Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
Not a Second-Class Right
For the third time in the last fourteen years, the Supreme Court has strongly held that the Second Amendment “is not a second-class right,” as Justice Thomas re-affirmed for the 6-3 majority in New York State Rifle & Pistol Association v. Bruen. This decision was released the same day that the Senate passed the bipartisan “red flag” legislation, now law, that provided a person’s firearms may be temporarily confiscated without due process.
Thomas emphasizes and bases his opinion for the Court on the two well-known and recent Second-Amendment decisions. In DC v. Heller (2008), the Court ruled in a 5-4 decision authored by Justice Scalia that a District of Columbia law was unconstitutional. The law completely prohibited the possession of a handgun in the home—“where defense of self, family, and property is most acute,” said Scalia—and required other firearms in the home to be unloaded and disassembled.
The Court ruled in Heller against probably the oldest argument supporting gun restrictions, namely, that because it begins with “A well regulated militia being necessary to the security of a free State,” the Second Amendment allowed firearm possession only for state militias and men when in service of militias. However, the Heller majority concluded that the Amendment secured an “individual right . . . unconnected with service in a militia.” In Bruen, Thomas, citing Heller, said that the “Second Amendment’s plain text covers an individual’s conduct.” Only four members of the current Court were members of the Court for the Heller decision.
In McDonald v. Chicago (2010), the Court in a 5-4 decision written by Justice Alito went beyond Heller and ruled that the right “to keep and bear arms” is a “fundamental” and “deeply rooted in this Nation’s history and tradition” (citing the Glucksberg 1997 case), and that the Second Amendment was incorporated against and applied to the states by the Fourteenth Amendment. Since the District of Columbia is not a state, incorporation was not an issue in Heller. Five members of the McDonald Court are still on the Court.
So, with recent and definitive rulings, even though by narrow margins, that the Second Amendment is an “individual” and “fundamental and deeply rooted” American right concerned with the defense of “self and family,” what did the state of New York try to do? In 2017, that state enacted a law requiring a hearing for a license to possess a firearm in the home before a judge or law-enforcement officer to show proof of “good moral character,” no criminal or mental-illness history, and the absence of any “good cause” for denial (how was one to prove that negative?). To carry a concealed handgun in public, the law required the applicant to affirmatively prove that “proper cause exists” for such a license.
Such a requirement is so stiff that, as Justice Thomas noted in his opinion, a New York state court had ruled that “living or working in an area noted for criminal activity does not suffice” for a concealed carry permit. And other New York courts have ruled that the “proper cause” must concern a “particular threat” to safety of that particular person, a “special need for self-protection distinguishable from that of the general community.”
As it had already done in both Heller and McDonald, the Court in Bruen reviewed at length the entire history of public firearm regulation in the states both before and since the ratification of the Second Amendment. The Court reviewed laws and customs of medieval and early modern English history, the American colonies and early American history, pre- and post-Civil War history, and late 19th and early-20th century history. Thomas observed that there have been occasional and limited restrictions on the right to bear arms, but “None of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime.”
It is this objective and comparative review of “the Anglo-American history of public carry,” together with the plain text of the Second Amendment that is definitive, Thomas concludes. “We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
In addition, Thomas points out that to “bear arms” is something a person does in public and therefore is a public right. No one “bears” but instead only possesses their firearms in the privacy of their homes. American citizens can bear concealed firearms in public.
The five-opinion, 135-page decision also features a direct confrontation between Justice Alito in concurrence and Justice Breyer in dissent. Breyer begins his dissenting opinion with eight pages of an extra-legal and extended op-ed with sources cited about the contemporary need for firearms regulation. He begins with “Since the start of this year (2022), there have 277 reported mass shootings—an average of more than one per day.” To this, Alito retorts that a mass shooter will not be deterred by a law forbidding carrying “a handgun outside the home.” He also adds that the New York “law at issue in this case” did not stop the mass shooter in Buffalo, New York.
Breyer repeatedly emphasizes the use of guns in suicide. Alito replies again that the New York law preventing carrying handguns in public has nothing to do with suicide carried out in private. The same goes for the use of guns in domestic disputes. It has nothing to do with the case at hand. Back and forth it goes, with Alito arguing” that “our country’s high level of gun violence,” is itself a reason “that cause(s) law-abiding citizens to feel the need to carry a gun for self-defense,” and citing a source on his own: “According to survey data, defensive firearm use occurs up to 2.5 million times per year.”
In his final words at the end of his opinion, Justice Thomas sets out a right equal to all other constitutional rights:
The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.
New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
The Court’s Bruen opinion is its latest, strong affirmation of the full constitutional status of a routinely disparaged or ignored constitutional right, showing that all constitutional rights are equal.