In a landmark decision, the U.S. Supreme Court’s conservative supermajority on Thursday declared for the first time that there is a constitutional right to carry a handgun in public for self defense. By a vote of 6-to-3, the court struck down a century-old gun law in New York that limited licenses to carry a gun outside the home to people carrying them for sports like hunting or shooting, and those with a special need, like messengers carrying cash.
The court’s decision is the most sweeping to date, and will shake up gun regulation across the country, making it far more difficult to defend rules that limit guns in public places.
Writing for the court majority, Justice Clarence Thomas said that “the constitutional right to bear arms in public for self defense is not a second class right subject to an entirely different body of rules,” and just as the First Amendment doesn’t allow the banning of unpopular speech, the Second Amendment is not limited to people who can demonstrate a special need to carry a gun in public.
In New York, site of a mass shooting last month, Gov. Kathy Hochul seethed with anger moments after the opinion was announced.
“This decision isn’t just reckless, it’s reprehensible,” she said. “Our states and our governors have a moral responsibility to do what we can because of what is going on The insanity of the gun culture that has now possessed everyone all the way up to even to the Supreme Court.”
The court’s majority opinion is loaded with hints that it will not tolerate many of the gun regulations that until now have been upheld as necessary for public safety. From here on out, the courts are to look only at the time the bill of rights was enacted, as a guide for whether a regulation is permissible.
As Michael Waldman of NYU’s Brennan Center puts it, “basically what this means is that the NRA and other gun-rights adherents will have a do-over and can challenge and will challenge dozens and dozens of gun laws well outside New York, well outside the issue of handguns, saying that all the courts that upheld them in the past — they just were doing it wrong. And now they have to find their inner Clarence Thomas to understand what’s allowed.”
The decision “calls into question a wide variety of gun laws, including key provisions of the Senate gun bill,” said UCLA law professor Adam Winkler, who has written extensively about gun regulations. “We didn’t have red flag laws in the 17- and 1800s,” he said, nor were there limits on high-capacity magazines because they didn’t exist then, nor were there laws specifically dealing with domestic violence or restrictions on guns for those offenders. All of that is in the Senate bill, which could be approved as early as Friday.
The limits of the opinion
The only ray of hope for future gun regulations to win approval from the Supreme Court was a concurring opinion, written by Justice Brett Kavanaugh, and joined by Chief Justice John Roberts, in which they sought to underscore what they called “the limits” of the court’s opinion.
The decision, they noted, does not prohibit states from imposing licensing requirements for carrying a handgun. And Kavanaugh pointed out that 43 states have what are called “shall issue” licensing regimes under which in some places license applicants may undergo fingerprinting, a background check, a mental health records check, and training in fire-arms handling, among other things. Of course many “shall issue” states do not have most of those requirements.
Not all scholars agreed that the results of Thursday’s ruling would be dire. University of Tennessee law professor Glenn Reynolds said that in his view, the court’s decision won’t change much. Referring to a statement by New York City’s mayor, Reynolds said: “I heard Eric Adams say that now it’s going to be the wild west in New York, and I’m, like yeah, you’re going to have what? Running gun battles in the streets and on the subway. Oh wait, you already have that.”
In striking down the New York law, the court also struck down similar laws in other states, including New Jersey, California, Maryland, Massachusetts, Hawaii, and the District of Columbia. Those jurisdictions, Justice Kavanaugh noted, may continue to restrict licenses but only if the licensing regimes are based on objective criteria like those in the “shall issue” states.
One specifically unresolved issue in Thursday’s opinion is in what kinds of places may handguns be banned entirely. Think, for example, of rules banning guns at sports stadiums, on subways, areas close to schools, big events like Times Square on New Year’s Eve, rock concerts, and places where liquor is served.
In his opinion for the court, Justice Thomas acknowledged that the historical record yields relatively few examples of sensitive places where guns were banned, other than legislative assemblies, polling places and courthouses. He said courts today should use analogies to those places to determine if modern day bans are permissible.
“What is so striking about this opinion is the hyper-originalist approach,” said Joseph Blocker, co-director of the Center for Firearms Law at Duke University. “How do you do this kind of analogical reasoning? What makes a modern gun law relevantly similar to the founding era gun law, considering just how radically different the worlds are that we live in. How would you even evaluate the constitutionality of the current restriction” banning guns on airplane?
In dissent, Justice Stephen Breyer, writing for the court’s liberals, said: “In applying that approach to New York’s law, the Court fails to correctly identify and analyze the relevant historical facts. Only by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is not “consistent with the Nation’s historical tradition of firearm regulation.”
President Biden said he was “deeply disappointed” in the ruling which he said “contradicts both common sense and the Constitution.” Biden said he would continue to look for executive actions to take on gun violence, and urged states to continue to pass and enforce laws to protect against gun violence.
“This is another landmark win for constitutional freedom and the NRA,” said Wayne LaPierre, executive vice president of the NRA. “The decision comes at an important time – as the Senate considers legislation that undermines Second Amendment freedom.”