By: Daniel Wolf

Edited By: Rayyana Hassan and Luke Vredenburg

On November 3, 2021, the Supreme Court heard oral arguments in the case of New York State Rifle & Pistol Association (NYSRPA) v. Buren. The case is about New York State’s handgun licensing law, which has been in place since 1913. This law requires citizens to demonstrate “proper cause” in order to receive a concealed-carry license to carry their guns in public, although new York does not define “proper cause” in its law.[1] The specific question the Supreme Court will be analyzing is whether New York’s law restricting the conditions under which one may attain a concealed-carry permit violates the Second Amendment. An analysis of relevant legal issues and the history of gun laws in America illustrates that New York’s law is constitutional. Still, the Court’s conservative majority–which thus far has demonstrated a desire to revisit long-held understandings of controversial issues (see Whole Women’s Health v. Jackson)--may agree with the NYSRPA. Such an outcome could potentially unravel the precarious agreement between lower courts that have allowed many local gun restrictions to remain in place.

It is helpful to understand relevant precedent before considering the constitutionality of New York’s law. The Second Amendment to the 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.”[2] In the 2008 case of D.C. v. Heller, the Supreme Court held that the Second Amendment protects an individual’s right to keep and bear arms for “traditionally lawful purposes,” namely self-defense within one’s home, for the first time.[3] In the 2010 case of McDonald v. Chicago, the Court selectively incorporated the Second Amendment to the states. Selective incorporation is a constitutional doctrine that allows courts to extend constitutional rights to the states rather than applying constitutional rights only under federal jurisdiction.[4] The Court has not heard a major Second Amendment case since Chicago, but various lower courts have reached a tentative consensus on how to interpret the Second Amendment in the meantime.

At least ten of the thirteen federal appeals courts consistently apply a “two-step analytic framework” when hearing Second Amendment cases.[5] Under this framework, courts subject “severe burdens on Second Amendment rights” to strict scrutiny and “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core’” to the less restrictive intermediate scrutiny test.[6] If a court applies strict scrutiny when reviewing a law that potentially violates a fundamental constitutional right, the law must “further a compelling government interest” and be “narrowly tailored” to achieve that interest.[7] If a court applies intermediate scrutiny when reviewing a similar law, the law must “further an important government interest” and “must do so by means that are substantially related to that interest.”[8]

Following these criteria, both the district court that initially heard Bruen and the U.S. Court of Appeals for the Second Circuit applied intermediate scrutiny and determined that New York’s law is indeed constitutional. In Bruen, the Supreme Court should apply intermediate scrutiny as well because New York’s law falls under the “less onerous” category outlined in the two-step analytic framework.

To explain why these lower courts applied intermediate scrutiny and why the Supreme Court should as well, we must examine the history of gun laws in the United States. There have been countless legal restrictions on carrying firearms from the common law predating 1788 to the current day. For example, shortly before America’s creation, North Carolina implemented a law that forbade “going armed at night or day ‘in fairs, markets…nor in the presence of the King’s justices..nor in no part elsewhere.”[10] Moreover, in the 19th century, Georgia and Tennessee outright banned the sale of weapons that could be concealed, and New York’s law itself is more than a century old.[11] The extensive history behind restrictions on carrying weapons is what led the Second Circuit to conclude that “state regulation of the use of firearms in public was ‘enshrined with[in] the scope’ of the Second Amendment when it was adopted.”[12] Thus, New York’s law falls under intermediate scrutiny because it regulates actions that states have regulated for centuries throughout America; it does not impose a “severe burden” on Second Amendment rights. Additionally, there is no disagreement that if the Court were to apply intermediate scrutiny New York’s law is “substantially related” to the “important government interest” of preserving public safety.[13]

America’s federalist system of government provides more ammunition to the argument that New York’s law is constitutional. The Tenth Amendment to the Constitution states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved for the states respectively, or to the people.”[14] America has a federalist system of government in which the powers to create and enforce laws are divided between a national government and state governments because the states are incredibly different from one another. What laws work in a rural state like Montana are likely to be significantly different from the laws that work in an urban center like New York.[15] Therefore, the Tenth Amendment allows the states to write their own laws accordingly. Since the Constitution does not clarify the rules regarding concealed-carry, the states should be allowed to regulate concealed-carry laws themselves.

