On June 23, 2022, the Supreme Court decided New York State Rifle & Pistol Association Inc. v. Bruen. In a 6-3 decision, the Court struck down New York’s handgun licensing law that required New Yorkers to demonstrate a “proper cause” in order to be granted a license to carry a pistol or revolver in public. The petitioners, Brandon Koch and Robert Nash, were denied licenses to carry a firearm in public after listing their generalized interest in self-defense as the reason for seeking the license. New York denied their license application because a generalized interest in self-defense failed to satisfy the state’s proper cause requirement. Both men sued, claiming that New York had violated their Second Amendment and Fourteenth Amendment rights in doing so. A district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed.
Justice Thomas delivered the opinion of the Court, in the first major case on firearms regulation that the Court has considered in over a decade.
Please join our legal expert to discuss the case, the legal issues involved, and the implications for the future of firearm regulation in America.
Prof. Mark W. Smith, Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, University of Oxford; Presidential Scholar and Senior Fellow in Law and Public Policy, The King’s College; Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Ryan Lacey: Hello, and welcome to this Federalist Society webinar. This afternoon, June 23, 2022, we discuss Courthouse Steps Decision New York State Rifle and Pistol Association v. Bruen. My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our expert on today’s program. Today, we are fortunate to have an excellent speaker in Mark Smith, whom I will introduce briefly.
Mark W. Smith is a visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology at the University of Oxford, Presidential Scholar and Senior Fellow in Law and Public Policy at The King’s College, and Distinguished Scholar and Senior Fellow of Law and Public Policy at Ave Maria School of Law. He’s a constitutional attorney and Host of the Four Boxes Diner YouTube channel, which provides scholarly and historical analyses of the Second Amendment. Mark is also a New York Times bestselling author.
After our speaker gives his remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can toward the end of today’s program. With that, thank you for being with us today. Mark, the floor is yours.
Prof. Mark W. Smith: Thank you, Ryan. I appreciate that. So today is a very big day because. Actually, June 23, 1948, was the birthdate of Clarence Thomas, who actually wrote this decision in NYSRPA v. Bruen. And of course, this is a major decision. This is the first huge decision involving the Second Amendment in over a decade, and it was much watched because, as you know, the text of the Second Amendment talks, really, about two rights. There’s the right of the people to keep arms, which was addressed in the cases of Heller and McDonald, meaning you had the right to possess them loaded in the home, unlocked, ready for confrontation and self-defense. But Heller and McDonald did not directly address what the meaning of that second textual right was–the right to bear arms.
So today, in NYSRPA v. Bruen, the Supreme Court talked about what does it mean -- what does the text mean of the right to bear arms in the Second Amendment. And what the Court found–which was widely understood they would likely do–is that indeed the right to bear arms, just like the right to keep arms, protects a fundamental individual right. In this case, the right to bear arms means you have a right to carry a loaded handgun, unlocked, outside in public in anticipation of self-defense or of the confrontation to protect your life or the lives of others.
Now, before I get into what I think are the significance of the legal rulings—and there’s a lot of major ones, especially if you’re interested in originalism—the one thing I will say about NYSRPA v. Bruen is this is a huge momentous victory for originalism, which we will get to in a second, about how they analyzed the text of the Second Amendment as well as the history relating to the Second Amendment. And Judge Barrett’s concurrence actually touches on this in some detail, which is quite interesting.
So to begin, and for those of you who may not be entirely familiar with firearms law in the United States, generally speaking, there are three types of laws in the United States right now that allow you to carry guns outside the home for self-defense. The first type of law is called permitless carry, which basically metaphorically says, “Well, the Second Amendment is your gun permit. You’re allowed to carry a gun outside the home for self-defense. You don’t need any government permission or license to do so.” That’s called permitless carry. That is the law, and 25 states right now have permitless carry regimes that basically, if you’re a law-abiding American, you’re an adult, you are not a prohibited person under 18 USC § 922(g), you are allowed to carry a gun outside the home for self-defense or lawful purposes.
The second regime is called shall-issue. Now, what shall-issue is, is short-term for saying that a state sets forth a criteria–an objective criteria–that law-abiding Americans can readily meet with some reasonable steps. So a shall-issue carry regime says that as long as you, the American citizen, meet an objective criteria of, let’s say, you’re an adult, you have basic training, you have gone through a background check, you are not a prohibited person under federal law to touch a firearm, then the government authority shall—mandatorily—shall issue a carry permit for you to be able to carry a handgun outside the home for self-defense purposes. Now, right now, there are 43 states–43 states–that are either shall-issue or permitless carry or some combination of the two.
So this gives rise to the specific issue of NYSRPA v. Bruen, which touches on the third type of carry regime in the United States, and this is called a may-issue regime. And may-issue turns the Second Amendment into a privilege, meaning you, the American citizen, have to go to a government official, usually a law enforcement department like the state police or a local police department, and you have to ask permission of that state government authority for you to be able to exercise your right to carry a gun. And in order for you to meet the criteria of being allowed to carry the gun, it’s not objective. It’s up to the government deciding that you are exceptional, that you are special in some way, that you have a special need to carry a firearm as opposed to being just an American worried about self-defense.
So this may-issue regime was what was challenged today in NYSRPA v. Bruen, and the Supreme Court held that the Constitution doesn’t work that way. You, as an American, have the right to carry a gun outside the home for self-defense. It is your right. You do not have to go, “Mother may I?” to a licensing regime and ask for permission and beg them to get that special license. And that’s what happened in this case. The facts of this case were quite simple. There were several gentlemen in the state of New York. They went to their local law enforcement. They said, “We’re worried about using a gun -- we want to have a gun for self-defense.” And they said, “Do you have a special need? Are you unique? Is there something special about your situation?” They said, “No, we’re just Americans. We want to be able to carry a gun for self-defense generally.” And they said, “That’s not enough. We’re not going to give you the permit to carry statewide a handgun.”
