- The Washington Times
Thursday, June 23, 2022

The Supreme Court delivered a forceful affirmation of gun rights Thursday by striking down a New York law that required residents to show they faced a particular danger before they could obtain a permit to carry a concealed firearm.

The 6-3 decision was the justices’ first major gun ruling in years. It was handed down amid a revived debate over access to weapons, fueled by high-profile mass shootings in Uvalde, Texas, and Buffalo, New York.


Gun control advocates vowed to pursue further restrictions despite the high court’s ruling, but Justice Clarence Thomas’ majority opinion will make that difficult.

He said the right to bear arms for personal protection cannot be left to vagaries of state legislatures’ decision-making and the Second Amendment that enshrines that right deserves “unqualified deference” from judges.

That doesn’t mean no restrictions are allowed, he said, but any that would have seemed bizarre to the generation that ratified the Bill of Rights cannot be made constitutional by the passage of time or changing beliefs about firearm ownership.

“Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation,” he wrote. “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.’”


SEE ALSO: N.Y. Gov. Kathy Hochul eyes special legislative session to respond to Supreme Court gun ruling


He was joined in the ruling by the court’s Republican-appointed justices: Chief Justice John G. Roberts Jr., Justice Samuel A. Alito Jr., Justice Brett M. Kavanaugh, Justice Neil M. Gorsuch and Justice Amy Coney Barrett.

The ruling invalidated New York’s law governing concealed-carry permits, which required applicants to show they had a particular fear that justified the need to carry a weapon. Living in a high-crime neighborhood, for example, wasn’t necessarily a good enough reason.

Critics said the law effectively blocked most New Yorkers from legally carrying weapons outside their homes.

Five other states covering about a quarter of the country’s population — California, Hawaii, Maryland, Massachusetts and New Jersey — have similar “may-issue” laws on the books, and so does the District of Columbia, though its statute has been on hold under a 2017 court ruling.

All of those laws are suspect, Justice Kavanaugh wrote in a concurring opinion.

That doesn’t mean states can’t impose training requirements or additional background checks on permit holders, but the criteria must be “objective,” Justice Kavanaugh said. He said 43 states have “shall-issue” policies, many of them with restrictions, that aren’t in trouble after Thursday’s decision.

New York Gov. Kathy Hochul, a Democrat, vowed to enact a law through the Legislature. She said she is ready to take the state “back to muskets” through restrictions.

Maryland Attorney General Brian E. Frosh, another Democrat, also sounded a defiant note.

“Today’s decision means more deaths and more pain in a country already awash in gun violence,” he said. “If the norm is that people can carry firearms, our neighborhoods, our streets and other public places will become more dangerous.”

He said he would “examine today’s ruling to determine its impact in our state.”

One idea gaining ground was to expand definitions of “sensitive locations” where firearms possession would be denied even to concealed-carry permit holders.

The court’s three Democratic-appointed justices dissented. They said New York was engaged in the reasonable balancing of individuals’ rights versus its own interests in safety.

“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead states to regulate firearms,” Justice Stephen G. Breyer wrote for the dissenters.

It was the first time in more than a decade that the justices addressed Second Amendment rights. The last major cases were in the 2008 Heller and 2010 McDonald decisions, when the court established the right to bear arms as a personal right rather than a collective right of defense.

The ruling comes on the heels of two mass shootings in recent weeks: one in Buffalo, where 10 people were gunned down at a grocery store, and another in Uvalde, where a man opened fire in an elementary school classroom, killing 19 students and two teachers.

Those shootings loomed large for the dissenters, who detailed the prevalence of firearms in America — nearly 400 million held by civilians, or more than one per person — and the litany of violence tied to those weapons.

“Worse yet, gun violence appears to be on the rise,” Justice Breyer wrote. He was joined by Justices Sonia Sotomayor and Elena Kagan.

Justice Breyer said it was understandable that states would seek to impose restrictions in the face of firearms violence.

Justice Alito, writing a concurring opinion with the majority, said Justice Breyer’s dissent boiled down to a belief “that guns are bad.”

“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,” he added.

Justice Alito said the ruling does not decide anything about who may lawfully own or buy a firearm or which types of weapons Americans can possess.

Just after the ruling came down, the Senate voted to overcome a filibuster and advance a bipartisan bill that would expand background checks and encourage states to adopt “red flag” laws restricting who can possess firearms.

The House has passed legislation to raise the legal age for buying semi-automatic rifles from 18 to 21 and to ban sales or possession of magazines holding more than 15 rounds of ammunition.

President Biden, while taking a swipe at the court, urged states to enact restrictions. He said he is doing what he can with executive powers.

“This ruling contradicts both common sense and the Constitution and should deeply trouble us all,” he said.

Senate Majority Leader Charles E. Schumer, New York Democrat, predicted that the high court’s standing with the public will be further eroded by Thursday’s ruling.

“With this far out-of-the-mainstream and dangerous decision that flies in the face of overwhelming public support for rational gun safety measures, it’s no wonder the public is increasingly losing faith in the Roberts Court,” he said.

Republicans celebrated the ruling.

“This decision puts an end to government intrusion into the lives of Americans looking to defend themselves and their families, and this is a huge win for law-abiding gun owners across America,” said Sen. Steve Daines, Montana Republican.

Justice Thomas wrote that the ruling followed logically from the Heller and McDonald cases.

The Heller decision traced back to the country’s founding and the writing and ratification of the Second Amendment, when firearms ownership was widely countenanced.

Justice Thomas said that kind of historical analysis should be undertaken for courts as they look at current gun laws. If the law would strike the founding generation as odd, it probably can’t survive scrutiny, he said.

Appeals courts, in the wake of Heller, developed a two-step approach, starting with history but then asking whether a state’s interests — or “means-end scrutiny” — justified the law.

Justice Thomas said that was “one step too many.” The inquiry should end with history.

Jacob D. Charles, a law professor at Duke University, said the decision could reopen areas of gun jurisprudence that had been thought settled, as plaintiffs and judges go searching in history to determine whether laws would have passed muster for the founders.

“It mandates that text and history take center stage in assessing whether gun laws are constitutional, making irrelevant conventional questions in constitutional litigation about the empirical effectiveness of specific regulations and how tailored a law is to meet a given government interest.”

Mark Smith, a senior fellow in law and public policy at King’s College in New York, said the ruling applies only to the may-issue states.

“The truth is it’s really an incremental change,” Mr. Smith said. “It’s bringing those outliers into line with the rest of America.”

The case, New York State Rifle & Pistol Association v. Bruen, involved two New York residents, Brandon Koch and Robert Nash, who had sought concealed-carry permits.

Mr. Nash cited a string of robberies in his neighborhood and verified that he had taken an “advanced firearm training course.” The officer who reviewed his application said that wasn’t a good enough reason. He was approved only for a permit allowing him to carry a firearm outside the home to hunt or target shoot.

Mr. Koch noted in his application his “extensive experience” with handling firearms in a safe manner. He was also issued a hunting and target shooting permit, though with a modification allowing him to carry to and from work.

Both men are members of the New York State Rifle & Pistol Association.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.


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