BREAKING: SCOTUS tosses "may issue" firearm carry permit laws in Bruen, 6-3

Erin Schaff/The New York Times via AP, Pool

A blockbuster extension of Heller and McDonald has tossed out state requirements to demonstrate a need to carry a firearm, and on the expected 6-3 split. Justice Clarence Thomas wrote the opinion in New York State Rifle & Pistol Association v Bruen, holding that states demanding a special reason to grant access to the right to bear arms violates both the Second and Fourteenth Amendments.

Get ready for fireworks:

In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Needless to say, this will reverberate through those half-dozen states on a legal/policy basis. It will reverberate everywhere else on a political basis. However, as Thomas writes, the plain reading of the Second Amendment shows that American citizens have the right to “bear arms” as well as keep them. If the state can show that certain citizens should have those rights restricted on a rational basis that can withstand strict scrutiny, such as criminal records or mental-illness commitments, those restrictions can stand.

Having bureaucrats choose by whim which citizens can and cannot exercise that right cannot fly, however. And that’s how these “may issue” states approach permit issuance.

Furthermore, this outcome seemed pretty clear once the majority refused to moot Bruen. New York tried to modify the law to keep the Supreme Court from issuing a broad decision that would eliminate all laws designed to allow for case-by-case authorization of carry permits. That will have a significant impact on cases already in the pipeline such as the Ninth Circuit’s weird decision in Young v Hawaii that preserved a similar restriction by ruling that Hawaiian tradition trumped the US Constitution. I had hoped to see the court take on Young just for the pleasure of reading the opinions. Bruen, however, has mooted Young, and even the Ninth Circuit will likely grasp this.

More from Thomas, who explains why this case needed no “two step” approach:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961). …

As the foregoing shows, Heller’s methodology centered on constitutional text and history. Whether it came to defining the character of the right (individual or militia dependent), suggesting the outer limits of the right, or assessing the constitutionality of a particular regulation, Heller relied on text and history. It did not invoke any means-end test such as strict or intermediate scrutiny.

Moreover, Heller and McDonald expressly rejected the application of any “judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’” Heller, 554 U. S., at 634 (quoting id., at 689–690 (BREYER, J., dissenting)); see also McDonald, 561 U. S., at 790–791 (plurality opinion) (the Second Amendment does not permit—let alone require—“judges to assess the costs and benefits of firearms restrictions” under means-end scrutiny). We declined to engage in means-end scrutiny because “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U. S., at 634. We then concluded: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

Precisely. The framers of the Constitution set up these enumerated rights to prevent precisely that outcome. In fact, Thomas may present the best summation of the majority in footnote 8, addressing a complaint from the dissent authored by Justice Stephen Breyer, emphasis mine:

8The dissent claims that we cannot answer the question presented without giving respondents the opportunity to develop an evidentiary record fleshing out “how New York’s law is administered in practice, how much discretion licensing officers in New York possess, or whether the proper cause standard differs across counties.” Post, at 20. We disagree. The dissent does not dispute that any applicant for an unrestricted concealed-carry license in New York can satisfy the proper-cause standard only if he has “ ‘ “a special need for self-protection distinguishable from that of the general community.” ’ ” Post, at 13 (quoting Kachalsky v. County of Westchester, 701 F. 3d 81, 86 (CA2 2012)). And in light of the text of the Second Amendment, along with the Nation’s history of firearm regulation, we conclude below that a State may not prevent law-abiding citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense. See infra, at 62. That conclusion does not depend upon any of the factual questions raised by the dissent. Nash and Koch allege that they were denied unrestricted licenses because they had not “demonstrate[d] a special need for self-defense that distinguished [them] from the general public.” App. 123, 125. If those allegations are proven true, then it simply does not matter whether licensing officers have applied the proper-cause standard differently to other concealed-carry license applicants; Nash’s and Koch’s constitutional rights to bear arms in public for self-defense were still violated.

If the right to keep and bear arms is fully incorporated under the Fourteenth Amendment, which is what the court decided in Heller and McDonald, then it cannot be restricted to a grant of permission on the basis of need by the government. That’s a straightforward progression based on the precedents and the very text of the Constitution. Thomas then provides a lengthy and entertaining overview of English and American jurisprudence on the bearing of arms, but none of it points to a significant tradition of arbitrary access to self-defense firearms, let alone access to a constitutional right.

Alito endeavors to be more succinct, and rips the dissent for a series of lengthy non-sequiturs about gun violence:

Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561 U. S. 742 (2010), about restrictions that may be imposed on the possession or carrying of guns.

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post, at 1–8 (opinion of BREYER, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post, at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

What is the relevance of statistics about the use of guns to commit suicide? See post, at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).

The dissent in Bruen mainly comes as a regurgitation of the dissents in Heller and McDonald, in other words. None of it relates to whether a government can demand that a citizen justify his exercise of an enumerated constitutional right before being allowed to do so. That’s the issue at hand in Bruen, and in Young v Hawaii as well, and the majority correctly focus on that issue rather than allow themselves to get sucked into policy issues.

Justices Brett Kavanaugh and John Roberts wrote a concurrence to make clear that this decision doesn’t require all states to adopt a “constitutional carry” regime either:

That’s a good point to make, mainly for public relations, since Thomas doesn’t suggest that “shall issue” laws are a problem. They aren’t, because the burden transfers to the government in “shall issue” states, which have to have real, established, and rationally applied restrictions to keep individuals from getting a permit. “Shall issue” doesn’t allow for arbitrary and capricious permit decisions, nor does it require applicants to justify their choice to exercise a constitutional right.

Don’t expect the media to recognize this, of course. We’ll get another round of hearing about the supposedly radical court, but the majority in this case followed the Constitution. If people want to change the Constitution, they need to follow the proper mechanisms for it, not demand that courts offer interpretations that add to or change the text. That will likely be at issue in the Dobbs decision, assuming it follows the leaked Alito draft.

Today was not the day for Dobbs, but that decision might come tomorrow. The court added it as a decision day yesterday, raising questions as to what purpose they might have in mind. With the four opinions today, almost all of which were technical in nature, the court only has nine cases left to decide and publish, and arguably three decision days left (next Monday and Thursday, possibly). It might be a good idea to issue Dobbs before the weekend in a kind of Friday document dump to allow the weekend to pass afterwards. However, it would likely be a lot better for the justices to release Dobbs on the final decision day and let three months pass afterwards. Stay tuned.