EXAMINING THE RECENT & ANTICIPATED LEGAL GROWTH OF AMERICAN GUN OWNERSHIP

Since the Heller decision in 2008, enshrining the individual right for Americans to own firearms,[1] scholars have debated its impact.[2]  In truth, Heller was simply a judicial reflection of the evolving cultural attitude surrounding American gun ownership. In the mid-late nineties, a tidal wave of permissive gun laws swelled across the country.[3]  By 2005, most states had already enacted legislation permitting concealed carry of handguns.[4]  The stage for Heller had already been set. Heller may have dealt with a police officer’s right to carry a gun in his own home,[5] yet most states had already decided their regular citizens are entitled to even more.[6]

NYSPRA v. Bruen is the logical extension of the issue in Heller. In Bruen, a current case at the Supreme Court of the United States,[7] the plaintiffs are challenging New York’s good cause requirement for concealed carry.[8]  This requirement is what makes New York a “may-issue” jurisdiction,[9] as the state retains the discretion not to issue a concealed carry permit if it does not believe the requesting party has sufficient need.[10]  There are eight states which fit into this category.[11]  Conversely, the majority of the country fits into one of two other categories,[12] both of which are more permissive than may-issue regimes.[13] 

The first is the “shall-issue” regime.[14]  In shall-issue regimes, permits are awarded as a matter of course, once the respective statutory requirements have been fulfilled.[15]  There are eighteen states in this category.[16]  Shall-issue represents the middle ground between the may-issue regimes and the “constitutional carry” regimes.[17]  The constitutional carry regimes are the least restrictive type.[18]  Constitutional carry regimes only require that you be legally allowed to own the gun to carry the gun,[19] though age requirements are still enforced.[20]  There is no permit required.[21]  There are currently 24 constitutional carry states in the country.[22]

Officially, every state in the country is now at least a may-issue state.[23]  However, there have been multiple cases through the different federal circuits alleging may-issue states are de facto no-issue states.[24]  Bruen is among them, and asks a single question: whether the Second Amendment precludes New York state from prohibiting the carrying of concealed handguns in public without a showing of good cause.[25]  The plaintiffs allege the state’s good cause requirement functions as a ban because the police almost never find a sufficient showing.[26]  New York is arguing that the law complies with an understanding of the Second Amendment post-Heller and that the rule is congruent with the history of regulations proscribing the carrying of weapons in public.[27]  If Heller was any indication as to how Bruen will play out, it is because Heller’s outcome was already suggested by a changing cultural, political and legal wind.[28]  The plaintiffs in Bruen should be hopeful.  Not only have states further expanded the Second Amendment through the political process,[29] but the Court’s solid 6-3 conservative majority seems to have enough ideological homogeneity to strike down the state’s regulation.

Bruen itself presents interesting realizations. There is an enormous dichotomy in culture that represents the respective positions.[30]  The may-issue states contain some of the most populous cities in the country.[31]  New York of course houses New York City, and California – another may-issue state – houses Los Angeles. The enormous volume of people present in cities is not just an issue of culture, but of safety and crime. Heller itself dealt with a law passed in the District of Columbia.[32]  There is an obvious value divergence across states not necessarily because of the states themselves, but because the states are home to cities with vastly larger populations.[33]  It is no surprise that the plaintiffs in Bruen are from upstate New York, and not New York City.[34]  During oral arguments in Bruen, the issue was on full display.  The liberal sect of the Court was clearly preoccupied with the distinctions between New York City and upstate New York.[35]  The Bruen case presents another interesting realization: the conservative sect of the Court is endeavoring to expand a right via federal power while the liberal sect of the Court endeavors to preserve a state’s right to set public policy.[36]  Even more interesting, is that the liberal sect represents a position that is losing.[37] 