So that, of course, caused a lawsuit. It went up. The district court held against the Second Amendment in favor of the government. The Second Circuit Court of Appeals affirmed that, saying that, yeah, may-issue permit regimes are constitutional. And then, of course, cert was granted. And today, the decision -- the question presented in the case was, can a government agency or can the government prohibit ordinary individuals from carrying handguns outside their home for self-defense, which is what these may-issue regimes really were doing. And of course, the Supreme Court today said, “No, the government cannot do that. You have a right to carry a gun outside the home for self-defense under the Second Amendment right to keep and bear arms.” So that’s sort of the background there.
Now, the other major thing, in addition to the fact that the plaintiffs won, is what are the six states that are these may-issues? And this is quite interesting. As I mentioned, there’s 43–or 44, depending on how you define it–states that basically allow you to carry a gun if you meet objective criteria or if you’re just a law-abiding American. We were really, in this case, only talking about outlier jurisdictions. This was a distinct minority of states which consisted of New York, New Jersey, California, Maryland, Massachusetts, and Hawaii. Those six states were really outlier jurisdictions.
So the Supreme Court in this ruling today really said, “Look, you six states”—specifically New York in this case—said, “You have to bring your state laws allowing people to carry guns away from the may-issue regime and bring it more into line of either a permitless carry or a shall-issue regime.” And they specifically said, by the way, that shall-issue regimes are perfectly constitutional. That was a point made by Justice Roberts and Justice Kavanaugh on a concurrence where they said that nothing’s wrong with shall-issue regimes as long as they’re objective. So that’s, I think, what states like New York are going to have to move to.
Now, the next thing to consider is the standard of review, and this is a very big deal. In some ways, this is the most important part of this case. The standard review involving the Second Amendment has been going back and forth for the last ten years. And what’s gone on is those decisions that I would say are more favorable to a broad interpretation of the Second Amendment have applied a standard of review called text, history, and tradition—text, history, and tradition—where you look at the text of the Second Amendment first. And then, if there’s any ambiguity or questions about what it meant, you then look at history and tradition. That’s on the one side.
But what we found is on -- usually on the gun controller’s side, the people that wanted more robust gun controls and gun restrictions, they didn’t like the text, history, and tradition test because, at the time of the founding, there were very limited restrictions on firearms. Arguably, they were limited to some fire-related restrictions involving that you couldn’t have black powder and certain wooden structures like in the city of Boston because, if the black powder which you used to fire a firearm back then caught fire, you ran the risk of burning down entire cities that were predominantly made of wood. If you want to call them the gun prohibitionists or the gun control lawyers or, in this case, the state of New York, they didn’t like the text, history, and tradition standard of review. They preferred a different standard.
And over the last ten years, they developed what’s been known as the two-part test standard of review–a two-part test. And the two-part test they came up with -- step one, does a particular gun control gun statute, gun regulation touch upon the Second Amendment in some way? And when they did that first prong of the test, they did look at the text of the Second Amendment and the history and tradition, and if they found a particular gun restriction touched on the Second Amendment, they then said, “Okay, it involves the Second Amendment. Now what?” And this is where the New York State was encouraging the Court to go.
They then said, “We’re going to have a second step of, really, a balancing test, a form of tears of scrutiny.” Now, for those of you who aren’t familiar with this, tears of scrutiny from law school is effectively a balancing test where you balance the interest of the individual whose individual rights are being violated by a law or restricted by a law against the public welfare. That’s a very simple way of talking about tears of scrutiny. Historically over the last ten years, the courts that have, by and large, upheld gun control laws have applied intermediate scrutiny. So again, the courts that have basically embraced gun control and upheld them have said, “Yes, step one. If it violates the Second Amendment or infringes on the Second Amendment or touches on the Second Amendment, that’s step one.” But then we go to step two and engage in, really, a social science or statistical analysis of, “Is the gun control law good for public safety relative to the violation of the individual rights?”
And inevitably, what happened in virtually every one of these cases at the end of the day, the courts defer to the findings of the legislature, and they upheld the gun control statute. Now, this Court in NYSRPA v. Bruen made clear—very clear—that that standard review that the state of New York and other states that generally like gun control -- that this is not allowed anymore. The Court was very clear that going forward, the only issue as to whether or not a law violates the Second Amendment is prong one, step one, which is, does this impact or infringe upon the text or the history of the Second Amendment? If yes, that’s game over. It is a violation of the Second Amendment. It cannot stand. That law cannot be enforced, period, full stop. That’s what this opinion says.
So that second part, which was always being used by courts to uphold legislative findings that gun control somehow save lives—that was the argument—and the Court specifically says that lower courts may no longer do that again, that they may not engage in this kind of analysis. In fact, I’m going to quote what Clarence Thomas said today. He said in the opinion, “If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearms regulations under the banner of intermediate scrutiny often defer to the termination of legislatures.” And here’s the key language from Justice Thomas, “But it is not deference that the Constitution demands here. The Second Amendment is the very product of an interest balancing by the people, and it is this balance struck by the traditions of the American people that demands our unqualified deference.” So that was unequivocally clear that the Court is no longer going to allow lower courts to engage in interest balancing.
Now, I want to mention the ruling here. It’s worth noting that this was a 6-3 decision—a 6-3 decision—on the opinion by Clarence Thomas. And this involves, of course, Justice Roberts signing off as well. Although there’s some concurrences I will get to in a few minutes, it was 6-3 decision on the merits of the matter and the robust opinion that rejected this tears of scrutiny. So the standard of review going forward is, really, text and history—very much an originalist notion along the lines of what Justice Scalia wrote in Heller and Justice Alito wrote in McDonald. So, yes, that’s the standard of review.
