SCOTUS Says People Have a Right to Carry Guns in Public
In striking down New York’s “good cause” permitting law, the justices set a precedent that may imperil licensing regimes in at least five other states.
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In a landmark
decision, the Supreme Court struck down New York’s restrictive firearms licensing law, a decision that could transform gun ownership in New York City and affect at least five other states with similar regulations. In a 6-3 ruling, the court’s conservative majority endorsed, for the first time, a constitutional right to carry a gun in self-defense outside the home.
New York State Rifle & Pistol Association v. Bruen is the Supreme Court’s
first major Second Amendment ruling since
2010, when the Court struck down Chicago’s handgun ban. Writing for the majority, conservative Justice Clarence Thomas said Americans have a two-part right to “keep” guns in their homes and “bear” them in public.
“This definition of ‘bear’ naturally encompasses public carry,” Thomas wrote. “Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table.”
The scope of the decision had been anticipated following the leak in May of a draft opinion voiding federal abortion protections. Legal experts told us at the time that the apparent sidestepping of precedent in that draft document, Dobbs v. Jackson Women’s Health Organization, could signal a similarly wide ruling in Bruen. The court did not go as far as calling into question all licensing schemes, including the 43 states that have “shall-issue” permitting laws, but it did leave the door open for potential challenges.
“Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry,” Thomas wrote.
“It’s going to have huge impacts because the court changed the entire standard for evaluating Second Amendment claims,” said Jake Charles, the executive director of the Duke Center for Firearms Law. “It’s much broader than I was expecting it to be.”
The decision also rewrites the methodology federal courts use when deciding Second Amendment cases. Since 2008’s District of Columbia v. Heller, which established that the Second Amendment includes the right to bear arms in the home, lower courts judging contested firearms legislation have considered whether a particular law furthers the government’s interests in things like reducing crime in addition to historical precedent.
“We know of no other constitutional right that an individual may exercise only after demonstrating to government officials some special need,” Thomas wrote.
With today’s ruling, the six conservative SCOTUS justices are saying that modern-day gun problems are irrelevant when deciding the constitutionality of a law. Instead, the government must now demonstrate that the regulation is consistent with the country’s historical tradition of firearm regulation.
“It’s not entirely clear what it will look like in practice, but it is clear that courts are not going to be able to take into account things that they have done under the current framework,” Charles said. “They’re not going to be concerned about things like, ‘Does this law actually reduce gun violence?’ Those are just going to be irrelevant to courts going forward.”
The Bruen decision comes nine years after the Supreme Court
refused to take on a similar case challenging New York’s “proper cause” requirement. That reflects how quickly the bench’s composition has changed the direction of Second Amendment jurisprudence. Until the confirmation of Justice Amy Coney Barrett, a Trump appointee who gave the Court its 6-3 conservative majority in 2020, the justices interested in hearing Second Amendment cases did not have enough votes. “This case was taken by the Supreme Court because of the addition of the Trump justices: [Neil] Gorsuch, [Brett] Kavanaugh, and Barrett,” Adam Winkler, a law professor at the University of California, Los Angeles,
told The Trace last year. “They have changed the calculus on the Court.”
The Bruen case was brought by the New York State Rifle & Pistol Association, the state affiliate of the National Rifle Association, and two residents of upstate Rensselaer County. In 2018, Robert Nash, who had a pistol permit that allowed him to carry a concealed gun for hunting only, sued the state after his request to remove the permit’s limitations was denied on the grounds that he didn’t demonstrate a proper cause for self-defense. State law doesn’t spell out what “proper cause” means, but a state appeals court defined it as a heightened need for self-protection in one’s community or in the course of one’s work. Nash was joined in the suit by NYSRPA and Brandon Koch, another Rensselaer County resident who was denied a permit.
“They have taken away our rights to have reasonable restrictions,” New York Governor Kathy Hochul said Thursday after the decision came down. “I’m sorry this dark day has come.”
A year and a half before Bruen was
submitted to SCOTUS, another case brought by NYSRPA was expected to make Supreme Court precedent: a 2019
challenge to New York City’s ban on transporting a licensed handgun to a home or shooting range outside the five boroughs. Prior to oral arguments, city officials, fearful of a ruling that could loosen gun laws nationwide, struck the provision. SCOTUS agreed to hear the case anyway, but ultimately
dismissed it as moot.
