SCOTUS| New York’s “proper cause” requisite to possess concealed firearms, declared unconstitutional for preventing law-abiding citizens from exercising their Second Amendment right

Supreme Court of The United States

Supreme Court of The United States: In a crucial decision, the SCOTUS while deliberating upon New York’s “proper cause” requirement to possess a concealed firearm; declared with a thumping ratio of 6: 3 that, the “proper-cause” requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. This decision by the Court assumes a lot of significance given the current discourse in the country surrounding several mass shootings and the Second Amendment.

Facts and Legal Trajectory of the Case:

New York residents and law-abiding citizens, Brandon Koch and Robert Nash, both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement.

Petitioners sued state officials who oversee the processing of licensing applications, for declaratory and injunctive relief, alleging that the respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed that decision. It was observed that New York’s proper-cause standard was “substantially related to the achievement of an important governmental interest”. Aggrieved with the decision, the petitioners preferred to approach the SCOTUS.

The Laws in question

  • The New York Penal Law makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed pistol or revolver if he can prove that proper cause exists for doing so. An applicant satisfies the “proper cause” requirement only if they can “demonstrate a special need for self-protection distinguishable from that of the general community” [N. Y. Penal Law Ann. §400.00(2)(f)]

  • The Second Amendment of the US 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.1

  • The Fourteenth Amendment of the US Constitution deals with multiple aspects of citizenship and the rights of citizens.2

Observations by the Majority: The majority opinion was delivered by Clarence Thomas, J., and he was joined and concurred by John Roberts, CJ., and Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, JJ. The majority made the following observations regarding constitutionality of the “proper- cause” requirement-

  • Relying on District of Columbia v. Heller 2008 SCC OnLine US SC 63 and McDonald v. City of Chicago, 2010 SCC OnLine US SC 87, it was noted that the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: whether modern and historical regulations impose a comparable burden on the right of armed self-defense; and whether that regulatory burden is comparably justified. Since “individual self-defense is the central component’ of the Second Amendment right, therefore, these two metrics are central considerations when engaging in an analogical inquiry. “The respondents’ attempt to characterize New York’s proper-cause requirement as a ‘sensitive-place law’ lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a sensitive place simply because it is crowded and protected generally by the New York City Police Department”.

  • It was observed that petitioners Koch and Nash are two ordinary, law-abiding, adult citizens and are part of “the people” whom the Second Amendment seeks to protect; and there is no dispute as to the fact that handguns are weapons in common use today for self-defense. “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry”.

  • The majority also pointed out that burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Though the respondents have cited documents dating from 1200s to the early 1900s, however, “when it comes to interpreting the Constitution, not all history is created equal”. The Second Amendment and the Fourteenth Amendment were adopted in 1791 and 1868 respectively. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose”.

The Dissent: Justice Stephen Breyer along with Sonia Sotomayor and Elena Kagan, JJ., filed a dissenting opinion. The dissenting judges cited relevant records and pointed out that in 2020 alone, around 45,222 Americans were killed by firearms and since the start of 2022, there have been 277 reported mass shootings- “Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents”. Other salient observations made by the dissenting Judges are as follows-

  • Noting that ever since the rise in cases of mass shooting, there are many States that are trying to address the dangers of gun violence by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. However, the majority opinion in the instant matter severely burdens States’ efforts to do so. “The Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in practice”.

  • The Judges also stated that when courts interpret the Second Amendment, it is constitutionally proper, and often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. They also noted that mass shootings are just one dimension of the problem; easy access to firearms can also make many other aspects of American life more dangerous – like cases of road rage and domestic violence to name a few. Furthermore, “The presence of a gun in the hands of a civilian poses a risk to both officers and civilians”. It was pointed out that most officers who are killed in the line of duty are killed by firearms; and that the officers in States with high rates of gun ownership are three times as likely to be killed in the line of duty as officers in States with low rates of gun ownership.

  • “Question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts”. The Judges opined that the Second Amendment allows States to take account of the serious problems posed by gun violence. Therefore, it is concerning that the majority’s interpretation ignores the significant dangers and leaves the States without the ability to address them. “Question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes”.

  • Regarding the New York “proper-cause” requisite, the dissenting Judges observed that counsels for the respondents present substantial data justifying the State’s decision to retain a “may issue” licensing regime. The data shows that stricter gun regulations are associated with lower rates of firearm-related death and injury. The Judges also questioned as to how the majority struck the impugned law without first considering how it actually works on the ground and what purposes it serves. It was stated that the majority misread the Heller case and in an unusual manner, relied only on its own history-only approach. “The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. The dissenting opinion stated that the Court is bound by Heller case insofar as it interpreted the Second Amendment to protect an individual right to possess a firearm for self-defense. “But Heller recognized that this right was not without limits and could appropriately be subject to government regulation.

  • In an impassioned conclusion, the Judges opined that this Court is not comprised of historians; however, the detailed study of history by the majority Judges seems to establish a robust tradition of regulations restricting the public carriage of concealed firearms. “It is appropriate in such circumstances to look beyond history and engage in what the Court calls means-to-end scrutiny. Courts must be permitted to consider the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives”.

Conclusion and Decision: Considering the historical facets of firearm restrictions and other relevant aspects, the Court with a ratio of 6: 3 concluded that the constitutional right to bear arms in public for self-defense is not a second-class right. “The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different”.

It was thus held that New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs, from exercising their right to keep and bear arms in public.

[New York State Rifle and Pistol Association v. Bruen, 2022 SCC OnLine US SC 8, decided on 23-06-2022]

*Sucheta Sarkar, Editorial Assistant has reported this brief.

1. Second Amendement, Constitution Annotated

2. The Fourteenth Amendment, Legal Information Institute [Cornell Law School]

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