Now, the other interesting holding before I get to the concurrences and the dissent is common use or typically owned. One of the next cases coming up, I am guessing, is whether or not AR-15 “assault weapons” can be banned under the Second Amendment and a derivative case involving so-called large-capacity magazines, which are really standard-capacity magazines that legislatures around the country just label as large capacity. Now, there are multiple cases pending before the Supreme Court right now up for cert. Whether or not the Supreme Court’s going to GVR—grant, vacate, and reverse–those cases or take one of them, we don’t know. But what’s very telling is this. In this decision by the Supreme Court in Bruen today, they reaffirmed—again in a 6-3—they reaffirm in the 6-3 the common use test. Now what the common use test is, is what arms—the right of the people to keep and bear arms shall not be infringed—so what arms are protected by the Second Amendment?
Well, we know that arms are anything that can be used defensively or offensively to protect a person. And the Supreme Court in Heller and in McDonald and in Caetano, which dealt with stun guns, and today in Bruen reaffirmed the following test, which is if a firearm or weapon is commonly possessed by Americans for lawful purposes, it is a protected arms under the Second Amendment. Now, this is significant because we know that AR-15s and so-called large-capacity magazines are owned in the tens of millions—if not hundreds of millions when it comes to magazines—by Americans today. So that seems to be -- although they specifically say, “We’re not dealing with other Second Amendment issues today,” the fact that the Supreme Court reiterated the common use or common possession test for arms that are protected seems to suggest that that would bode favorably for those that are interested in striking down laws involving large-capacity magazine bans or AR-15-style assault weapon bans. But again, we don’t know that. But that is, I think, a tell from the Supreme Court on the types of weapons.
The next critical thing—and this is something that everyone who followed NYSRPA v. Bruen was very interested in—was the notion of sensitive places—sensitive places or gun-free zones. In the Heller decision—and this has now come out over the years through -- I think Justice Stevens wrote his memoirs about this—in the Heller decision, there was the urge—at least according to reports that I read—that Justice Stevens, who was in the dissent in Heller, encouraged Justice Kennedy to write a small, short section in Heller that basically said, “Yeah, we know we’re deciding Heller that says you have a right to a loaded firearm in your home for self-defense purposes, but this decision should not be taken as evidence or proof for something that a lot of the long-standing gun control laws in America are problematic or unconstitutional.” One of that involves banning guns in “sensitive places.”
Now, sensitive places is the language that was used by the Supreme Court in Heller—and again, it is a euphemism for gun-free zones—saying, “We, the government, get to ban guns at a school. We get to ban guns at a polling place,” whatever it is, wherever they want to label it. So one of the concerns—depends on the side of the case you were on—was would the Supreme Court try to address the notion of sensitive places and either expand upon, reaffirm it, or narrow it from the language they used in Heller. Because in Heller they said that nothing about this decision suggests that laws banning guns in sensitive places such as government buildings or in schools should be a problem. They presumptively said those laws would be constitutional.
And what’s interesting is in the briefing in this case, there was a lot of flagging of the issue that said, “Geez, Supreme Court, if you issue a ruling that says New Yorkers have a right to carry handguns outside the home under the Second Amendment, what’s to stop the state of New York, or from any of these states that generally are unfavorable to gun rights, what is to stop them from basically saying that the entire state or the entire city is a ‘sensitive place?’ Can’t they just pass a law that says everything is a sensitive place if they serve alcohol, if there’s more than five people in it, if there’s lights on, anything?” Right? You can define it -- you can label anything, anything you want. And there was concern that if the Supreme Court did not say something about sensitive places, then what would be -- the next step by states like New York would be to pass laws saying, essentially, the state is a sensitive place.
And the Supreme Court actually did address sensitive places in this decision. And what the Supreme Court said is quite interesting. They acknowledged this notion of sensitive places, but they said that you address this historically, meaning you go back in time to the founding era and ask yourself, “Are the sensitive places based on the history of America that you could not bring firearms?” And although they didn’t squarely decide sensitive places, they alluded or mentioned some things that could be sensitive places or gun-free zone. They specifically mentioned in their opinion polling places. They mentioned legislative bodies—legislators could be the Capitol, US Capitol, state capitol—and they mentioned polling places, state capitol, and courts. So what’s interesting about that list of sensitive places in today’s opinion is they -- and then they do reference the Heller quote involving schools.
So if you look at that, all four categories, assuming you’re talking about public schools at least, touch on a government function. So one could read this decision as suggesting that the only gun-free zones that would pass constitutional muster as a sensitive place would be those areas where there’s some sort of government activity taking place, whether it’d be voting, legislative acts, or court decisions. The other interesting note, I would suggest, is that those are also places that are treated as sensitive places in that they have people there with firearms to protect you. So if you go to a government building, you go through a metal detector, and then there’s people there with firearms to basically take the burden of protecting yourself off your back and put it onto the back or the obligation of the government. Again, that was a big question. The Supreme Court did deal with sensitive places, and the way they did it seems to have narrowed the definition from what they were saying in Heller to those places where you have government-related activities.
The last thing I want to mention is just the dissent and the concurrences. So there was a dissent—the three justices, Justice Breyer with Justice Kagan and Sotomayor. Justice Breyer wrote the dissent. And I would summarize the dissent, really, as saying that because guns kill so many people—of course, guns don’t kill anyone; people using guns kill people, but set that issue aside -- they essentially said, “Because of the serious consequences of using firearms,” in their view, “are so deadly and problematic for society, we feel the need that we can treat the Second Amendment differently from all the other rights.” And in the concurrences, Justice Alito specifically wrote a very detailed concurrence where he goes almost line by line and really addresses all the specific arguments made by the dissent. So that’s really what the Alito concurrence was. So Alito, I should note, says, “I subscribe and embrace the Court’s decision in all respects.” So this was not a plurality or anything like that. He says, “But in addition, I want to address specifically some of the arguments made by Justice Breyer’s dissent,” and that’s what he does.
