June 23, 2022 – Today, in a 6-3 decision, the U.S. Supreme Court held that New York State’s law requiring a license to carry a handgun in public for purposes of self-defense based on a “proper cause” standard violates the right to keep and bear arms.  In New York State Rifle & Pistol Association, Inc. v. Bruen, the majority held that the “Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”  It reiterated that “individual self-defense is ‘the central compo­nent’ of the Second Amendment right.” It further held that because New York “issues public-carry licenses only when an applicant demonstrates a special need for self-defense,” it is unconstitutional.  In that regard, the Court noted that it is not aware of any “other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”
New York’s Sullivan Law, passed in 1911, makes it a criminal offense to carry – or even possess – a handgun without a state license.  New York courts have held that to establish proper cause to obtain a license to carry a handgun, an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community,” such as “evidence ‘of particular threats, attacks or other extraordinary danger to personal safety.’”  A general desire to carry a handgun for purposes of self-defense is not sufficient.
The Court noted that since the Heller and McDonald decisions, the lower courts have adopted a two-step test for deciding Second Amendment cases that “combines history with means-end scrutiny,” such as intermediate or strict scrutiny.  In today’s decision, the Supreme Court rejected that two-step approach and held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”  In order to justify laws regulating the right to keep and bear arms, the government must:

[D]emonstrate 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.”

The majority opinion noted that the Second Amendment was intended to “codify a pre-existing right,” and no deference is owed to legislatures when considering laws that restrict the right to keep and bear arms.  This is because the:

Sec­ond Amendment “is the very product of an interest balanc­ing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. **** It is this balance—struck by the traditions of the American peo­ple—that demands our unqualified deference.

The Court specifically observed that the proper inquiry “re­quires courts to assess whether modern firearms regula­tions are consistent with the Second Amendment’s text and historical understanding.”  It also observed that the Second Amendment allows restrictions on carrying firearms in “sensitive places,” where the carrying of firearms was historically restricted, but not to entire places, such as Manhattan, or places where large numbers of people congregate.  The decision explained that the scope of right to publicly carry handguns was the same in 1791 as in 1868.  It noted that the historical restrictions on publicly carrying handguns were related to the “intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms.”  Because New York’s “proper cause” requirement to carry handguns has no historical support, it is unconstitutional.
Finally, the majority noted that the decision should not be interpreted to suggest that the laws in forty-three states providing “shall-issue” licensing regimes to carry handguns in public are unconstitutional.  However, the law in those jurisdictions could be deemed unconstitutional if “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
The Court remanded the case “for further proceedings consistent with this opinion.”  Based on the decision, we expect that New York will amend its requirements to obtain a license to carry a handgun in public for purposes of self-defense. We also anticipate that there will be further challenges to the constitutionality of the revised laws enacted by New York, which are likely to attempt to be as restrictive as possible in an effort to avoid complying with the clear language of today’s decision.
If you have any questions concerning the Second Amendment, New York handgun laws, or today’s decision in the Bruen case, please contact John F. Renzulli or Christopher Renzulli.