A Right to Conceal and Carry? – brennancenter.org

In the coming days or months, the Supreme Court will rule on one of the most important gun cases in the high courts history. The case addresses whether gun owners have a constitutional right to carry their arms outside their homes and, if so, whether restrictive concealed carry licensing laws violate the Second Amendment. Law professor and Brennan Center Fellow Eric Ruben discusses the case and its implications.

Ruben: Brueninvolves a New York State law limiting who can carry a concealed handgun in public. For more than a century, New Yorkers wanting a license to carry a concealed handgun for self-defense have needed to show that they have what the law calls proper cause basically a greater need for self-protection than others in the community. A judge determined that the plaintiffs inBruendid not satisfy that standard. They both received concealed carry licenses, but they were restricted in terms of where they could carry their handguns. For example, one plaintiff wasissued a licenseto carry a concealed handgun while traveling to and from work, and both plaintiffs licenses permitted them to carry concealed handguns for hunting, target practice, and in certain areas not frequented by the general public.

Along with the National Rifle Associations New York affiliate, the plaintiffs sued, contending that the limitations placed on their licenses violate the Second Amendment. They argue that the Second Amendment protects their right to carry a handgun virtuallywhenever and whereverthe need for self-defense might arise.

For more analysis on gun rights and regulations, check out the Brennan Centers Protests, Insurrection, and the Second Amendment series.

Ruben: InHeller, a bare majority of the justices struck down Washington, D.C.s ban on handguns in the home. The Supreme Court held, for the first time in over 200years, that the Second Amendment protects an individuals right to keep and bear arms centered, not around a well regulated Militia, but rather, around the inherent right of self-defense.

Hellerwas a landmark case, constitutionalizing a vast policy area the regulation of weapons. That said, the law at issue was an outlier because only two major cities in the country, DC and Chicago, had such a handgun ban.

The law challenged inBruen, in contrast, affectsa lotmore people than the handgun ban at issue inHeller. New York isone of eight heavily populated statesrequiring that people seeking to carry a concealed handgun have a heightened need to do so. If the high court strikes down New Yorks law, it will have immediate implications in these states home to roughly one-quarter of Americans.

Moreover, the impact on people in these states arguably will be more significant than the impact ofHelleron people living in DC and Chicago.Hellerruled on the right to have a gun in ones own home. If the Supreme Court rules that proper-cause laws are unconstitutional, residents of these eight states can expect to interact with more people armed with a deadly weapon. Gun rights advocatessaythat is a good thing for society that an armed society is a polite society but others, including the weight of scholarship,suggestotherwise.

Ruben: Of course, Ill be watching for the ruling on proper-cause permitting laws. The Supreme Court could uphold New Yorks law, but after oral arguments many court watchersthinkthat is unlikely. The Court could also strike down the challenged aspect of the law, the proper cause requirement, which would keep in place licensing, but remove most of its teeth. Another possibility is a middle-ground ruling. For example, at oral argument, the plaintiffs attorney said that his clients had no intention of going into New York City with their handguns. The justices could use that concession to limit their ruling to non-urban places.

Another thing Ill watch for is whether the Court uses this opportunity toannouncenew Second Amendment doctrine, such as a judicial test deeming modern gun violence irrelevant and history and tradition paramount. That would be highly consequential because it would affect the Second Amendment analysis ofallchallenged weapons laws, not just proper-cause restrictions.

AfterHeller, the lower courts have decided over 1,000Second Amendment cases about everything from felon-in-possession prohibitions to assault-weapon bans. In doing so, they have applied a conventional approach that considers, among other things, modern public safety concerns. If a majority of the justices decide that Second Amendment cases should be resolved solely on the basis of text and history, not modern safety, we can expect a new round of litigation challenging laws previously upheld under the conventional approach.

Ruben: The second-class right trope has become increasingly common in some circles and may feature in the Courts opinions. In a recent study, Joseph Blocher and I foundno strong empirical supportfor the allegation of widespread mistreatment of gun rights in the courts. Among other things, the success rate of Second Amendment claims isconsistent with that in other constitutional contexts.

But the contention of second-class treatment, which has anunmistakably partisan cast in court opinions, could nonetheless have a profound impact. If a majority of the justices come to accept the second-class claim, that could rationalize a decision to bolster judicial scrutiny of gun laws and further limit the ability of governments to regulate in this area.

Ruben: Policymakers will probably adapt to the changed circumstances and seek out alternative routes for regulation. I have a forthcomingessayin the Harvard Law Review Forum about how criminal laws governing gunuse, as opposed to guncarrying, provide incentives and disincentives for public carry through mechanisms like sentence enhancements, self-defense elements, burdens of proof, and legal inferences. If the Supreme Court strikes down New Yorks proper cause requirement, one avenue for regulation might be blocked, but that would merely redirect policymakers down other avenues.

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A Right to Conceal and Carry? - brennancenter.org