And again, what’s interesting also is that Justice Kavanaugh writes a concurrence as well, and Justice Roberts signs on with that. He makes, essentially, one critical point to say that there’s nothing unconstitutional, in Justice Kavanaugh’s view, about shall-issue regimes. Again, as I said at the start, three types of carry regimes for handguns in America—permitless carry, shall-issue, and may-issue—this case struck down may-issue statutes but embraced shall-issue or permitless carry. And Justice Kavanaugh, probably to head off at the pass any suggestion that a shall-issue permitting system would be unconstitutional, he and Justice Roberts say nothing about a shall-issue regime if done objectively and rationally is a constitutional problem. And that was the essence of his concurrence.
And Justice Barrett, she made very clear right from the start, as did every concurrence, that she embraced completely in full the Court’s majority 6-3 opinion, but she did want to add one point. She simply said that there was a discussion at oral argument—that there was a discussion that’s been going on about which is the relevant time period for history. Because again, the standard of text, history, and tradition, well, what is the history? When does the history begin for you to consider it as a Court? When does the history end for you to stop considering it? And she simply said that we, involving the Second Amendment as she saw it, did not resolve whether the relevant time period for Second Amendment cases is at the time of the founding, 1791, when the Second Amendment is adopted. Is it the founding era then, or should it be post-Civil War, post-Fourteenth Amendment ratification time period of the late nineteenth century? She said we haven’t clearly resolved that. But in her view, we didn’t need to resolve that in this case because either way, the right to carry guns outside the home was clear based on history, whether you look at the founding era or the post-Civil War era. So Justice Barrett just flagged this as a future issue to be considered but didn’t really take an official position on it because she said you didn’t need to to resolve this case in favor of those that were looking for an expansion of the Second Amendment right.
Okay. See, I think those are the highlights of the decision. There’s a lot more to talk about, but I think that gives you a sense of what the case was about and the decisions that were rendered.
Ryan Lacey: Well, thank you so much, Mark. Please, if our audience -- if you have questions for Mark to answer, you can enter it into the Q&A feature at the bottom of your screen. And I will read those to Mark, and we’ll get to them. To start off -- kind of taking moderator’s privilege. I have a couple of questions of my own. My first one is why now? You mentioned that this was the first case—significant gun case—that the Court has taken up in a decade. And I wanted to see what about this Court—this makeup of the Court, this cycle—why did the Court take it up, and what’s the significance of the timing?
Prof. Mark W. Smith: I think there’s two answers. I think a very pragmatic answer would be that as of the end of 2020, you had a change in the composition of the Court, where Justice Ginsburg had passed away and she was replaced on the Court by Justice Amy Coney Barrett, who had a written a very powerful Second Amendment dissent on the Court of Appeals in a case called Kanter v. Barr. That would be one answer. But there’s another kind of interesting answer that I think has not gotten enough coverage on this particular case. One of my friends always said to me that when God wants to punish you, he or she grants you your wish.
And I bring this up because people forget that there was another NYSRPA Second Amendment case that was granted cert in 2018. And what happened in that case, it was a very narrow question of whether or not you had a right to carry your handgun in a lockbox outside New York City to a gun range outside the city and up to -- bring it from New York City to upstate New York or perhaps to Long Island or into New Jersey, all of which are near but not in New York City, but they’re near New York City. And what happened there is the state of New York and the city of New York were so desperate to prevent a ruling on the Second Amendment, which would have been, by necessity, narrow, by the way. They passed laws after the Court granted cert to moot out the law that was being constitutionally challenged.
So you woke up, I think in the spring of 2020, when the decision came out, the Supreme Court said this was a Second Amendment problem, but they’ve changed the law. They mooted out the law, so we’re not going to issue a decision. So as a result, today’s opinion did not have to -- really, it was writing on a blank slate. Right? It was not having to try to distinguish or apply or interpret, or what have you, what would have been a very narrow Second Amendment win, at best, for the Second Amendment community, if you will, from the first NYSRPA case that was granted cert, I believe, in 2018. So I think those are the things to keep in mind. And again, it’s an example where if New York State today and New York City today might be looking at themselves saying, “We probably should not have mooted out that case because that was a case where Justice Ginsburg was still on the Court, and the ruling probably would have been much more narrow than what we’re seeing here today.” And I’m sure they’re looking at themselves today asking themselves, in hindsight, did they make the right strategic decision in mooting that case out that was already granted cert before the Court.
Ryan Lacey: Makes perfect sense. My second question before we move on to the audience questions is touching on the shall-issue regimes. Does the reaffirmation of the constitutionality of shall-issue regimes by the Court here -- does that make it more difficult in the future to challenge some of those shall-issue regimes that might be burdensome to one’s Second Amendment rights?
Prof. Mark W. Smith: I think it depends on what the objective criteria is. So for example, the easy way -- let’s talk about what New York might do today. So really, there’s an argument that New York State and New York City could maintain their current laws. I haven’t looked at them in great detail, but there’s an argument that they could almost maintain their current laws and simply cross out the words may-issue and turn them into shall-issue. I believe New York State, they have training requirements that are modest. You have to go through, I think, a class to learn about the gun laws. I think you have to demonstrate that you can fire accurately at some rudimentary basic level, that you have firearm familiarity. I think there’s a background check, these things.
