Supreme Court Upholds Second Amendment Rights Outside of the Home

The Supreme Court opinion on the New York State Rifle and Pistol Association v. Bruen was released on June 22, 2022. It is a 6 to 3 opinion, which upholds the Second Amendment as applying outside the home and rebukes Circuit Courts for creating an unnecessarily complicated two step process in applying Second Amendment protection to statutes. The opinion is 135 pages long.

Justice Clarence Thomas wrote the majority opinion, which was joined by Justice Alito, Justices Kavanaugh and Roberts, and Justice Barrett in concurring opinions. Justice Alito and Barrett concur in full. Justices Kavanaugh and Roberts simply concur.

The opinion by Justice Thomas is relatively simple. The Constitution must be interpreted as what it meant to the people who ratified it in 1791. Looking at history can aid in the understanding, but what was meant at the time of ratification is key. In addition, the Second Amendment became applicable to state governments with the Fourteenth Amendment in 1868, so what was meant by the Fourteenth Amendment at the time of ratification is also important.

Justice Thomas cites Caetano v. Massachusetts as one way the Court has adopted the Second Amendment to modern realities.

Thomas clarifies all parties agree the Second Amendment applies outside the home. The respondents, who try to defend the New York "may issue" law, attempt to render the Second Amendment meaningless, by giving state authorities the power to decide who the Second Amendment applies to, on a case by case basis.

Quotes from the opinion show Thomas correctly points out Second Amendment rights apply to ordinary, law abiding adults. From Page 3 :

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects.

and

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.

On page 4, Thomas explains the requirement for states to show their law is Constitutional.

The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.

This is important, because it sets the standard for states which are attempting to regulate the right to keep and bear arms. They have the burden of showing a widespread historical precedent for their proposed law.  The precedent has to be greater than what existed for the Sullivan law.

On page 11 Thomas mentions, specifically, six states which fail the test. According to the decision, six states require some special need beyond that of ordinary citizens for self defense. Those states are:

California, Hawaii, New York, New Jersey, Massachusetts, and Maryland. The District of Columbia is mentioned, with the caveat the law there has been enjoined by the lower court for several years.  The laws in those states, by being mentioned, appear to this correspondent, to have been effectively struck down.

On page 14, Justice Thomas goes on to strike down the ridiculously complicated "two-step" framework which has become common to interpret the Second Amendment in several Circuit courts.

In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.

Today, we decline to adopt that two part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

On page 59, Justice  Thomas recounts of the purposes of the Fourteenth Amendment, to protect the freed slaves and to ensure their right to arms.

On page 64, Thomas states late 19th century regulation should bear little weight compared to earlier evidence.

As we suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.

On page 66, Justice Thomas dismisses the Kansas court understanding of the Second Amendment in 1901 as clearly erroneous:

For example, the Kansas Supreme Court uphelda complete ban on public carry enacted by the city of Salinain 1901 based on the rationale that the Second Amendment protects only “the right to bear arms as a member of the state militia, or some other military organization provided for by law.” Salina v. Blaksley, 72 Kan. 230, 232, 83 P. 619, 620 (1905). That was clearly erroneous.

On page 68, Justice Thomas explains the limitations on the carry of arms are few and not broadly applied.

Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.

Continuing on page 69, Justice Thomas explains the Second Amendment is due all the same respect as the First Amendment and the Sixth Amendment.

The Second Amendment is not a Second Class Constitutional Right. It deserves the same respect as the First Amendment, or the Sixth Amendment. 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 than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

Finally, Justice Thomas strikes down the New York law as unconstitutional.

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Alito writes a concurring opinion, starting on page 75.

I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.

On page 77, he explains the thrust of the dissent. His explanation is similar to what this writer has written, many times

Like that dissent in Heller, the real thrust of today’s dis-sent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit. That argument was rejected in Heller, and while the dissent protests that it is not re-arguing Heller, it proceeds to do just that. See post, at 25–28.

Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun. In 1791, when the Second Amendment was adopted, there were no police departments, and many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own. It is hard to imagine the furor that would have erupted if the Federal Government and the States had tried to take away the guns that these people needed for protection.

Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.

On page 79, Kavanaugh joins with Roberts in concurring. They do not say the concur "in full". They list the many ways the Second Amendment may still be regulated. It is disappointing, but their concurrence does not carry as much weight as does Thomas' opinion.

On page 83, Barret concurs in full, and warns against using Reconstruction Era history in interpreting the Second Amendment. She notes the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.

The dissent starts on page 84. The dissent by Breyer Starts with an false use of the English language:

"In 2020, 45,222 Americans were killed by firearms."

The basis for nearly all "gun control" legislation is the transference of motive and volition from people to an inanimate object. The correct English usage is: Americans were killed with firearms, not by firearms.

Justice Breyer goes on to claim the Constitution does not place certain things outside of government power to do. He complains about the majority opinion thus, on Page 85:

It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests maybe. The Constitution contains no such limitation, and neither do our precedents.

Justice Breyer is mistaken. One of the clear purposes of the Constitution is to place certain things outside of government power. A core philosophical building block of Progressive thought is limits on governmental power are bad. This is not the philosophy the Constitution was based upon.

Breyer simply contends the majorities interpretation of historical law is wrong. He supplies the minorities' interpretation.

This opinion should go far in restoring Second Amendment rights. It is difficult to see how even the Ninth Circuit can uphold the Hawaii licensing scheme in Young v. Hawaii, or the bans on magazines over 10 rounds or bans on so-called "assault weapons" in California, when those items have already been ruled to be covered by the Second Amendment.

However, Progressive judges are persistent and inventive in finding ways to justify the positions they wish to take.

This opinion does not end the fight for restoring Second Amendment rights. It moves us along the path toward full restoration.

 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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