Since Heller, the expansion of gun rights has become a progressive position. Prominent criminal defense attorneys in New York City have supported the striking down of New York’s good cause showing, as a disproportionate number of black Americans have been arrested for the illegal carry of concealed weapons.[38]  Black Americans are increasingly exercising their legal right to keep and bear arms, as are women.[39]  Amy Coney Barrett has expressed the return of Second Amendment rights to non-violent felons.[40]  What has historically been contextualized as a conservative position is quickly losing the burden of declaring it is not.  How could it genuinely be argued that returning rights to felons is a conservative position? How is one to argue that a law which disproportionately disaffects minorities of their liberty is a progressive rule? It is now the liberal sect of the Court which finds itself defending the constitutionality of a law that results in discriminatory treatment of American minorities.[41]

Further, Bruen deals with the legal possession of concealed handguns in public spaces just thirty years after concerted bipartisan Congressional efforts to get handguns off the streets.[42] The country has gone from legislative attempts at suppressing gun violence, owed in part to the crime waves in the 80s and 90s, to an almost uniform trend toward loosening concealed carry laws. The question is begged: why the change? If anything, gun control is one of the few remaining hot-button issues vigorously debated in American discourse.[43]  Yet this is precisely the answer.

Thirty years ago, there was far less debate that gun laws needed to be strengthened among voting Americans.[44]  Controversy is born of disagreement, and if contemporary figures are to be believed, gun control is less popular now than it has been in the last decade.[45]  Some would be quick to point to recent presidential elections and the coronavirus pandemic as potential causes, yet neither of these taken together account for the upward trend of minority and female gun owners.[46]  Nor do they account for gun sale records being broken for multiple years in a row, years prior to the pandemic or the election of a president historically known for his fierce gun control policies.[47]  Neither explains the expansion of carry laws for a decade and a half prior to the Heller decision.

In the 1980s and the 1990s, gun violence was culturally understood to be inextricably linked with drug crime.[48]  The focus then was precisely the sort of street crime that eroded social trust and communal stability. The massive media focus on violent crime, its relationship to the war on drugs and the subsequent racist attitudes which incensed concern about “super predators”, made it easy for Americans to conclude that additional regulation was necessary.[49]  Referencing the years by which certain states began to change their laws from no-issue to shall-issue/may-issue creates two overlapping inferences.  One, that provided violent crime rates are within the public’s perception as ultimately controllable, legislatures generally seem content to keep more restrictive laws in place.[50]  Two, that when the American public determines that levels of violent crime are intolerable in their respective states or elsewhere, the police and legislators themselves begin to support more permissive carry laws as social pressure builds.[51] 

Restrictive jurisdictions both in and outside of America follow this trend.[52]  California, one of the few remaining may-issue states, is experiencing something of a policy renaissance when it comes to carry permits. Although it varies by county, there has been an enormous increase in the number of permits granted in California since the coronavirus pandemic began.[53]  Sheriffs in the state have pointed to the increase in crime occurring to justify the policy change.[54]  The situation is not entirely distinct from the recent gun policy changes in Brazil, where crime has a reputation of being so out of control that restrictive gun laws were rolled back.[55]

The change in the type of gun that is getting the bulk of negative media attention is also relevant.  In the 1990s, it was handguns.[56]  Now, it is rifles like the AR-15.[57]  The shift away from handguns and toward the regulation of semi-automatic rifles is not just a rhetorical pivot by gun control policy makers; it is the folding of an entire dialectic flank. The overwhelming majority of gun deaths are caused with handguns, not rifles.[58]  For gun control policy makers to accept a redirect by their opponents from the types of firearms disproportionately used in gun crime toward those which facially appear more sinister and dangerous, belies an inherently weak negotiating position. Semi-automatic rifles do not even comprise the bulk of the weapons used in mass shooting events.[59]

This reveals the extent to which one side is winning and the other is losing, and so spells the future. Gun control advocates should have seen results which benefitted from the American observation of a multi-decade crime wave, but this is precisely the period in time that no-issue regimes were snuffed out near completely.[60]  Gun control policy makers are occupying themselves pursuing the softest targets. They have long since given up the fight in controlling concealed handguns, instead choosing to focus the bulk of their efforts on the firearms that invade the public conscience the way handguns did in the 1990s. Even with the NRA effectively gutted by recent lawsuits,[61] gun rights continue to expand, a trend which Bruen will likely cement. If so, it may well signal the winner of the next legal fight too.      