It’s not clear to me that those very basic requirements would be unconstitutional, but I will tell you what could raise a major red flag. I haven’t looked carefully at this, but I’m guessing there’s a lot of politicians and political actors in places like the state of New York that are probably upset by this because this has upset the apple cart of a law that they’ve been enforcing since 1911—the Sullivan Law that basically banned the possession -- or banned the carrying of firearms without asking the government for permission. And I’m thinking they’re probably asking themselves, “Well, how can we make it harder for people to carry firearms in the state of New York in light of this ruling?” And if they start to increase the regulations, increase the rules, increase the time requirements, increase the fees, then I think that might be viewed as an intentional violation of the Second Amendment, a violation of civil rights under 42 USC § 1981 through 1988.
And of course, as you know, if you charge too much money for any kind of a fee like a licensing fee, it crosses a line and becomes an unconstitutional tax on a constitutional right, which we see in cases like -- I think it was Minneapolis Tribune involving a tax out there on ink. It violated the First Amendment as a First Amendment-specific tax. Poll taxes, of course, are another example of unconstitutional taxes. So if New York and these other states decide to make it too onerous or charge a lot of money for people to get these carry permits, I think you would see constitutional challenges along those lines.
Ryan Lacey: Yeah. Kind of moving onto audience questions and combining a few questions from several members of our audience who asked similar things, what impact do you think this case, if at all, will have on the recent pushes for gun control both at the state and federal level with things like raising the minimum age of purchase firearms and long guns to 21, magazine capacity bans, red flag laws, etc.? Will this case have an impact there?
Prof. Mark W. Smith: I think, overall, it’s probably very favorable to gun rights. So let’s just take a couple specific ones. Let’s talk about the 18 to 21 issue. Certainly, 18- to 20-year-olds are allowed to vote under, I believe, the Twenty-sixth Amendment. They’re allowed to serve in the military. They can be drafted. And again, from a text, history, and tradition point of view, which is how the Supreme Court today tells you is the criteria, if you go back in time to 1791 and ask yourself at the time -- well, first of all, the text of the Second Amendment refers to the people. And certainly, 18-, 19-, and 20-year-olds fall within the definition of American people, number one. So textually, they would be protected, I would think.
But beyond that, if you look at the history of the Second Amendment, they also would be protected because immediately after the Second Amendment was adopted in 1791, you have two militia acts, the Militia Acts of 1792, which were enacted as well by the first Congress, as was the Second Amendment. So what did the first Congress do in determining who had to serve in the militia? And they concluded that 18, 19, and 20-year-olds under the Militia Act of 1792 were required to serve. And again, this is the same Congress, the first Congress, that we looked to for a lot of different constitutional interpretation reasons, including that of the Second Amendment. So on the age cases, I think text, history, and tradition is very favorable to those that are supportive of the notion that 18-, 19-, and 20-year-olds have constitutional rights to keep and bear arms.
As to, like I mentioned earlier, the AR-15 bans, large-capacity magazine bans, again, if you go back in the text, history, and tradition, there’s nothing in American history at the time of the founding that suggests there were bans on types of firearms in that sense. So historically, I would say again, that’s a pretty strong argument that they’re protected. And going beyond that today, Justice Thomas, in this decision, reaffirmed the common use test, or common possession test, and we know that millions of people—millions of Americans—lawfully own for lawful purposes AR-15s and magazines—large-capacity magazines, if you will—for lawful purposes. And I think that’s a very important test. And people sometimes misconstrue the importance of the common use or common possession test. That actually, in my opinion, is really more of a broad, favorable interpretation or favorable test in favor of a broad understanding of the Second Amendment, not a limiting.
Because one of the big arguments, of course, is made against private possession of firearms in the United States is that criminals will use firearms to do bad things to good people, and therefore, we need to restrict the firearms. But the Supreme Court’s standard of commonly possessed or commonly used by law-abiding Americans for lawful purposes puts the focus where the Second Amendment’s rights should be, which is on the behavior and use of these firearms by law-abiding Americans and ignores the misbehavior of bad people and evildoers who do bad things with firearms because you can do a bad thing or an evil thing with anything, including your arms, feet, and fists. So I don’t know if that answers the question fully, Ryan, but’s that how I would view it coming up.
Ryan Lacey: Yeah. Circling back and come to an in-common usage idea, does this case have an effect -- will it have any effect on the National Firearms Act or Gun Control Act that have banned certain types of firearms or made it extremely difficult to get certain types of firearms, short-barreled rifles, automatic weapons, all other weapons under those? Does that reaffirmation of this in common use standard, does that put the NFA in danger?
Prof. Mark W. Smith: I think if you look at how Justice Roberts has run the Supreme Court, it is certainly one of incrementalism, I would say, and not massive jumps forward. In fact, I would make the case the NYSRPA v. Bruen today is not a massive jump forward because, again, 43 American States already recognize the right to carry guns outside the home, and you had a right to do it. We were only today, in this case, talking about a six-state outlier group. So it’s not a massive change. It's really an incremental change. And the reason why I mention that is from an incrementalism point of view, the next logical thing, if the Supreme Court wanted to get into what other types of arms are protected, would be, again, to take either a “assault weapon ban case” or a “large-capacity magazine ban case” first before they would ever start to look at the details of the NFA.
Now, with that said, for those of you out there interested in the National Firearms Act from the 1930s -- if you’re curious about where that might be going, I would look very carefully at some of the Chevron doctrine cases dealing with administrative law and the two bump stock cases that have been rescheduled repeatedly, and the Court has not decided whether or not to take those. Because in all of those types of cases, there’s a real discussion of how much power a regulatory agency—the ATF in the context of firearms of course—has to take an existing statute and redefine, let’s say, what a firearm means. So if you’re interested in the NFA, I would really be looking at Chevron-doctrine type cases and the bump stock cases specifically that are before the Court to see what the Court does with those because I think that would be a more fruitful approach to narrowing the scope of the NFA, which has been broadened considerably through administrative regulations.
