In its decision in New York State Rifle & Pistol v. Bruen on June 23, 2022, the Supreme Court declared that the Second Amendment is not a second class right.
The decision’s main argument is that gun rights should be treated the same as other sacred rights, such as freedom of speech or freedom of religion, recognized in the First Amendment.
For most of the court’s history, Second Amendment rights have been considered separate, more dangerous, and therefore more open to regulation. Now, a majority of the judges have called for major changes that will affect many of the rights and rules in American society.
To obtain a license to carry a concealed firearm in New York State, a citizen had to show “good cause.”
In practice, this meant that the local licensing officer had to agree that the person had “special needs” such as facing a current threat or recurring danger.
California, Hawaii, Maryland, Massachusetts, and New Jersey also use similar standards, known as “publicability laws”. Instead, many other states have a “must issue” regime whereby local officials must issue a license to carry a firearm in a concealed manner unless the individual has disqualifying characteristics, including a felony conviction, mental illness, or a restraining order against them.
In a case just heard by the Supreme Court, two upstate New York applicants, Robert Nash and Brandon Koch, were denied unlimited concealed carry licenses because they had no special needs other than personal protection. They insist that the law deprives them of their constitutional rights.
History of Second Amendment rulings
For most of American history, the court ignored the Second Amendment. The first major decision on its meaning was made only in the 1930s, and the court did not consider whether the amendment recognized a fundamental right of the individual until 2008 in the landmark DC v. heller.
The ruling, written by renowned conservative judge Antonin Scalia, recognized the right to keep firearms in the home. The extent to which the right extended to public places was unclear.
Scalia wrote that “like most rights, a Second Amendment right is not unrestricted.” This meant that “long-standing bans on the possession of firearms by criminals and the mentally ill” or “bans on concealed carrying of weapons” were “presumably legal”.
The new ruling establishes that the Second Amendment’s right to guns is a fundamental right like any other and must be afforded the highest level of protection. Its intrinsically dangerous nature does not mean that this right is interpreted or limited differently.
Judge Clarence Thomas – perhaps the most conservative judge on the court – wrote the majority opinion. According to Thomas, we do not need to ask the prior permission of a government official to exercise a constitutional right: “We do not know of any other constitutional right that a person can exercise only after demonstrating to government officials some special need.” Thomas concludes that the Bill of Rights, including the Second Amendment, “demands our unconditional respect”.
This means that local government can regulate, but not eliminate, a fundamental right, including the right to carry a firearm concealed. Any acceptable regulation requires a mandatory public interest with strong evidence of the necessity and effectiveness of regulation.
A constitutional argument for stricter regulation
The dissenters were led by Judge Stephen Breyer, who began his dissent with the number of Americans killed by firearms in 2020 at 45,222. His longstanding view is that the Second Amendment deals with a more dangerous law and is therefore more open to regulation.
In Breuer’s view, the majority decision “refuses to take into account government interests that justify the contested gun provision.” Breuer concludes that “the main difference between the Court’s view and mine is that I believe that the Amendment allows States to take into account the serious problems associated with gun violence… I fear that the Court’s interpretation ignores these significant dangers and leaves States without being able to contact them.
New reading of the Constitution
The majority opinion on the Second Amendment is part of a dramatic change in the Court’s understanding of the Constitution. The shift reflects the recent arrival of Conservative Justice Amy Coney Barrett, expanding the previous majority of five to a supermajority of six.
The new super-majority, put forward by Republican presidents, insists that the Constitution is not a living document that evolves as society’s beliefs and values change. This has been a longstanding view, more influential in the court since the rights revolution of the 1960s and 1970s, but is now held by only a minority of judges.
The conservative majority believes that the Constitution should be read as understood by those who wrote and ratified it. This is often referred to as “originalism”.
The implications of this shift are only now becoming clear. Beyond this gun ruling, the repercussions will continue to show up in decisions about abortion, religion, criminal justice, environmental regulation, and many other issues.
As a keen observer of the Supreme Court, I believe that the most concise way to describe the change in the court’s understanding of rights is that the explicit protections in the Bill of Rights – such as the free exercise of religion, freedom of speech, freedom of the press – will carry greater weight and respect. , while additional protections outside the Bill of Rights that were eventually recognized by the courts – abortion, privacy, same-sex marriage – will not enjoy the same protection and respect.
The original reading means that the enumerated rights of the Amendments, including the Second Amendment, do not apply to majority rule. They are basic, established rights.
But other public debates on issues outside the Bill of Rights, including abortion, are left to state legislatures. This is a dramatic shift in the meaning and application of the US Constitution.
State of gun regulation
The new majority decision does not push for states to adopt the most unrestricted concealed carry standards that states like Maine or Texas have. Only states with the strictest gun laws, including California and New York, will be forced to change policies.
Judge Brett Kavanaugh wrote a separate opinion emphasizing that “the court’s decision does not prevent states from imposing licensing requirements for carrying a handgun in self-defense.” He stressed that “when properly interpreted, the Second Amendment allows for ‘diversity’ in gun regulations.”
The majority opinion states, in part, that the concealed carry of firearms in secret places can be regulated: “We can consider that this is decided”, that the ban on concealed carry in secret places, including historically permitted ones, such as “legislative assemblies , polling stations and courthouses” as well as other “new and similar sensitive locations permitted by the constitution.” This likely includes government buildings, stadiums, churches and schools.
“Change American Law”
This landmark ruling on the meaning and application of the Second Amendment changes the laws in several states that would prefer to impose stricter restrictions on the concealed carry of firearms.
More broadly, it announces a major shift in how the court will understand the nature of rights under the Constitution.
Liberal judges, in a waning minority, believe the new approach changes American constitutional law “without regard to potentially deadly consequences.” The new majority sees the Constitution and the Bill of Rights in a more uncompromising light that will reshape American law in the coming years.