The Right to Bear Arms is Not what’s at Stake, Gun Violence Is:Why the Supreme Court must take a Special Interest in Protecting State Gun Control Legislation
The Second Amendment of the United States Constitution states that:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.[1]
In the state of New York, the law stipulates that it is a crime for any person to possess a firearm small enough to be concealed without a license, whether the person is inside or outside the home. This law is commonly known as the Sullivan Act. In the case that a person wants to carry a firearm outside of his home, he must satisfy certain requirements. The person must apply for and obtain an unrestricted license to “have and carry [a] concealed pistol or revolver [if the person can prove that] proper cause exists for the issuance thereof”— pursuant to New York Penal Law section 400.00(2)(f).[2]
In light of this law, two Rensselaer County residents — Robert Nash and Brendan Koch — applied for a license to carry a handgun in public. Nash specifically justified his application for a license due to a series of robberies in his neighborhood and he had recently completed an advanced firearm safety training course. Similarly, Koch also contended a license would allow him to carry a firearm for self-defense because of his extensive experience in the safe handling and operation of firearms. Despite their claims, New York state licensing officials denied their applications, citing that the applicants did not show “proper cause” standard required by New York law. Textually, the Sullivan Act does not specifically define “proper cause.” As a result, New York case law emerged to define “proper cause as requiring an applicant to ‘demonstrate a special need for self-protection distinguishable from that of the general community.’” Therefore, state licensing officials found Nash and Koch’s arguments to be insufficient and misaligned with the “proper cause” standard.[3]
In response, Nash and Koch cooperated with the New York State Rifle and Pistol Association and filed a federal civil lawsuit against the state of New York — specifically the Superintendent of the New York State Police Kevin P. Bruen and New York Supreme Court Justice Richard J. McNally Jr. — on grounds that the Sullivan Act violated their Second and Fourteenth Amendment rights. Both of the aforementioned respondents of the suit oversee the enforcement of New York’s licensing laws and the processing of licensing applications in Rensselaer County respectively. Despite the petitioners’ efforts, the U.S. District Court for the Northern District of New York dismissed the suit, and on appeal, the U.S. Court of Appeals for the 2nd Circuit affirmed the lower court’s decision.
However, on April 26, 2021, the Supreme Court of the United States granted certiorari. On June 3, 2022, Justice Thomas delivered the majority opinion ruling in favor of the plaintiffs. He concluded that “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”[4] This judicial mandate ultimately expands the constitutional scope of gun rights in America—effectively lifting restrictions on Americans seeking to carry a concealed handgun outside of their homes. This new precedent is a continuation of “anti-gun control” rulings that have been handed down by the highest court over the past 15 years. Alongside cases like District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), New York State Rifle and Pistol Association v. Bruen has consistently impeded the states’ efforts to reduce gun-related violence. The court majority has prioritized the unconditional, free liberty to bear arms, rather than considering the appropriate, and relevant alternative—to protect state regulatory gun laws that emerged in response to rising casualties of gun violence in America. Although federal legislation is the most effective method of reducing gun violence, consistent opposition from the Republican party has made it infeasible. Rather than hopelessly waiting and relying on the federal government to initiate change, states themselves must take the immediate step to pass additional measures that will protect as many American citizens from gun violence.
In order to identify the key issue instigating the clash between the Supreme Court’s interpretation of the Second Amendment and state gun control laws, it is imperative to understand the various interpretive methods Supreme Court justices have used over time to determine the constitutional scope of “gun control.” Throughout early American history, the Second Amendment has rarely been explored and examined by the Supreme Court. In 1931, United States v. Miller was one of the first Supreme Court cases that directly involved the Second Amendment. This case primarily focused on the constitutionality of the National Firearms Act of 1934, a law that implicated two men who were caught transporting a sawed-off double-barrel 12-gauge shotgun in interstate commerce.[5] Consequently, the court ruled in favor of the United States, concluding “only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.”[6] It wasn’t until 2008 when the Supreme Court finally heard arguments regarding an individual’s right to keep and bear arms that were independent of the "militia clause" in the Second Amendment.
In 2008, a key constitutional question was raised over a law passed by the Council of the District of Columbia — the Firearms Control Regulation Act of 1975 — “which, in response to increasing gun violence and accidental deaths…banned ownership of handguns and required that lawful handguns be registered within the city.”[7] In light of this law, Heller— a D.C. special police officer — applied for a license to keep a handgun in his home for one year, but his application was denied. In response, he filed a lawsuit against the District of Columbia, arguing that the requirement for a license and the prohibition on functional firearms in the home violated his Second Amendment right to self-defense. The district court dismissed the case, but the U.S. Court of Appeals for the District of Columbia Circuit overturned the decision and ruled that the Second Amendment protects the right to keep functional firearms in the home for self-defense purposes. The Supreme Court granted a petition for writ of certiorari and ultimately affirmed the court of appeals’ ruling. In this ruling, Justice Scalia conclusively determined that in the Second Amendment, the “operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms…and that the Court’s interpretation is historically confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.”[8] When considering the alarming rates of gun-related violence in America throughout recent years, this strict theoretical and historical approach to the constitutional scrutinization of “gun control” is insubstantial. Justices who dissented at the time have comprehensively disputed that this method of interpretation failed to acknowledge the mass infiltration of guns in society and its tragic consequences.