The abundant evidence pertaining to the legality of restrictions on concealed-carry licenses is what makes the Court’s decision to hear this case so concerning, especially after two lower courts summarily dismissed NYSRPA’s claims. Among the few judges who disagreed with the “two-step analytic framework” are current Justices Brett Kavanaugh and Amy Coney Barrett. In a dissenting opinion written in 2011, when he was still a lower court judge, Kavanaugh asserted that courts should “assess gun bans and regulations based on text, history, and tradition” and disregarded the “balancing test” between strict and intermediate scrutiny.[16] In a 2019 dissent, Justice Barrett indicated her desire to subject all gun restrictions to strict scrutiny, proclaiming that only “dangerous people” should be restricted from owning guns.[17] Justice Barrett did not consider the practical impossibility of determining who is dangerous and who is not.

If the Court were to apply strict scrutiny and rule in favor of the NYSRPA, which is entirely possible due to its conservative majority and past opinions written by Barret and Kavanaugh, the current system of gun regulations in America could crumble. Such a decision could render the “two-step analytic framework” moot because the Court could hold that all cases involving the Second Amendment should be subject to strict scrutiny. If the analytic framework were nullified, countless gun restrictions that states have implemented under the framework would suddenly be subject to further review, possibly resulting in a cascade of legal challenges that would threaten gun laws everywhere. Thus, the Court should apply intermediate scrutiny in reviewing the law and rule against the NYSRPA to protect the already tenuous gun restrictions throughout America.

Notes:

Vkimber, “New York State Rifle & Pistol Association Inc. v. Bruen,” Legal Information Institute, Legal Information Institute, October 28, 2021, https://www.law.cornell.edu/supct/cert/20-843.
“Second Amendment,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/constitution/second_amendment.
"Second Amendment,” Legal Information Institute.
“Incorporation Doctrine,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/incorporation_doctrine.
Ian Millhiser, “The Supreme Court Will Hear a Major Second Amendment Case That Could Gut US Gun Laws,” Vox, Vox, April 26, 2021, https://www.vox.com/2021/4/26/22364154/supreme-court-guns-second-amendment-new-york-state-rifle-corlett-shootings-kavanaugh-barrett.
Millhiser, “The Supreme Court Will Hear.”
“Strict Scrutiny,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/strict_scrutiny.
“Intermediate Scrutiny,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/intermediate_scrutiny.
Vikember, “New York State Rifle & Pistol Association.”
Millhiser, “The Supreme Court Will Hear.”
Millhiser, “The Supreme Court Will Hear.”
Vikember, “New York State Rifle & Pistol Association.”
Vikember, “New York State Rifle & Pistol Association.”
“Tenth Amendment,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/constitution/tenth_amendment.
Jeremy Feigenbaum, “In Our Federalist System, States Can Regulate Public Carry,” SCOTUSblog, November 2, 2021, https://www.scotusblog.com/2021/11/in-our-federalist-system-states-can-regulate-public-carry/.
Millhiser, “The Supreme Court Will Hear.”
Millhiser, “The Supreme Court Will Hear.”

BIBLIOGRAPHY:

Feigenbaum, Jeremy. 2021. “In Our Federalist System, States Can Regulate Public Carry.” SCOTUSblog. November 2. https://www.scotusblog.com/2021/11/in-our-federalist-system-states-can-regulate-public-carry/.

“Incorporation Doctrine.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/incorporation_doctrine.

“Intermediate Scrutiny.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/intermediate_scrutiny.

Millhiser, Ian. 2021. “The Supreme Court Will Hear a Major Second Amendment Case That Could Gut US Gun Laws.” Vox. Vox. April 26. https://www.vox.com/2021/4/26/22364154/supreme-court-guns-second-amendment-new-york-state-rifle-corlett-shootings-kavanaugh-barrett.

“Second Amendment.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/constitution/second_amendment.

“Strict Scrutiny.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/strict_scrutiny.

“Tenth Amendment.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/constitution/tenth_amendment.

“U.S. Constitution - Second Amendment - Congress.” 2022. Accessed February 10. https://constitution.congress.gov/constitution/amendment-2/.

Vkimber. 2021. “New York State Rifle & Pistol Association Inc. v. Bruen.” Legal Information Institute. Legal Information Institute. October 28. https://www.law.cornell.edu/supct/cert/20-843.