The US Federal Right of Private Citizens to Bear Arms

[Boydstun]

Today the US Supreme Court is hearing arguments in New York State Rifle & Pistol Association v. Bruen (who is the NY Police Supt.) and hearing address of the question: “whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

Under the present NY gun-control law two citizens not felons were denied licenses to carry handguns at all times. They were authorized to carry them for target practice and hunting away from home, and one of these two challengers of the law was authorized to carry a gun to and from work.

Defenders of the NY law have argued that public carry of guns has been variously prohibited and regulated across several centuries of American law and antecedent English law. They argue that the statue of NY fits well within that tradition of firearm regulation. “One of the longest continuous traditions in Anglo-American law are limits on the public carry of arms in populous areas.”

Challengers to the NY law argue that the discretionary element in it makes it effectively impossible to get an unrestricted license to bear arms. They maintain that local officials should not have the power to determine who is fit to carry a gun. “The Second Amendment makes the right to carry arms for self-defense the rule, not the exception, and fundamental rights cannot be left to the whim of local government officials.”

About a quarter of the US population lives in a state having gun laws similar to New York’s.

[Boydstun]

In the preceding case for the state law in New York, the US Supreme Court struck down the law as in violation of the individual right to bear arms. 

Quote

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part 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).3

. . .

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment— “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”). We have already recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” 554 U. S., at 582. “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Ibid. (citations omitted). Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense. Cf. Caetano v. Massachusetts, 577 U. S. 411, 411–412 (2016) (per curiam) (stun guns). Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all 20 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN Opinion of the Court analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.” While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense. As we stated in Heller and repeated in McDonald, “individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599); see also id., at 628 (“the inherent right of self-defense has been central to the Second Amendment right”). Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are “‘central’” considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).7 —————— 7This does not mean that courts may engage in independent meansend scrutiny under the guise of an analogical inquiry. Again, the Second Amendment is the “product of an interest balancing by the people,” not the evolving product of federal judges. Heller, 554 U. S., at 635. Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances, and to be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modernday regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

 

[Boydstun]

 

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Edited December 19, 2023 by Boydstun