How will this change gun laws in other states?
Seven other states — California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, and New Jersey — and the District of Columbia have similar may-issue laws, which give authorities discretion to deny permits to applicants. In practice, however, Connecticut and Delaware act more like shall-issue regimes, requiring applicants to meet only basic qualifications to receive a license. With this decision, the five other may-issue states with stricter regulations will soon likely need to stop requiring that applicants demonstrate a justifiable need to carry a concealed weapon.
Twenty-five states don’t require permits to carry concealed guns, but still issue permits for people who want them. They’re also required if you want to take your gun into most other states. This ruling does not immediately affect those regulations, nor the 17 shall-issue states that issue permits to applicants who meet a set of basic requirements.
How will this change gun laws in NYC?
Ahead of the decision, Hochul and New York Mayor Eric Adams
expressed alarm at the prospect of more guns on the streets, and said they were looking at limiting the places where firearms could be carried. In the event that the ruling voided part or all of the state’s permit requirements, lawmakers in Albany
vowed to call a special session to craft legislation limiting the number of concealed carry permits in circulation. The New York Police Department, meanwhile,
says it has a plan to limit the number of guns in civilian hands.
It’s unclear just how the decision will affect the city’s permit issuing scheme in practice. New York lawmakers are likely to revamp the law and could put in place more objective criteria to limit the scope of who can carry in public.
The NYPD, which issues handgun permits to city residents, goes far beyond making gun permit seekers show “proper cause.” Its gun licensing unit
requires applicants to furnish photographs and fingerprints; provide the names of employers and domestic partners; submit business records; and designate someone to take custody of their weapon in the event of their death. The application includes a nonrefundable fee of over $400. The city has long
credited its strict gun laws with keeping its homicide rate lower than that of most other big cities.
“The reality is that other states that have gone to unrestricted carry licenses have had a shared experience of people who can’t bring them in certain places, leaving them in cars and the guns being stolen in car break-ins,” John Miller, the NYPD’s deputy commissioner for intelligence and counterterrorism,
told CBS New York. “That just recycles legal guns into the hands of criminals.”
CBS New York has reported that 1,700 city residents have NYPD-issued concealed carry licenses, and 1,400 people from elsewhere in the state have permission to carry in the five boroughs. Another 773 business owners can keep guns at work, and 2,403 people can carry guns while working but must leave the weapon at their place of business. At least 16,462 city residents have a license that allows them to keep a gun at home.
Losing “proper cause” might not change much in the city, at least not right away. A helpful analogue could be Washington, D.C., where a “good cause” requirement was
voided by a federal appeals court in 2017. Since then,
at least 8,800 permits have been issued, and law enforcement
claims it hasn’t had a measurable effect on crime. There’s a
long list of places Washingtonians can’t carry, including on public transit. New York City would likely implement similar restrictions.
“We have been preparing for this decision and will continue to do everything possible to work with our federal, state, and local partners to protect our city. Those efforts will include a comprehensive review of our approach to defining ‘sensitive locations’ where carrying a gun is banned, and reviewing our application process to ensure that only those who are fully qualified can obtain a carry license,” New York City Mayor Eric Adams said in a statement after the ruling. “We will work together to mitigate the risks this decision will create once it is implemented, as we cannot allow New York to become the Wild West.”
The NYPD could also make it prohibitively difficult to seek a permit — by raising the application fee, requiring exams, or mandating range training. But activists would likely file lawsuits seeking to overturn those requirements.
The NYPD’s licensing division has had its share of controversy, most notably a bribery
scandal in 2017. The office could soon be swamped with applications, and will be under heightened scrutiny.
What we don’t know
The Bruen decision leaves open many questions about how this will play out on the ground. Lower courts will now have to figure out how to implement a new standard of review for gun regulations, and though the decision leaves in place the permitting schemes of 43 shall-issue states, it does provide a potential playbook for those hoping to challenge such laws.
“That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry,” the opinion states.
The court also did not provide a clear answer about what constitutes a “sensitive place” where the carrying of guns can be prohibited. It endorsed a few examples, like legislative assemblies, polling places, and courthouses, but said lower courts will need to use historical analogies to determine what qualifies as a sensitive place today.
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