[1] District of Columbia v. Heller, 554 U.S. 570 (2008).

[2] See Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 9 George Mason L. Econ Rsrch. Paper Series 1 (2009); see also Andrew R. Gould, The Hidden Second Amendment Framework within “District of Columbia v. Heller”, 62 Vanderbilt L. Rev. 5 (2009).

[3] Map of Concealed Carry Laws in the U.S., HNI, https://www.hni.com/concealed-carry-resources-for-employers/concealed-carry-animated-map (last updated April 10, 2022) [hereinafter Map of Concealed Carry Laws].

[4] Id.

[5] See District of Columbia v. Heller, 554 U.S. 570, 575 (2008).

[6] See Map of Concealed Carry Laws, supra note 3 (concealed carry definitionally goes further than the holding of Heller).

[7] New York State Rifle & Pistol Association Inc. v. Bruen, SCOTUS Blog, https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/ (last visited Mar. 14, 2022).

[8] Brief for Petitioners at 1-2, New York State Rifle & Pistol Association v. Bruen, No. 20-843 (argued Nov. 3, 2021).

[9] Transcript of Oral Argument at 99, 115-16, New York State Rifle & Pistol Association v. Bruen, No. 20-843 (argued Nov. 3, 2021).

[10] Id. at 59.

[11] Map of Concealed Carry Laws, supra note 3.

[12] Id.

[13] Id.; see also USCCA, What Is the difference Between May-Issue, Shall-Issue and Constitutional Carry?, USCCA (Aug. 17, 2019), https://www.usconcealedcarry.com/blog/what-is-the-difference-between-may-issue-shall-issue-and-constitutional-carry/ [hereinafter USCAA].

[14] Id.

[15] Id.

[16] Map of Concealed Carry Laws, supra note 3.

[17] See USCCA, supra note 13.

[18] Id.

[19] See id.

[20] See Age to Carry Concealed With a Permit the State Honors or Under Permitless Carry, https://handgunlaw.us/documents/Age_to_Carry.pdf (last updated Sept. 28, 2021).

[21] USCCA, Constitutional Carry/Unrestricted/Permitless Carry, USCCA https://www.usconcealedcarry.com/resources/terminology/types-of-concealed-carry-licensurepermitting-policies/unrestricted/ (last visited Mar. 14, 2022).

[22] Map of Concealed Carry Laws, supra note 3 (OH only just became such a jurisdiction on March 14th).

[23] Id.

[24] See Complaint at 2-3, Bennet v. Davis No. 1:20-cv-15406 (D.N.J. filed Nov. 11, 2021); see also Complaint 4-6, Francisco v. Cooke No. 3:21-cv-14575 (D.N.J. filed Aug. 3, 2021); see also Complaint at 2-3, Call v. Jones III No. 1:20-cv-03304-DKC (D. Md. filed Nov. 13, 2021).

[25] Brief for Petitioners, supra note 8 at i.

[26] Id. at 16-19.

[27] Brief in Opposition at 2, 9-11, 19-26, New York Pistol & Rifle Association Inc. v. Bruen No. 20-843 (filed Feb. 22, 2021).

[28] See Map of Concealed Carry Laws, supra note 3.

[29] See Map of Concealed Carry Laws, supra note 3.

[30] See Map of Concealed Carry Laws, supra note 3; see generally Kim Parker et al., America’s Complex Relationship with Guns, Pew Rsrch. Ctr. (June 22, 2017), https://www.pewresearch.org/social-trends/2017/06/22/americas-complex-relationship-with-guns/ (the difference between states’ laws can be attributed to cultural differences between coastal states and inland states)

[31] See Map of Concealed Carry Laws, supra note 3; see also The 200 Largest Cities in the United States by Population, World Population Rev., https://worldpopulationreview.com/us-cities (last visited Mar. 14, 2022) (several states with the most restrictive carry laws have the lion’s share of the most populous cities).

[32] District of Columbia v. Heller, 554 U.S. 570, 575 (2008).

[33] See Map of Concealed Carry Laws, supra note 3; see also The 200 Largest Cities in the United States by Population, supra note 31.

