Key Takeaways
- Bruen (2022) held that the Second Amendment protects a right to carry a handgun in public for self-defense and struck down New York's requirement that permit applicants show "proper cause."
- States may still use objective licensing criteria such as background checks and training, but may not let officials decide that only some applicants deserve a carry permit.
- Courts no longer weigh public safety benefits against burdens; a gun law must be consistent with the nation's historical tradition of firearm regulation, a test the Court refined in Rahimi (2024).
Does the Constitution protect a right to carry a handgun on the street? And once it does, how should courts decide which gun laws survive?
Joel Cohen talks with Jacob D. Charles, Associate Professor of Law at Pepperdine University Caruso School of Law and a scholar of the Second Amendment, about New York State Rifle & Pistol Association v. Bruen, one of the most important gun cases the Supreme Court has decided, and why its new test may matter even more than its holding.
Four Kinds of Permit Laws
Two individuals and a gun rights organization sued the superintendent of the New York State Police over a law requiring anyone seeking a concealed-carry handgun permit to show "proper cause," which courts read as a self-defense need distinguishable from that of the general community. Professor Charles describes four licensing models: no-issue laws banning concealed carry, common historically but gone by the time of Bruen; may-issue laws like New York's, giving officials discretion; shall-issue laws, requiring a permit for anyone who meets objective criteria such as a background check or training; and permitless carry, now the most common approach. As late as the 1980s, many states banned concealed carry entirely; the shift came through legislatures, not courts.
What the Court Decided
Bruen held that the right recognized in District of Columbia v. Heller is not homebound: people have a right to carry a gun outside the home for self-defense. It also struck down New York's law. A state can still require a background check, but it cannot have an official decide that some, but not all, people are entitled to a permit. Only a few states had may-issue laws, but they included New York and California and covered roughly a quarter of the population.
From Balancing to History
The most lasting part of Bruen, he explains, is its test. After Heller, the circuit courts borrowed from First Amendment doctrine a two-part framework: first ask whether conduct is covered at all, then weigh the government's interests, such as public safety, against the law's fit. He notes reporting that the Court may not have had the votes to revisit that approach while Justice Kennedy was on the bench. Bruen rejected means-end scrutiny. Courts now ask whether the text covers the conduct, and if so, the government must show the law is consistent with the nation's historical tradition of firearm regulation. A novel law can fail even if it saves many lives. He describes lower courts struggling with the test, judges noting they are not historians, and critics questioning the assumption that the founders left laws unenacted because they thought them unconstitutional. Outside the courts, some states relaxed permit rules further while others, such as Delaware, Illinois, and Minnesota, passed new gun laws.
What to Know Now
Bruen remains the governing framework. In United States v. Rahimi (2024), the Court upheld the federal ban on gun possession by people under domestic-violence restraining orders and clarified that the government needs a law consistent with the principles of the historical tradition, not a "historical twin." In 2026, the Court struck down Hawaii's default ban on carrying on private property open to the public in Wolford v. Lopez and held a federal drug-user prosecution unconstitutional as applied in United States v. Hemani. It has also agreed to decide whether bans on AR-15-style rifles are constitutional, with argument set for December 2026. Supporters see the history-based approach as restoring the right's original meaning; critics argue it leaves judges without workable standards.
