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Abstract
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On June 23, 2022, the U.S. Supreme Court decided its first Second Amendment firearms case in over a decade. Its decision is enormously consequential--and highly encouraging for those who wish to see the individual right to keep and bear arms enforced according to its text. Building on District of Columbia v. Heller and McDonald v. Chicago, the Court held in New York State Rifle & Pistol Association v. Bruen that the Second Amendment's protection of "the right to keep and bear arms" extends to individual self-defense outside the home. While that may seem obvious and uncontroversial given the text of "to bear arms," some lower courts provided limited constitutional protections to the right by effectively treating it as a privilege--the en banc Ninth Circuit even going so far as to hold that there is no right to carry arms outside the home at all.
Bruen further held that an individual's ability to obtain a carry license cannot be conditioned on her ability to convince a government official that she faces some "special need for armed self- defense" that is different from the defense needs of the general populace. Six states, including New York, had denied the Second Amendment right to carry to the majority of their citizens--in some states nearly all citizens--by applying an amorphous, discretionary test requiring the applicant to show a special need to carry a firearm. In contrast to these outlier regimes, the Court cited with approval the forty-three states that have "shall-issue" permitting regimes, in which carry licenses or permits must be issued to anyone who meets specific, objective criteria.
These holdings alone would go far to overcome the Second Amendment's treatment as a "disfavored right" and "constitutional orphan" by the lower courts. At a stroke, the Court invalidated the outlier "may-issue" approach in the six states and effectively required them to replace those restrictive regimes with "shall-issue" systems like those in the forty-three other states. As the Court noted, "these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'" They are thus consistent with the Second Amendment, to the extent they "contain only 'narrow, objective, and definite standards' guiding licensing officials" rather than discretionary standards that require the "exercise of judgment" on the part of the licensing officer.
However, several of the six restrictive states whose laws were effectively invalidated in Bruen, including New York itself, moved immediately to circumvent the decision and to deprive their citizens of any effective right to self-defense in public. New York has done this in two major ways. The first is to enormously expand the places in which a person with a valid license cannot carry a firearm for self-defense...
... The Bruen approach also vindicates the Constitution's faith in the American people. There are many constitutional rights that are built on this faith. Indeed, the whole idea of a republican form of government rests on the presumption that the people ultimately are the source of authority and sovereignty in the Nation. And we have seen the practical wisdom of Americans in practice with respect to the right to arms specifically.
Weapons like muzzle-loading black powder cannons have existed for centuries, were unregulated at the Founding, and generally remain unregulated today. Crank-fired Gatling guns have been around for over a century and a half and remain legal at the federal level. Yet, we have not seen Americans rush to acquire or use these powerful weapons for improper purposes. They have acted with restraint. Our fellow law-abiding citizens best understand their needs for self- defense and have proven that they can be trusted to determine how best to protect themselves, their families, and their communities.
It has taken well over two centuries for the American people to see the Supreme Court fully induct the Second Amendment into the family of constitutional rights. Bruen's clear and welcome injunction to the lower courts to faithfully apply the Constitution's text and history should keep it there in the years to come. Bruen is not just a victory for the right to keep and bear arms. It is a victory for originalism, constitutionalism, and the rule of law--and it should be recognized and celebrated as such.
Available:
https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2022/08/Smith-Bruen-vF1.pdf
Language: en |