NYSRPA v. Bruen

A Conversation with Second Amendment Scholar, Prof. Jacob Charles

Joel Cohen (Host): Today we'll be discussing New York's State Rifle and Pistol Association versus Bruen, one of the most important gun rights, gun law cases that the Supreme Court has ever decided. Welcome to Talks on Law, I'm Joel Cohen. We're joined remotely by a constitutional law scholar and a Second Amendment expert, Professor Jake Charles of Pepperdine Law School. Let's talk about Bruen.

Professor Jake Charles: All right, let's do it.

Joel Cohen (Host): So, I guess first off, what happened in this case? Who is Bruen and what were they fighting for? 

NYSRPA v. Bruen - Fact of the Case

Prof. Charles: Yeah, so Bruen was the, I think he's the superintendent of the State Police of New York. And the lawsuit was about two individuals and a gun rights organization that said New York's law that required a person who wanted a concealed carry handgun permit to show “proper cause,” which the courts had interpreted to mean a cause that was a need for self-defense that was distinguishable from the general community, that that provision of New York law was unconstitutional. And instead they argued the Constitution demands that anyone who wants to get a permit to carry a concealed handgun is entitled to get one just by meeting certain statutory criteria. They shouldn't have to, in addition, satisfy a licensing officer that they have some special need for self-defense. 

Joel Cohen (Host): One thing I'd bring up here is that the New York law is what gun rights experts like yourself may sometimes refer to as a “may issue” state rather than a “shall issue” state. In other words, New York has some discretion as to whether or not you really need that gun.

May Issue v. Shall Issue Laws

Prof. Charles: That's right, yeah. There's a distinction. In licensing regimes, there's four kinds of licensing regimes. There is the licensing regime called “no issue,” in which case concealed carry is banned altogether. No states by the time of Bruen had that kind of law, although it was prevalent throughout American history. Then there are, as you mentioned, the “may issue” regimes. Those are licensing schemes in which a licensing official has discretion to determine whether or not the criteria is satisfied, whether someone has shown special need or special cause or in New York's case “proper cause.” Then there are “shall issue” licensing laws, in which case a licensing official has no discretion. They must issue a license to somebody who meets objective criteria: usually things like a background check or a training requirement. And then there are now “Permitless” carry laws in which no one is required to get a permit at all for carrying a handgun in public, which, today, that's the most dominant form of permitting. 

Joel Cohen (Host): Which is wild. I mean, I was looking at some research on the topic and even 30 years ago, it was quite a minority of states that were in this category and there were actually a number of states that had no issue.

Prof. Charles: That's right, yeah. As late as the 1980s, I think it was 16 states that banned concealed carry altogether, so didn't allow anyone to get a permit because they didn't allow anyone to concealed carry. And so there's been a rapid change that happened outside the constitutional context. There were no cases that said states had to do this, but states were gradually relaxing their requirements for permitting, first, in many cases, to a “may issue” regime and then secondarily to a “shall issue” regime and then on to permitless carry.

Joel Cohen (Host): I don't want our viewers to think we're hiding the ball. What happened in Bruen? What did the Court decide?

Bruen – The Decision 

Prof. Charles: So the court decided a couple of things. One of which is you have a right to carry a gun outside the home. The Heller Decision in 2008 had been about the right to have a handgun in your home for self-defense. And although no courts had held that that was only a right to have a gun in the home, there was still a question about what the right looked like outside the home. So Bruen said, first of all, you do have a right to carry a gun outside your home for self-defense purposes. It's not just a homebound Second Amendment right. Secondly, the court said that New York's law is unconstitutional. So the state cannot have a regime in which it decides selectively that only some people will get a ride to carry a handgun permit outside the home based on discretionary criteria. It can still use objective criteria. It can say, you have to pass a background check in order to get a permit, but it can't have a licensing official decide that some, but not all people are entitled to get a handgun carry permit. So those were two of the main holdings, and some of the most important holdings. But there's even another thing that Bruen said that is far more important or at least far more long-lasting. 

Joel Cohen (Host): Wait a second. So Bruen, it established the right to carry not only the right to keep, it really called into question these “may issue” states, and that's not even the most important thing? 

The New 2A Test Established by Bruen

Prof. Charles: That's right, yeah. Even though that was significant, because although there were only a few states that had these laws, those were pretty populous states like New York and California that governed approximately 25 percent of the U.S population. But that wasn't the most significant thing. The most significant thing, or at least one that will have the most long lasting legacy, is that the court said that lower courts need to use a new test for Second Amendment cases. And in order to understand the revolutionary impact of that, it's important to talk a little bit about what test courts had been using.

So again, in 2008, the Supreme Court said the Second Amendment is an individual right and you have to entertain challenges to private possession of firearms. And so courts developed a test in the meantime that said, okay, we're going to treat the Second Amendment just like we treat the First Amendment. In the First Amendment context, what we do if we’re faced with, say, a free speech claim, is we ask a question about whether or not this kind of speech is protected by the Constitution at all. Is it even the kind of speech that gets constitutional protection? So if you bribe somebody through speech, you're not getting constitutional protection at all. The government doesn't need to show any kind of interest in regulating that kind of conduct. It's just outside the scope of the Constitution. Same thing with gun rights. So some courts said, all right, there are just some things that although they relate to guns are just not covered at all. So using a gun to commit a crime, not covered at all, the government doesn't need to go and show any justification for that type of law. But if it's covered by the Constitution, so possession of a gun, for instance, by somebody with a felony conviction, well, that might be covered by the text of the Second Amendment. And then the Court said we'll do what we do in free speech cases: we'll apply “means-end” scrutiny. And what that fancy phrase means is that we'll ask a question about what are the ends the government is trying to serve. So what are the government interests or purposes? Things like protecting the public peace and safety, things like decreasing gun violence. And then we'll check the means they use to reach that end. The law itself – is it serving those ends and is it serving those ends in a way that is rationally related or a substantial fit with the interest that it's serving? Sometimes is it narrowly tailored to that end or are there ways the government could still serve that interest with a less intrusive type of law? And so that was the test, called the two-part framework, that courts were using prior to Bruen. 

