For nearly all its history, the Supreme Court kept its distance from gun policy. Now it’s about to decide a case that could radically reduce the government’s power to regulate guns.
The Second Amendment states explicitly that it exists to protect “a well regulated Militia,” and until fairly recently, the Court took these four words very seriously. As a unanimous Court explained in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.” Because the kinds of militias that concerned the framers in the 1790s are now an anachronism, Miller’s approach gave states broad authority to regulate guns.
That all changed with the Court’s 5-4 decision in District of Columbia v. Heller (2008), which held for the first time in American history that the Second Amendment protects an individual right to own a gun for personal “self-defense.”
And yet Heller was only a partial victory for the gun lobby. The Court’s opinion is thick with language explaining that “the right secured by the Second Amendment is not unlimited,” and it even enumerates several very important limits on gun rights. As conservative Justice Samuel Alito complained in a 2020 opinion, this has meant that lower courts “have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws,” and that “most have failed.”
In other words, the constitutional right to own a gun is both stronger now than it was at any point in the first 217 years of the Second Amendment’s history, and weak enough that state and local governments can prevent most Americans from carrying a gun on city streets and in other heavily populated areas.
But that’s likely to change soon. Next Wednesday, November 3, the Supreme Court will hear oral arguments in New York State Rifle & Pistol Association, Inc. (NYSRPA) v. Bruen, a challenge to a 108-year-old New York state law requiring anyone who wishes to carry a handgun in public to demonstrate “proper cause” before they can obtain a license allowing them to do so.
It’s relatively easy in New York to get a license to carry a gun for limited purposes — the plaintiffs in NYSRPA include two men who already have a license permitting them to carry a gun for hunting, for target practice, and while in areas not “frequented by the general public.” One is also licensed to carry a gun while commuting to and from work.
But neither plaintiff obtained an unlimited carry license, and New York courts require that someone who seeks such a license must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” The petitioners sued, along with a New York gun-rights group, claiming that they are entitled to an unrestricted license.
The implications of this case go far beyond these two plaintiffs and New York state. The current Court, with its 6-3 conservative supermajority, may very well dismantle the limits on the Second Amendment articulated in Heller. It could completely rewrite the federal judiciary’s approach to gun-rights litigation. And the Court could potentially force crowded cities to adopt the same permissive gun rules that apply in the most conservative, rural parts of the nation.
NYSRPA could be the Court’s most significant Second Amendment decision since Heller, and it could prove just as revolutionary as that 2008 decision.
Under existing law, the government still has fairly broad authority to restrict gun use
Heller broke with more than two centuries of judicial history when it held that the Second Amendment protects an individual right to self-defense, not just a right to state-run militias. But while this holding was a paradigm-shifting victory for gun-rights advocates, it came with many caveats.
Justice Antonin Scalia’s majority opinion in Heller includes a long list of limits on the Second Amendment. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Scalia wrote, nor “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’” The government may also ban “dangerous and unusual weapons,” so the regulation of machine guns and similarly destructive weapons is still valid.
This language, retired Justice John Paul Stevens revealed shortly before his death in 2019, was inserted at the insistence of Justice Anthony Kennedy. Because Heller was a 5-4 decision, Scalia needed support from all four of his conservative colleagues, or else he’d lose his majority. And that meant Kennedy could wield a great deal of influence over the final opinion.
But Kennedy retired in 2018 and was replaced by the much more conservative Justice Brett Kavanaugh. Then liberal Justice Ruth Bader Ginsburg, who died in 2020, was replaced by conservative Justice Amy Coney Barrett. As lower court judges, both Kavanaugh and Barrett wrote opinions calling for an expansive approach to the Second Amendment.
It’s far from clear, in other words, whether there are still five justices who will respect the mitigating language in Heller. Many of the “longstanding prohibitions” on gun use that are now perfectly legal could soon be declared illegal.
Kavanaugh, moreover, is one of the judiciary’s most outspoken dissenters from the consensus approach to the Second Amendment that federal appeals courts have come up with since Heller.
At least 10 federal appeals courts — every court to hear a Second Amendment case since Heller, in fact — have applied what federal appellate Judge Stephen Higginson describes as a “two-step analytic framework.” Under this framework, “severe burdens on core Second Amendment rights” are subject to “strict scrutiny,” the most skeptical level of review in most constitutional cases. Meanwhile, “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are subject to a more permissive test known as “intermediate scrutiny.”
Applying this framework, federal appeals courts determined that restricting “the right of a law-abiding, responsible adult to possess and use a handgun to defend his or her home” burdens the “core” of the Second Amendment. Similarly, the US Court of Appeals for the Seventh Circuit struck down an Illinois law prohibiting nearly anyone from carrying a loaded gun outside their home, reasoning that because no other state had a similar law on the books — and “few states did during the nineteenth century” — the law infringes upon core Second Amendment rights.
Many lesser restrictions on gun rights, however, were upheld by lower courts. The Second Circuit Court of Appeals applied the two-step consensus approach when it upheld the New York state gun licensure requirements now before the Supreme Court in NYSRPA. Other courts upheld a federal law preventing people with misdemeanor domestic violence convictions from possessing a gun, and some federal appeals courts have affirmed laws banning semiautomatic assault weapons and large-capacity magazines.