Around the same time the Heller decision was announced, another case emerged at the center of the gun debate in America. In McDonald v. Chicago, Otis McDonald and others filed a lawsuit in the U.S. District Court against Chicago over a 1982 law that banned the new registration of handguns and required registration as a prerequisite for firearm possession. The plaintiffs claimed that the law violated their right to possess and carry firearms, which had been protected by the Second Amendment in District of Columbia v. Heller (2008). Citing “selective incorporation,” the plaintiffs argued that the Second Amendment should be applied to the states through the Fourteenth Amendment's due process clause and "privileges or immunities'' clause, which prohibits states from abridging the privileges or immunities of U.S. citizens. The district court dismissed the case, and the U.S. Court of Appeals for the Seventh Circuit upheld the lower court's decision. In spite of these rulings, the Supreme Court granted the plaintiffs' petition for certiorari on September 30, 2009. In its ruling, the Supreme Court reversed the appellate court’s decision. Justice Samuel A. Alito, writing for the majority, argued that certain rights that are considered "fundamental to the Nation’s scheme of ordered liberty" or "deeply rooted in the nation's history and tradition” should be applied to the states through the Fourteenth Amendment. The Court recognized that the right to self-defense, as established in the case of Heller, is one of these "fundamental" and "deeply rooted" rights and therefore falls under the purview of the Second Amendment as applied to the states.[9] Comparable to Justice Scalia, Justice Alito also relies on theory—in this case, the incorporation doctrine—and historical argumentation to safeguard gun control rights. Rather than trying to curb incidents of gun violence, the Supreme Court majority has consistently focused on mitigating legal “threats” that jeopardize Americans’ right to bear arms.
However, upon examining the dissenting opinions written by Justice Breyer in Heller, McDonald, and the most recent ruling on Bruen, he consistently includes an important and key characteristic in his argument that is relevant and necessary for shaping the legal scope of gun rights in America: Empirical evidence. Contrary to his conservative counterparts who rely on a narrow, philosophical approach, Justice Breyer and his liberal peers emphasize the sobering reality of gun violence in the United States. Below are a few of many examples in which Justice Breyer cites critical data detailing the consequential impacts of handguns and the importance of considering such evidence when crafting judicial decisions on cases involving gun control. All of the quotes presented below are part of his dissenting opinion in each of the past three Supreme Court cases on American gun rights:
Heller “The major substantive goal of the District’s handgun restriction is ‘to reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia.’ The committee report presented statistics strongly correlating handguns with crime. Of the 285 murders in the District in 1974, 155 were committed with handguns.”[10]
McDonald
“An amicus brief in the Chicago case says that the handgun ban there may have saved close to a thousand lives since its enactment, but as they have here, challengers to regulations are going to argue to the contrary. Well, who is right and how are judges supposed to answer these questions? Legal reasoning is not just going to somehow mechanically find the answer….courts can’t simply ignore the fact that these answers to these kinds of questions will rest on matters of empirical fact.”[11]
Bruen
“In 2020, 45,222 Americans were killed by firearms. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. Many States have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so.”[12]
Just by scanning over these notable quotes from Breyer in each of his dissenting opinions, it sheds light on the prevalent threat of gun violence in present-day America and implies that a majority of the justices are blind to the current reality. The exposure of this critical flaw significantly reduces the credibility of the majority opinion in each of the Supreme Court’s rulings on gun rights with respect to the Second Amendment. Furthermore, Breyer also stresses an important message in each of his dissenting opinions that is necessary for the American people to hear. He conveys the notion that courts are not the most capable and qualified institution to make the most effective decisions in curbing gun violence; rather, this responsibility should be delegated to and shouldered by state legislatures which have consistently relied on empirical evidence to reduce gun violence through its lawmaking powers.
