Heller famously concluded that the “inherent right of self-defense [is] central to the Second Amendment right.” But in New York, the exercise of that right depends on where you live. The state is much more likely to grant unrestricted licenses to carry to those living in rural areas than it is to those in urban areas, even though the threat of violent crime is much lower outside of America’s cities. Indeed, one could fairly say that New York’s regime is one of urban, rural, and intermediate scrutiny.
Despite its protestations, New York cannot fairly compare its law to a First Amendment permissible time, place, or manner restriction. Consider the right to assemble in protest. It is limited on its own terms as a “right of the people peaceably to assemble.” Therefore, restrictions intended to limit the threat of unrest caused by assembly affect only the conduct least protected by the First Amendment—violent riots—while leaving the core of the assembly right untouched. By contrast, New York’s public-carry regime strikes at the very core of the right to bear arms for self-defense, severely limiting it in those areas where firearms are most necessary. For that reason, it should not be considered a close analogue of any permissible time, place, and manner restriction on First Amendment activity.
For the same reasons, the Second Amendment right—in Bruen, the right to “bear Arms”—resists a mechanical application of the familiar tiers of scrutiny, as then-Judge Kavanaugh explained in his Heller II dissent. Scrutiny analysis is intuitively easy to understand: Courts examine the governmental interest asserted and the degree of fit required. The more exacting the scrutiny, the more important the government interest must be, and the tighter the fit must be. Therefore, the strictness of scrutiny selected reflects the court’s value judgment about the importance of the governmental interest compared to the individual right asserted.
To see how this normally plays out, let’s return to the example of peaceful assembly. As the threat of violence at a given protest increases, the government’s interest in protecting the peace increases and the people’s right to assemble decreases. So, a regulation imposing a midnight curfew would likely meet intermediate scrutiny if research showed that the risk of violence increases dramatically in the early hours of the morning.
Now consider how the same analysis might be applied to New York’s licensing regime. New York is more likely to grant “unrestricted” licenses—licenses that allow citizens to carry in areas frequented by the general public—to residents of rural areas than to residents of urban areas. The necessary effect? Those who are the most likely to need a handgun for their self-defense are unable to carry one.
Despite this, New York’s briefing dutifully plods through the intermediate scrutiny analysis. First, it (fairly) represents its “profound interests” in “promoting public safety and preventing gun violence.” Then, to meet the fit requirement, it cites research showing that public carry restrictions lower rates of gun-related homicides. But, because of the nature of the self-defense right recognized in Heller, the petitioners argue New York strikes at the very core of the Second Amendment right to satisfy its interest in safety. As a result, any court’s attempt to apply scrutiny must find a way around the fact that both the state’s and the individual’s equities weigh in the same direction.
During oral argument, New York Solicitor General Barbara Underwood stressed that it was an applicant’s duty to differentiate herself as uniquely worthy of carrying a firearm and not the state’s duty to identify dangerous individuals to exclude. To quote a few variations: “I think that [the application] would have to be brought home to you in particular . . . something specific to you rather than [something] happening in the world at large;” “something non-speculative;” and “[something not] sufficiently recent or relevant or [that] couldn’t be dealt with adequately by [a] premises license.” As petitioners argued before the Court (see page 5), New York has turned the fundamental Second Amendment guarantee into a matter of administrative grace.
Because of the interests at stake, traditional scrutiny of the Second Amendment is fraught with conceptual difficulty and, as I argue elsewhere, prone to abuse in the lower courts. These difficulties are only heightened in the face of the Second Amendment’s plain text, which explicitly guarantees that the right to keep and bear arms “shall not be infringed.” In Bruen, the Court should actually contend with this language and ask itself whether any regulation—no matter the interest served or the degree of fit achieved—is consistent with its original public meaning. To quote Justice Scalia, the Second Amendment “is the very product of an interest-balancing by the people.” To faithfully apply the balance of the interests at stake, the Court should interpret the right only in accordance with its text, history, and tradition and not in light of any anachronistic concept of means-end scrutiny.
That interpretive philosophy is something that both petitioners and respondents can get behind. As others have noted, both parties in Bruen focused their fire on text, history, and tradition. Justices peppered both Mr. Clement and Solicitor General Underwood about the historical record, at times dating all the way back to the much-debated Statute of Northampton. And even though—as talented advocates should—both parties make fallback arguments on scrutiny, it is heartening to see textual and historical arguments rule the day. No matter the result in Bruen, the Court’s opinion should honor the work of the parties by couching its holding in terms of the Second Amendment’s text, history, and tradition.
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