Joel Cohen (Host): And that test has been developed by, not by the Supreme Court, but by the various circuit courts after Heller.

Prof. Charles: Yeah, that's absolutely right. The Supreme Court had not weighed in from 2010 all the way until 2013, no substantive decisions by the Supreme Court. And so the lower courts were left to figure out this method on their own. And so they developed this two-part framework, and they drew it from First Amendment doctrine, and they said, this seems to us, based on our reading of Heller and our understanding of other constitutional rights, the best way to interpret what the Constitution demands for the Second Amendment and how we should assess Second Amendment claims.

Joel Cohen (Host): I kind of like this approach to the Supreme Court where it's, you know, maybe we don't have the perfect test. Let's see what you guys can come up with. 

Prof. Charles: Yeah, that's right. Or we don't have the votes for another test yet. There was some reporting that the Supreme Court hadn't taken a Second Amendment case because there weren't enough votes when Justice Kennedy was on the court for maybe what they wanted to do and what they eventually did in Bruen. And what they did in Bruen is, they said, the test you've been applying, court of appeals, is the wrong test. You shouldn't be doing any kind of means in scrutiny. You shouldn't be applying strict or intermediate scrutiny. You shouldn't look to government interests at all. That kind of contemporary weighing of costs and benefits, of competing values, of balancing interest, that is forbidden in the Second Amendment context. And instead, you should only do two things. You should ask, does the text of the Second Amendment protect the conduct? And if it does, then the government has the burden of introducing sufficient evidence that the law today is consistent with this nation's historical tradition of firearms regulation. So what that means is that, for the most part, contemporary considerations about danger and public safety are out the window. And instead, what the government has to do to support a given law today is to find something that looks analogous enough in some undefined time period, but very near the founding, that looks like a gun law that might be similar to a gun law today. So it's all historically focused now after Bruen.

Joel Cohen (Host): I think that's an important point to make. It's not how smart the law is or how many lives are saved, it's, hey, does this line up with the understanding of the Second Amendment and the way that laws were drafted a couple hundred years ago?

Prof. Charles: Yeah, that's absolutely right. So it could be a law that's extremely narrowly tailored, that you could show that it's saving hundreds of thousands of lives each year. And still if it's an innovative law, if it's novel and has no basis in historical tradition, then it's unconstitutional under Bruens test.

Gun Law and Second Amendment Litigation after Bruen

Joel Cohen (Host): So is that the legacy? I mean, where are we after Bruen, Professor, what has Bruen done to American gun laws?

Prof. Charles: Yeah, so I think Bruen has maybe two kinds of legacies. It's got a legacy in the courts and a legacy outside the courts. The legacy inside the courts is that lower courts are very confused how to apply this new test. So lower courts are kind of all over the map about how to apply it. So some of them are striking down federal laws that were kind of non-controversially thought to be constitutional in the aftermath of Heller for the last 60, 70 years. Nobody struck those laws down. And now federal courts are saying, actually we think that's unconstitutional because there's no history of doing something similar. Many other courts are saying, we're not sure how to apply Bruen’s test, and we're not historian, we are not trained in how to look to the historical record and how to research what the justifications for those laws were at the time and how restrictive those laws would have been or would have been seen to be at the time. And many are also pointing out that when you require a historical tradition, what you're doing is saying that only those laws that they enacted did the founding generation think were constitutional. In other words, the assumption is that if they did not enact a law, they didn't enact it because they thought it would be unconstitutional to do so, as opposed to the many reasons we can think of, well, for why someone wouldn't have enacted a law, like maybe that it wasn't a problem that they thought the law needed to be addressing. So what we see is lower courts kind of all over the map. That's kind of the in-court legacy of Bruen confusion. The Supreme Court, I think, is going to have to take a new case and clarify this standard.

What we see outside the courts is that Bruen is being used by advocates and by state legislatures in kind of two opposite ways. In red states, what we're seeing is that state legislatures are using Bruen to relax their gun laws even further. So, you know, we talked about how Bruen said permits are okay as long as they're “Shall Issue” permits; lots of states are eliminating their permanent requirements even after Bruen said it's okay to have these and they're doing it because they say the Second Amendment demands it. Even though again, the court very clearly says the Second Amendment does not demand this. On the opposite side, we see blue states being energized by the Bruen decision and enacting more gun laws in its wake. So Delaware and Illinois both enacted an assault weapons ban even after Bruen was decided. Minnesota is enacting universal background checks and red flag laws even after Bruen was decided. So we see the legacy of Bruen outside the courts as spurring advocates on each side of the aisle that either are reacting against it and still enacting gun laws that are quite strict or trying to use it to leverage even looser gun laws, even more relaxed gun laws in red states. 

Joel Cohen (Host): So maybe one of the legacies of Bruen is that we'll be seeing more gun law cases at the Supreme Court. 

Prof. Charles: I think that's absolutely right. 

Joel Cohen (Host): Professor Jake Charles teaches at Pepperdine Law School. Jake, thank you for your time. 

Prof. Charles: Thank you.