Ryan Lacey: Yeah. And if our audience is more interested in that, we are actually having a webinar on the ATF’s redefinition of a firearm and their new final rule that’s coming out in August. That will be on July 26, and you can register on our website. So if you’re interested in that sort of thing, please go there and sign up for it. Onto our next question, is restricting the rights of a citizen in another state within the scope of this decision? Or how do you think this creates some scheme for reciprocity among the states?
Prof. Mark W. Smith: I think that’s a great question, and it’s actually a question I’ve been mulling over since the oral argument. We know that under current Supreme Court precedent, you have a right to travel. Those cases, as I recall, came up in the context of people moving from state A to state B and then asking for welfare benefits. And as I recall, there was a series of cases saying that -- well, there was a series of statutes saying that, “Well, if you want to get welfare benefits from our state, you need to live in this state for six months or a year before you can apply.” And there was a series of Supreme Court decisions, as I recall, saying that, “No, as soon as you move to another state, you’re entitled to all the benefits of that state, including the right to apply for welfare benefits.”
So you raise a great question. If you take the right to travel that exists in Supreme Court precedent and you combine it with the fact that you have a right to carry guns outside the home for self-defense under the Second Amendment, the Second Amendment is nationwide, right? I don’t lose my right to free speech if I go to California and give a speech or if I go to Chicago and give a speech. It’s the same First Amendment right. I have the same right to religion, the same right to prayer, or what have you. So I do think if you combine the notion of this right to travel under Supreme Court precedent with this decision, I think there is an interesting argument that -- yeah, I think if you have a concealed carry permit for one state, maybe that has to be embraced and recognized by other states under the Full Faith and Credit Clause. But again, I think that is a question that will have to be thought through more carefully. But I do see a possible approach for that, given the right to travel cases combined with this case.
Ryan Lacey: Our next question is, does Justice Thomas’s opinion discuss the historical pedigree of shall-issue permitting regimes? It did not look to me as if the Roberts opinion does.
Prof. Mark W. Smith: Well, let me answer the question this way. There were three types of laws that the Court talked about as historical pedigrees. And in some ways -- to find any kind of a classification or category requires you to include stuff in the box and then exclude things outside the box. And the Court talked about three historical analogies, arguable analogies, that the dissent raised as to why there was no right to carry guns outside the home under the Second Amendment. There were common law, statutory laws, and then surety laws. And I’ll try to touch on these really quick.
The first observation, they said there was a bunch of English common laws, usually the Statute in Northampton that banned, arguably, the right to carry arms outside the home. But the Supreme Court looked at that and says, “This looks very ambiguous to us. These were English laws. We don’t know if the Founding Fathers would have been excited to embrace English law of this type given that we had just fought a revolution. And beyond that, we really kind of think the best interpretation of the Statute in Northampton and these related laws is as an antiterrorism statute, meaning you can carry a gun peacefully outside the home or arms out peacefully outside the home. You just can’t do it to terrify people. You can’t go out and scare people.” And they kind of viewed those laws—those English common laws—as really anti-terrifying the people or scaring the people.
Then they also add the statutory laws where they did talk about this sort of shall-issue regime a little bit. After the founding era—this is really the Antebellum South—there were some states that banned concealed carry. And this is what I think maybe the questioner’s touching on. The states that banned concealed carry, those laws were upheld in a couple states. But the reason why the state concealed carry laws—the state bans on concealed carry in the South—were upheld before the Civil War was because those citizens of those states had the right to carry firearms openly for self-defense. So really, courts in the South said, “Look, you can ban concealed carry as long as you let Americans open carry, meaning you can display your firearm.” And that was how the Court, the Supreme Court, kind of looked at those cases.
And the last one is the surety notions, which again, the surety—to make this very quick—is in the nineteenth century in places like Massachusetts, if they thought you were a risk to yourself or others, they could force you to post a surety bond for you to continue to carry. But even there, the Court said, “Look, these laws all presuppose that everyone had a right to carry. But if you misbehave with your firearm or we thought you would misbehave, then you get to continue to carry the firearm.” You just had to post a bond, and I think, if anything, is somewhat analogous to the red flag notion. Because remember, if you think about red flag laws, these are prior restraints on a constitutional right.
Now, we always hear the famous saying, “You can’t fire in a theater.” Yes, that’s true, but we don’t gag everyone when they go into a theater. But if you shout fire in a theater and there’s damages, you pay the price. If you open your mouth exercising your First Amendment rights and you defame someone, you pay the price. If you open your mouth, you’re exercising your First Amendment right, and you commit fraud by what you say, you pay the price. There is after-the-fact punishment that applies for you abusing your constitutional right to speak out. But what’s weird, it gets backwards in the Second Amendment context where a lot of these gun control laws say, “We’re not going to let you carry even though you haven’t demonstrated any act or anything that suggests that you’re a criminal, and we’re just going to prevent you from carrying.” And I think, to some degree, that’s what the Court was really saying—that the presumption is, in a free society here, you have the right to carry, and that’s what the text of the Second Amendment says.
Ryan Lacey: Our next question is about the sensitive spaces and especially about schools being labeled sensitive spaces. Hayden Trivette (sp)—and I apologize if I pronounce anyone’s name incorrectly—asks, “Do schools as a sensitive space, does that really make sense given that all of the other sensitive spaces that you mentioned—particularly courthouses, polling places, etc.—pertain directly to constitutional political processes of the government and schools do not?
