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:
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.”
[more to come … stand by]
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