Perhaps that explains why a right flank within the lower courts harshly criticized this consensus framework. One of those critics was Kavanaugh, still a lower court judge at the time, who argued in a 2011 dissenting opinion that this framework should be abandoned. “Courts are to assess gun bans and regulations based on text, history, and tradition,” Kavanaugh claimed, “not by a balancing test such as strict or intermediate scrutiny.”
Notably, both the plaintiffs challenging New York’s licensure law and the state attorneys tasked with defending it spend the lion’s share of their briefs applying this “text, history, and tradition” standard to New York’s law. So it seems that, at the very least, the lawyers litigating this case seem to think that it is very likely the Supreme Court will adopt Kavanaugh’s approach.
So how, exactly, does the “text, history, and tradition” test work?
If the merits briefs filed in NYSRPA are any sign of how lawyers should approach this “text, history, and tradition” inquiry, it largely involves citing a lot of laws and court decisions from hundreds of years ago, then arguing about whether those old laws resemble the specific law now before the Court.
The plaintiffs, represented by Republican lawyer Paul Clement, argue that “founding-era cases, commentaries, and laws on both sides of the Atlantic … confirm that the founding generation understood the Second Amendment and its English predecessor to guarantee a right to carry common arms for self-defense.”
New York’s lawyers, meanwhile, cite many of the same historical sources but make a more nuanced argument that “any right to bear arms outside the home permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a non-speculative need for armed self-defense in those areas.” Thus, they argue, states may apply stricter gun-control rules in cities and other population centers than they can in more sparsely populated areas.
Both briefs spend a simply ridiculous amount of time discussing a 1328 English law known as the “Statute of Northampton,” which provided that individuals may not “go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure.” The state argues that this nearly 700-year-old law did exactly what it says it did, while the plaintiffs point to a pair of 1686 cases which, they argue, narrowed the 1328 law to apply only to people who carry arms in order “to terrify the King’s subjects.”
Similarly, the plaintiffs quote a bevy of old decisions by state supreme courts, mostly in the South, suggesting that early Americans had broad gun rights. We learn about an 1833 decision by the Tennessee Supreme Court, which cited the state constitution, saying that “the freemen of this state have a right to keep and to bear arms for their common defence”; an 1846 case in Georgia, which found that “a prohibition against bearing arms openly, is in conflict with the Constitution, and void”; and an 1840 Alabama Supreme Court decision holding that “the Legislature cannot inhibit the citizen from bearing arms openly, because [the constitution] authorizes him to bear them for the purposes of defending himself and the State.”
Meanwhile, New York musters up its own array of centuries-old laws and court opinions to justify its understanding of the Second Amendment. In its brief, we learn that the Old West settlements of Dodge City, Kansas, and Tombstone, Arizona, required anyone entering them to leave their guns at the city limits — visitors to Tombstone even encountered a sign reading “THE CARRYING OF FIREARMS STRICTLY PROHIBITED.”
New York also cites early 19th-century manuals instructing law enforcement to “arrest all such persons as in your sight shall ride or go armed.” They quote a colonial New Jersey provision making it unlawful to “ride or go armed with sword, pistol, or dagger,” though the law made an exception for “strangers, travelling upon their lawful occasion thro’ this Province, behaving themselves peaceably.” A Virginia law, enacted three years before the Second Amendment was drafted, imprisoned people who go “armed by night or by day, in fairs or markets.” A Massachusetts law, enacted a few years after the amendment was ratified, incarcerated individuals who enter populated areas “armed offensively, to the fear or terror of the good citizens of this Commonwealth.”
The state’s brief, in other words, paints a more nuanced picture than that of the plaintiffs — arguing that different parts of the US had different gun laws and that city dwellers often had to put away their guns, except when traveling through sparsely populated areas where they had to rely on their own armaments for protection.
As it turns out, much as the devil can cite Scripture for his purpose, so too can lawyers on both sides of the Second Amendment quote “text, history, and tradition” to justify the outcome they prefer.
This confusion over history will come as no surprise to anyone familiar with the Heller decision and Stevens’s dissent in that case. Like the merits briefs in NYSRPA, Scalia’s opinion is replete with citations to early American laws and old English legal treatises. But so is Stevens’s dissent, which quotes at length from both founding-era state constitutions and early drafts and proposals for what became the Second Amendment.
The five conservative justices looked at text, history, and tradition in Heller, concluding that the Second Amendment should be interpreted in the way conservatives prefer. Meanwhile, the four liberal justices — who looked at the exact same text and historical sources —determined that the Second Amendment should be interpreted in the way liberals prefer.
The pre-Heller approach to the Second Amendment, which largely left gun policy up to elected lawmakers, avoided this problem of motivated reasoning. Sure, liberal lawmakers (especially those in cities) were especially likely to pass stricter gun laws, while more conservative lawmakers (especially those in rural areas) were especially likely to support expansive gun rights. But these lawmakers stood for election. If the people didn’t like their state’s gun laws, they could elect a different legislature.
That ship sailed in 2008 with the Court’s decision to make gun policy the domain of an unelected judiciary. And, if the briefs on both sides of NYSRPA are any indication, all parties appear convinced that the current slate of justices will care a whole lot more about what a 14th-century English law had to say about gun rights than they will what the people of New York have to say in 2021.