Although Breyers’ dissenting opinions were not compelling enough to convince the majority of the Supreme Court to uphold state gun control laws, it raises an important question for the future: How can states preserve their gun control laws in the face of judicial opposition? Recently, state legislatures and governors in Democratic strongholds like California, Colorado, New Jersey, Delaware, Illinois, Vermont, and Washington have passed packages of gun control bills into law this past year. Unfortunately, it is uncertain if such laws will survive. According to the Attorney General for Connecticut, William Tong, he stated that after the recent ruling made in New York State Rifle and Pistol Association v. Bruen, there is expected to be “an onslaught of litigation, lawsuits filed by people like the NRA, the gun lobby, people, activists who are trying to dismantle commonsense gun laws.”[13] By dismantling such laws, countless populations are put at risk as laws that were implemented to protect them from handguns are now ineffective. Furthermore, federal legislation has also been shown to be difficult in terms of restricting access to handguns. For example, the Bipartisan Safer Communities Act that was recently signed into law by President Biden includes a significant amount of funding for implementing and running crisis intervention programs, yet, this law fails to ban any weapons.[14]
In spite of these obstacles, state legislatures should continuously rely on their law-making abilities to enact and implement regulations that can reinforce existing gun control laws and fill in loopholes that make it easier for American citizens to access guns. Although state laws are not as influential in scale compared to federal legislation, state legislatures can initiate a variety of provisions. This includes reducing the number of dangerous weapons that can be legally purchased, preventing people who pose a heightened risk to community safety from acquiring guns, and ensuring that those who do own guns are taught how to use them safely. Statistically, research has shown that the weakening/lack of such provisions can lead to an increase in the rate of handgun-related homicides and violent crime rates more broadly.[15]
With respect to the recent ruling made in Bruen to invalidate the "proper cause" requirement in New York's licensing law for carrying firearms, it is also important to recognize that the entire law is not completely nullified. As Justice Alito pointed out in his concurring opinion, he reassures the American people that Bruen does not completely invalidate New York’s licensing regime for the public carry of weapons: “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 … about restrictions that may be imposed on the possession or carrying of guns.”[16] However, before the Court attempts to render any future gun laws obsolete — by reshaping the framework and meaning of the Second Amendment in favor of gun rights advocates — states can and must continue to enact life-saving policies. For example, New York and the five other states with "proper cause" requirements (California, Hawaii, Maryland, Massachusetts, and New Jersey) should pass legislation to ensure that carry permits are only granted to responsible, well-trained individuals who do not pose a risk to themselves or others. These states should also consider prohibiting guns in places such as bars, playgrounds, and polling places, as the presence of guns in such locations can be dangerous. Additionally, states should consider implementing requirements for applicants to demonstrate safe handling of firearms.
Despite the various uncertainties and setbacks “gun control” faces in our current reality, in order to restore America’s faith for a more safe future in the next couple of decades, the ideal solution is for the Supreme Court to recognize and acknowledge the gun crisis in America and act upon it through unprecedented, landmark decisions. However, based on the current judicial record, this request may not be immediately resolved at any point in the near future. In order to effectively suppress gun violence and enhance public safety, state legislatures must focus on implementing new laws and provisions that are relevant to the unique risks their constituents face. Furthermore, state legislatures must also relentlessly pursue common-sense gun reform laws that can withstand judicial review. More precisely, Democratic state legislatures must continue to lead and pave the way for future gun control legislation as they—unlike the federal government—have always been more efficient in implementing such reforms.
References
[1] LII / Legal Information Institute. “Second Amendment.” Accessed December 21, 2022. https://www.law.cornell.edu/wex/second_amendment.
[2] “Article 400 | NYS Penal Law | Licensing Provisions Firearms.” Accessed December 21, 2022. https://ypdcrime.com/penal.law/article400.php#p400.02.
[3] “N.Y. State Rifle & Pistol Ass’n, Inc. v. Beach, 354 F. Supp. 3d 143 | Casetext Search + Citator.” Accessed December 22, 2022. https://casetext.com/case/ny-state-rifle-pistol-assn-inc-v-beach.
[4] Oyez. “New York State Rifle & Pistol Association Inc. v. Bruen.” Accessed December 21, 2022. https://www.oyez.org/cases/2021/20-843.
[5] Oyez. “United States v. Miller.” Accessed December 24, 2022. https://www.oyez.org/cases/1900-1940/307us174.
[6] Justia Law. “United States v. Miller, 307 U.S. 174 (1939).” Accessed December 24, 2022. https://supreme.justia.com/cases/federal/us/307/174/.
[7] Teitelbaum, Joel, and Erica Spector. “District of Columbia v. Heller: Implications for Public Health Policy and Practice.” Public Health Reports 124, no. 5 (2009): 758–60.
[8]LII / Legal Information Institute. “District of Columbia v. Heller.” Accessed December 21, 2022. https://www.law.cornell.edu/supct/html/07-290.ZS.html
[9] Oyez. “McDonald v. Chicago.” Accessed December 28, 2022. https://www.oyez.org/cases/2009/08-1521.
[10] Justia Law. “District of Columbia v. Heller, 554 U.S. 570 (2008).” Accessed December 28, 2022. https://supreme.justia.com/cases/federal/us/554/570/.
[11] Oyez. “McDonald v. Chicago.” Accessed December 28, 2022. https://www.oyez.org/cases/2009/08-1521.
[12] New York State Rifle and Pistol Association v. Bruen, U.S. (2022).
[13] PBS NewsHour. “How the Supreme Court Ruling on Gun Restrictions Will Impact State Laws,” June 23, 2022. https://www.pbs.org/newshour/show/how-the-supreme-court-ruling-on-gun-restrictions-will-impact-state-laws.
[14] “Biden Signs Bipartisan Gun Safety Bill into Law: ‘God Willing, It’s Going to Save a Lot of Lives’ | CNN Politics.” CNN., Accessed December 28, 2022. https://www.cnn.com/2022/06/25/politics/biden-signs-gun-bill/index.html.
[15] “The Supreme Court Has Struck Down Part of New York’s Concealed Carry Law. Here’s What You Need to Know.,” Everytown. June 23, 2022. https://www.everytown.org/what-you-need-to-know-nysrpa-v-bruen/.
[16] Ibid.