Prof. Mark W. Smith: I think that’s a good question. Like I said, I think this case actually does narrow the notion of sensitive places from where it was in Heller. And again, Heller was really -- it looked like some sort of issue that was put in there by, insisted upon by Justice Kennedy to be the fifth vote at the urging of Justice Stevens. But I will say this about schools. There was at least one brief submitted to the Court on sensitive places as it related to schools, and it’s actually kind of interesting. It involved, as I recall, the University of Virginia, which, of course, is a college where Thomas Jefferson sat on the board. He was one of the Board of Trustees of the University of Virginia at the time. They passed a rule at the University of Virginia that said that students could not bear arms or bring guns onto campus, but adults, faculty members, anyone else could bring the guns they wanted onto the University of Virginia campus.
So I do think, based on text, history, and tradition, there’s an argument based on that University of Virginia precedent that adults, faculty members, when it comes to what’s on campus have a right to have firearms on campus. But perhaps there’s an argument based on the historical precedent that students may be banned from carrying guns on campus. And I should note because that was the University of Virginia during the founding era, I think the concern there was that if you let the students bring guns onto campus, they were all going to be engaging in duels. I think the regents of the University of Virginia at the time did not want that to take place. But that is arguably a founding-era precedent of how to deal with schools.
Ryan Lacey: Speaking more practically about the effects of this case in the immediate future, what are the next courses of actions for these states that have these may-issue regimes? In New York, for example, can adults now carry firearms? Or in Maryland, do people now have to bring suit in order to challenge that may-issue regime, or how does this work?
Prof. Mark W. Smith: Well, let’s talk about how the New York situation’s going to work. As I read the decision, it, in and of itself, does not enter in injunction. It’s referring this case back down to the lower courts, which means it’s probably going back to the Second Circuit, and then the Second Circuit will refer this case back to the district court in New York. And what I’m guessing will happen is that the district court will issue an order enjoining the enforcement of this may-issue carry statute.
Now, there are precedents for how this plays out. For example, in the case of Moore v. Madigan in the Seventh Circuit, what happened there was Illinois was told they have to allow people to carry guns under Second Amendment. And they told the state legislature of Illinois, “You have 180 days to come up with a carry regime that is acceptable and constitutional.” And during that 180 days, the state of Illinois had to come up with a statute. And if they failed to do so -- it was pretty clear that if they failed to come up with a regime to allow Illinois residents to carry, then the Court indicated that we’re just going to let all law-abiding Americans carry in the state of Illinois, and you basically will have a permitless carry system.
So I think when it comes to New York, I’m guessing the district court will enter an injunction enjoining the enforcement of this law, and the state legislature will have to act to tweak or change their law in some way. Or they can make no change, and if they make no change, then it seems to me that as long as someone meets the qualifications—the other qualifications, you pay, you get the background check and whatnot—then you would have the right to carry in New York because that seems to be what the Supreme Court’s saying, and I’m assuming that’s what the district court will enforce when it’s remanded back down there, which is what’s happening now.
Ryan Lacey: Our next question is, what is your response to the legal scholars who say Justice Kavanaugh’s concurrence is in tension with the majority opinion and could impact how Bruen is applied to government actors in lower courts?
Prof. Mark W. Smith: I’m not quite sure where that tension would be in that. I mean, Kavanaugh seems to simply be saying what he said at oral argument, which is -- if you remember the oral argument, Justice Kavanaugh said, “I’ve looked at these states involving shall-issue regimes, and they all seem fine to me.” In other words, he just said, “There doesn’t appear to be any extra problems with them that I don’t see anywhere else, so why are these six states not being shall-issue?” So I don’t see any dramatic tension between -- and remember, the first sentence, as I recall, of the Kavanaugh concurrence again reaffirms that he signs off on the majority opinion wholeheartedly and fully.
And I think it was very clear that those six justices did not want a situation where certain people could try to take advantage of the differences in the concurrences to try to carve out an exception that wasn’t there or to have an exceptions law to the rule. But I don’t see any dramatic tension between what Justice Kavanaugh wrote and the majority opinion. And again, Justice Kavanaugh embraced the majority opinion, as did Justice Roberts.
Ryan Lacey: Understood. Sifting through some of these other questions here -- so what do you think the next -- I think you already covered this, but what do you think the next step is for the Court? When do you think the next Second Amendment case will take place? Is this something that they’re going to put on shelf for a while more? Are we going to have to wait another ten years for the next expansion of the -- or understanding of the Second Amendment? Or is this something that’s -- are we going to see more cases more frequently?
Prof. Mark W. Smith: Well, I think this is really a great question for Court watchers more than constitutional scholars or whatnot because, really, what we’re talking about is what will the justices do. We know that it requires only four justices to agree to hear a case. So I’m just speculating here—I have no inside knowledge of what the justices are thinking—but there’s really kind of two approaches here. Right? On the one hand, they could be very incrementalist. They could be very step-by-step. And they could take all the pending Second Amendment cases right now, and they could GVR them, meaning they could grant cert, vacate the lower court decisions, and send them back down for reconsideration in light of the decisions in Bruen. So that would be a very conservative incrementalist approach that, historically, a justice like John Roberts would want to do. So if it’s the incrementalist approach, that’s the sort of thing -- they would take all the Second Amendment cases that are pending for cert and send them back down for reconsideration, and then depending on what happened, the Supreme Court would reconsider those in a year or two.
On the other hand, look, if the Dobbs case—this is talking about the Dobbs case involving abortion. If you are looking at a Supreme Court right now that is willing to take on the abortion issue, possibly overturn Roe v. Wade—we don’t know—address affirmative action in state court -- in state colleges as well as private colleges, address the Second Amendment, potentially carve back or shrink or reduce the authority of the Chevron doctrine in administrative cases, this is a Court that is acting boldly, which would be, I would say, a little bit different than incrementally. So if this is a Court that intends to continue to act more boldly than incrementally, then I could see the Supreme Court granting cert in one of these other Second Amendment cases. And again, I think the two most likely ones right now is either a so-called large-capacity magazine ban case, which is up there, or a so-called assault weapon case, which is an AR-15 ban case. I would think, if they’re going to take another Second Amendment case, it’s going to be one of those two, is my best guess.
