A New Life for the Second Amendment?

By Ella Gonzalez

New York City, NY

Security outside the Supreme Court following the June 23rd ruling. (Associated Press)

Former President Trump’s majority conservative Supreme Court sparked much uproar this past June, as a series of decisions sealed its recently established partisan tilt. Amid the furor over the overturning of Roe v. Wade, another ruling offers a glimmer of hope for those who favor more rights, not fewer.


On June 23rd, in New York State Rifle & Pistol Association v. Bruen, the Court voted 6-3 to strike down a New York State law that required applicants for a concealed carry permit to demonstrate “proper cause” and “good moral character” in order to carry concealed weapons in public. The Court declared these rather subjective criteria to place unacceptable conditions on the right under the Second and 14th Amendments to “carry a handgun for self-defense outside the home,” as Justice Clarence Thomas wrote in a majority opinion.


“Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense,” wrote Thomas, “we conclude that the State’s licensing regime violates the Constitution.”


This does not mean, of course, that the Second Amendment has become absolute. Five other states—California, Hawaii, Maryland, Massachusetts and New Jersey—have similar laws which leave the exercise of Second Amendment rights to keep and bear arms in public up to state officials’ determination of an individual’s need. On the other hand, forty-three other states continue to operate under “shall-issue,” and have laws in place that set forth objective, though sometimes stringent, requirements—fingerprinting, background checks, and such. Anyone who requests a permit and meets these criteria is granted one; hence, “shall-issue.” The Court clarified that these are not under threat; the ability to arbitrarily deny permits to law-abiding citizens based on the subjective condition of “need” is what renders New York and similar legislation unconstitutional.


This landmark ruling built upon two of its predecessors, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), and marked the first major expansion of gun rights in over a decade. District of Columbia v. Heller (2008) established the right under the Second Amendment to possess a handgun inside the home; McDonald v. Chicago (2010) applied this ruling to state and local governments in addition to the federal government.


What’s distinct about this ruling, however, is that it doesn’t just overturn the New York legislation—it also sets a new precedent for how cases such as these are evaluated in the future. Since the 2008 and 2010 rulings, lower courts have begun to evaluate gun rights cases using a “two-step” framework, which in practice allows restrictions to stand as long as the government is able to provide a sufficiently coherent reason for their continued existence.


This method attempts to balance rights with government interests, and, in Thomas’s words, “combines history with means-end scrutiny.” The process is as follows: in the first step, courts consider whether the affected rights are consistent with the historical exercise of Second Amendment rights. If history fails to provide a clear answer, the courts proceed to the next step, and evaluate the degree to which the law infringes upon the Second Amendment; more specifically, they evaluate “how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right.” Since 2010, the “core” has been generally understood as the right to self-defense within the home—recall that this was the right affirmed in District of Columbia v. Heller in 2008.


The next step is an interest-balancing test of sorts. An infringement of the right to home self-defense warrants “strict scrutiny,” which demands that the law be “narrowly tailored to achieve a compelling governmental interest.” If the aforementioned right is not affected, “intermediate scrutiny” dictates that it must be at least “substantially related to the achievement of an important governmental interest.” Herein lies the danger of the two-step approach: any rational connection between the regulation and a “legitimate state interest” is generally sufficient justification in the eyes of the courts. This attempt to balance individual and state interests errs on the side of greater regulatory authority, and many believe that this is all but bound to result in concessions to state interests.


In New York State Rifle & Pistol Association v. Bruen, the Supreme Court affirmed a different approach. According to Thomas, the past decade has seen lower courts neglecting the reasoning used in District of Columbia v. Heller, which made use of extensive historical evidence and rejected any “means-end tests.” Thomas outlined the reasoning used in Heller and the recent ruling: “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.”


In justifying the decision in New York State Rifle & Pistol Association v. Bruen, Thomas considered and rejected the historical evidence provided by the state. The Second Amendment, in Thomas’s view, is compromised when it is subject to this balancing of interests, and that “when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.”


Thomas argued: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant's right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”


Will this ruling, and its prioritization of the Second Amendment over state interests, be neglected by lower courts, as Heller and McDonald were? It’s too early to tell what will happen in the long run, but the recent invalidation of the “two-step” process is being used to broaden gun rights all across the nation. On June 30th, the Supreme Court vacated four appeals court decisions and returned them for reconsideration. These included laws in Hawaii, California, New Jersey, and Maryland, that contained similarities to the issue at hand in New York State Rifle & Pistol Association v. Bruen. The Court focused in part on a 9th Circuit case, Young v. Hawaii, which concerned a similar law in Hawaii that required applicants for carry permits to demonstrate “good moral character” and the “the urgency or the need” to engage in the “protection of life and property.”


Gun control protest in front of the Supreme Court in 2019. (Shutterstock)

Another ‘threat’ comes from state officials. Many states retain regulations that require some demonstration of “good moral character” by individuals wishing to secure a permit. Some continue to operate under “may-issue” status (as opposed to “shall-issue,” outlined previously), and impose other subjective criteria upon permit applicants. New York governor Kathy Hochul signed legislation on July 1st that preserved much of the essence of the previous law under different terminology. The legislation also included an exhaustive list of “sensitive locations,” including private businesses, where guns were prohibited. The requirement to demonstrate “good moral character” remained, and called for “no less than four character references who can attest to the applicant's good moral character.” In addition, an applicant is required to disclose their social media accounts from the previous three years to provide confirmation of their “moral character.” Some say that such government scrutiny and subjective evaluation of an individual’s morality is worrying.


The fight between the two sides will continue on, as usual.


Despite all this, many argue that the recent ruling remains a rebuke to the overextension of the state, and a win for the interests of individuals and their free exercise of rights.