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Supreme Court justices sounded suspicious of New York’s gun law. Here’s what might come next.

Will the court listen to empirical evidence about safety, or just strike down any regulations that didn’t exist in the 18th century?

- November 4, 2021

Supporters of gun regulation have reason to be concerned after the Supreme Court heard oral arguments Wednesday in New York State Rifle & Pistol Association v. Bruen. The case presents a Second Amendment challenge to New York’s requirement that a person show “proper cause” to secure an unrestricted license to publicly carry a concealed handgun.

At least six other states have discretionary licensing laws like New York’s, making about a quarter of the U.S. population — or roughly 80 million Americans — subject to these laws. They are all poised to fall if the court strikes down the New York law.

Although it’s always perilous to make predictions about the Supreme Court, it’s fair to say a majority of the justices signaled disagreement with New York’s system. Yet they also seemed nearly unanimous in agreeing that such a ruling would not simply let people carry firearms anywhere they want.

The justices’ questions suggested that they’re keenly aware that it would be dangerous to declare that Americans have an unconstrained right to carry weapons. But it’s not clear how the court would restrict that right if it overrules New York’s law. Nor is it clear the justices will be willing to consider empirical evidence about a law’s effectiveness in future gun regulation challenges.

A right to carry in public, with limits

In 2008, in District of Columbia v. Heller, the court held that the Second Amendment protects an individual’s right to keep a firearm at home for self-defense. The question since then has been whether individuals have a right to carry that gun in public. Much of the oral argument in Bruen focused on two geographical concerns.

First, the justices asked the challengers where they believed New York could limit the presence of guns. The Heller decision allowed gun bans in “sensitive places,” pointing to schools and government buildings as two examples. But where else qualifies? What about a university campus, asked Chief Justice John Roberts. Or New York City subways, inquired Justice Elena Kagan. How about Times Square on New Year’s Eve, Justice Amy Coney Barrett chimed in. The challengers’ lawyer said, essentially, it depends.

One factor to consider, he argued, is whether the government restricts public access to the place itself — as it often does in courthouses by requiring a person to go through a security screening. But that suggestion omits many places often considered sensitive.

Federal law, for example, bars firearms on U.S. Capitol grounds, even though individuals are allowed on most of the grounds without special restriction. In 2019, the U.S. Court of Appeals for the District of Columbia upheld this prohibition as a permissible “sensitive place” restriction. That law arguably saved lives during the Jan. 6 attack on the Capitol, but the Bruen challengers’ standard could undermine its validity.

The justices’ second geographic concern was whether the Constitution would permit different forms of gun regulation in different parts of the country. As Justice Kagan said, “[I]t seems completely intuitive that there should be different gun regimes in New York than in Wyoming or that there should be different gun regimes in New York City than in rural counties upstate.”

Both inter- and intrastate variation seemed appealing to several justices, including — perhaps surprisingly — Justice Clarence Thomas, who asked why it would be a problem to have a “tailored approach for Second Amendment” rights, where regulations look different in New York City than in Upstate New York.

And yet the justices seemed hard-pressed to identify other constitutional rights that work this way, although there are several examples, like how the First Amendment treats some types of speech as subject to regulation based in part on local community standards, or how the Fifth Amendment’s protection for property rights depends on underlying state laws defining property.

Especially for the Second Amendment, legal tradition supports treating populous areas differently from rural ones. It’s unclear how or even whether the justices would resolve these tensions if they overturned New York’s licensing framework.

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History is likely to matter more than efficacy in judging gun laws

Bruen matters not only for how the Court will rule on New York’s specific law, but also for how it will guide lower courts in evaluating future gun law challenges. That guidance might be more consequential than whether this particular law stands or falls.

Judges, advocates, and scholars are arguing over two competing frameworks for evaluating gun laws. In one, courts focus on how well a gun regulation serves the state’s interests in combating gun violence, promoting public safety, or meeting other important government interests. In the other, courts assess only whether the type of regulation is similar enough to one that has been enacted in the 18th or 19th century. Sometimes the frameworks lead to similar conclusions, but despite overlap, they are not identical.

The first approach — which lower federal courts have used unanimously to date — enables courts to inquire into the contemporary costs and benefits of gun regulation. The second framework — championed by Justice Brett M. Kavanaugh when he was a judge on the D.C. Circuit — jettisons that data and looks only to how governments have regulated guns in relevant historical time periods, like at the country’s founding or during Reconstruction, as the benchmark for what governments can do today.

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In the Bruen argument, the justices seemed to favor the second approach, the kind of historical test Justice Kavanaugh inspired. Justice Neil M. Gorsuch, for example, claimed many lower courts “refused to apply the history test,” suggesting that he believes that’s the one that matters. Few of the justices seemed interested in examining empirical evidence about laws like New York’s.

Neither of the advocates supporting New York’s law even brought up recent social science literature, which featured prominently in an amicus brief filed by public health scholars and social scientists, finding that a state’s transition from a New York-style law to issuing permits on request leads to a 13 to 15 percent increase in violent crime. If the court mandates the use of a history-and-tradition test that would limit a court’s review to whether a given type of law existed in the 18th or 19th century, that might invalidate even empirically effective regulations that are narrowly drawn to promote public safety.

Until we get a decision — probably next June — it’s hard to say just how much a ruling will restrict New York’s regulatory authority. If the Supreme Court strikes down New York’s law, we may see some states passing laws making it harder to get a license to carry in the first place, with strict training requirements including exercises with firing weapons and written tests on firearms law. We’ll also probably see more governments designate certain areas as gun-free “sensitive places,” which would almost surely bring on more lawsuits challenging such designations.

But whatever the uncertainty, the Supreme Court has clearly decided to get more actively involved in the future of gun rights and regulation in the United States.

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Jake Charles (@JacobCharlesNC) is a lecturing fellow and executive director of the Center for Firearms Law at Duke University School of Law.