns around New York, could you prevent people from carrying guns on college campuses or in the middle of Times Square on New Year’s Eve?” Miller said. “If the Supreme Court says we’ll have rights to carry guns in more places, that puts a lot of pressure on legislatures and eventually the courts to figure out what places are potentially sensitive that you can prohibit guns from being there.”
The justices could uphold the law, allowing New York to continue to exercise discretion in issuing concealed carry licenses, or they could say they don’t want to decide the case now — though both seem unlikely, Miller said.
The justices could send the case back to the district court to get more facts — such as how often people are denied concealed carry licenses in New York — Chandler said, though noted that also seems unlikely.
“I suspect the court feels it’s ready to decide the matter,” he said.
Potential impact
Should the court decide that New York’s discretionary licensing law is unconstitutional, similar laws in other states will likely be challenged, depending on how narrow or broad the decision is, Miller said.
A technical but potentially consequential “sleeper issue” in this case, Miller also noted, is whether the court takes a “text, history and tradition”-only approach in instructing lower courts on how to think about Second Amendment rights, or if judges can continue to consider modern evidence like social science data while balancing individual rights against state laws promoting public safety.
The text, history and tradition-only approach — which gun rights advocates have pushed — “essentially says that only those regulations that have some equal or analogue and history are constitutional, and all other regulations are not,” Miller said.
If the court adopts that approach, other gun regulations — such as those prohibiting guns on planes or keeping them out of the hands of people convicted of domestic violence — may suddenly become subject to that analysis, according to Miller, who was among a group of scholars who filed a brief in the Bruen case on behalf of neither party urging the court not to apply a text, history and tradition-only approach.
If New York’s law remains unchanged, there are other Second Amendment cases in the pipeline that are seeking Supreme Court review, Miller said.
“It’s pretty much guaranteed that whatever this opinion looks like, it will generate further litigation,” he said.
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