Ryan Lacey: What do you think is the risk of backlash here at the federal level and at states that are Democrat-controlled or maybe hostile to Second Amendment rights? What do you think we’ll see from the administration, from Congress, and from state legislatures and governors as a response to this broadening of the Second Amendment?
Prof. Mark W. Smith: Well, I think they’re going to force those people that are interested in expanding the Second Amendment -- for those people who are interested in applying the Second Amendment as written, I think that a lot of the six anti-gun states, if you will—they were the outlier states—I’m sure they will do whatever they can to slow the process. They will probably add additional requirements. They will still try to define everything as a sensitive place and essentially say, “Sue us. We don’t care.” And I think that’s probably what a lot of these places -- it’s really a political question—“What are they going to do?” And I think a lot of these sort of anti-gun jurisdictions are going to behave that way.
But I think, keep in mind that, in light of this ruling, you have to also look at the states that are more friendly to gun rights. Again, as I mentioned at the start of this presentation, right now, there are 25 states that allow permitless carry, which means if you’re law-abiding American and an adult, you can carry guns if you’re not a prohibited person. I think you will see a dramatic expansion from 25 to 28 to 30. So you don’t have to just look at the so-called blue state, anti-gun states, if that’s what you want to call them. You can also look at the growth of gun rights and whatever you say gun accessibility, whatever you want to call it, in these sort of more red or pro-gun states, if you want to be political in that sense.
So I think it has two things. Yes, the outlier states may work overtime to try to limit the scope of this ruling. But I think it may also serve as an excuse, if you will, to expand the right to carry into permitless carry regimes and allow the states that are shall-issue now but will be converted into permitless carry on the grounds that the Supreme Court said, “It’s a constitutional right. Let’s respect it.” So if you’re a well-behaved, law-abiding American and an adult, you should be allowed to carry firearms to protect yourself, your family, and your community.
Ryan Lacey: Do you think that a party in the—let’s call them the Second Amendment community—are now going to feel like this is a signal to them that they should be more litigious and push more aggressively to challenge some of these state and federal laws? For instance, one of our audience members mentions, in California, it’s illegal for him to buy ammunition from out of state and bring it into California. However, a nonresident of California can buy ammunition outside and then move into California with it. Is this going to promote more litigious action from people who would like to see the Second Amendment applied as originally written, as you put it?
Prof. Mark W. Smith: Oh, absolutely. Absolutely. And I do want to mention one thing about litigation that sometimes gets lost in this. You will often read newspaper articles that make comments like, “Every court to date that’s decided this question has ruled in favor of gun control.” But a reason why that is is where are these cases being brought in front of which judges. You don’t get Second Amendment cases as a general matter being brought in, let’s say, Texas or Oklahoma or Arizona because those are more friendly states. They don’t pass gun control legislation that violates the Second Amendment. So you don’t see litigation in those jurisdictions where the judges are arguably more friendly to the notion of the Second Amendment. So you really only see litigations in the jurisdictions that are more hostile to gun rights.
But now, now that this Supreme Court has come out and says that balancing tests deferring to the legislature is unacceptable as a matter of constitutional jurisprudence involving the Second Amendment, I do think you’ll see a lot more challenges being brought than ever before in those “bad gun states,” if you will. And I think you’ll see a lot more of those challenges. And because these courts won’t be able to balance away the interest in the name of public safety—they’ll have to follow the text of the Constitution and the history of the Second Amendment—I think there’s also a dramatic increase in likelihood that, not only will you see more lawsuits involving this, I think you’ll see more lawsuits prevailing even in those jurisdictions that historically have been hostile to gun rights.
Ryan Lacey: Makes perfect sense to me. We only have a couple minutes left, Mark. I just wanted to give you the chance if you had any closing thoughts or ideas or words of wisdom. Anything else you would like to say to our audience before we close out?
Prof. Mark W. Smith: My only comment about this is that all these Supreme Court cases, they’re long. There’s a lot of footnotes. There’s a lot of details. There’s a lot of nuances to these. I’m sure people on both sides of the political aisle involving their view on gun rights and the Second Amendment is looking at every single word, every single footnote, every single asterisk to try to argue future litigations. This will continue to be a major area of litigation in the United States. But there’s no doubt that the -- there’s also the symbolic nature of the ruling. And I think that this also is a major symbol in favor of the Second Amendment and originalism that we should interpret the Constitution as it was written by the Founding Fathers and our framers and not simply apply modern-day morality and balancing tests, which is popular in certain quarters of legal academy and the legal system.
So again, I think it’s a win at the end of the day for originalism. It’s a win for those that believe in the text of the Constitution. And if you want to amend it, then you should use Article V procedures. So overall, yeah, I think this is probably a very good day for those that are interested in the text and history of the Constitution in all respects, and I think that’s really all I have to say.
Ryan Lacey: Thank you. We’re coming up again to the top of the hour, and I just wanted to thank you, Mark, for joining us today and giving that awesome summary of the case and answering all of our audience’s questions. I’m sorry that we weren’t able to get to all of them. On behalf of The Federalist Society, I would like to thank Mark for the benefit of his time and expertise today, and I want to thank our audience for joining us and participating with all your great questions. We welcome listener feedback by email at firstname.lastname@example.org, and you can put your additional questions there if you would like. And as always, keep an eye on our website and your emails for announcements about upcoming webinars and other programming. And thank you all for joining us today. We are adjourned.