[34] Transcript of Oral Argument, supra note 9 at 34, New York State Rifle & Pistol Association v. Bruen, No. 20-843 (argued Nov. 3, 2021).

[35] Id. at 27, 35-37.

[36] See generally id.

[37] See Map of Concealed Carry Laws, supra note 3.

[38] Brief of the Black Attorneys of Legal Aid et al., as Amici Curiae in Support of the Petitioners at 12, No. 20-843 (filed July 20, 2021).

[39] Christian Spencer, Gun Ownership among Black Americans is soaring, The Hill (Apr. 5, 2022), https://thehill.com/changing-america/respect/diversity-inclusion/546454-gun-ownership-among-black-americans-is-soaring; see also Zusha Elinson, Women Are nearly half of New Gun Buyers, Study Finds, The Wall St. J. (Sept. 16, 2021), https://www.wsj.com/articles/women-are-nearly-half-of-new-gun-buyers-study-finds-11631792761.

[40] Evan Gerstmann, Will Amy Coney Barrett Shake Up The Second Amendment In Her First Year On The Supreme Court?, Forbes (Feb. 17, 2021), https://www.forbes.com/sites/evangerstmann/2021/02/17/will-amy-coney-barrett-shake-up-the-second-amendment-in-her-first-year-on-the-supreme-court/?sh=5c1007925541.

[41] See Transcript of Oral Argument, supra note 9 at 27, 35-37.

[42] See Brady Law, ATF, https://www.atf.gov/rules-and-regulations/brady-law#:~:text=On%20November%2030%2C%201993%2C%20the,handgun%20to%20an%20unlicensed%20individual (last reviewed July 15, 2021).

[43] See 4 Important issues in the 2020 election, Pew Rsrch. Ctr. (Aug. 13, 2020), https://www.pewresearch.org/politics/2020/08/13/important-issues-in-the-2020-election/.

[44] See Guns, Gallup, https://news.gallup.com/poll/1645/guns.aspx (last visited Mar. 14, 2022).

[45] Id.

[46] See articles supra note 39.

[47] Gun Sales And Manufacturing Statistics, Gun University (Jan. 3, 2022), https://gununiversity.com/gun-sales-stats/

[48] See Alex Yablon, These Economists Think Guns, Not the Crack Epidemic, Drove the 90s’ Murder Boom, The Trace (Aug. 22, 2018), https://www.thetrace.org/2018/08/guns-supply-shock-crack-epidemic-murder-rates/.   

[49] Caroll Bogert, Analysis: How the media created a ‘superpredator’ myth that harmed a generation of Black youth, NBC News (Nov. 20, 2020), https://www.nbcnews.com/news/us-news/analysis-how-media-created-superpredator-myth-harmed-generation-black-youth-n1248101. 

[50] See Map of Concealed Carry Laws, supra note 3.

[51] See id.

[52] See articles infra notes 53 & 54.

[53] LA County Sheriff’s Dept. Flooded With Requests for Concealed Carry Weapon Permits, KNX News (Aug. 27, 2020), https://www.audacy.com/knxnews/articles/lasd-flooded-with-requests-for-concealed-carry-permits.

[54] Jake Dima, Los Angeles sheriff vows to expand concealed weapons permits amid rampant crime surge, Wash. Exam’r (June 2, 2021), https://www.washingtonexaminer.com/news/los-angeles-sheriff-expand-concealed-weapons-permits-crime-surge. 

[55] See Samantha Pearson & Luciana Magalhaes, Brazil Has an Idea to Fix Rampant Gun Violence: More Guns, The Wall St. J. (Dec. 31, 2018), https://www.wsj.com/articles/brazil-has-an-idea-to-fix-rampant-gun-violence-more-guns-11546315200.

[56] See Brady Law, cited supra note 42.

[57] See Annie Karni & Catie Edmonson, Biden Seeks Assault Weapons Ban and Background Checks, The N.Y. Times (Apr. 7, 2021), https://www.nytimes.com/2021/03/23/us/politics/biden-gun-control.html. 

[58] 2018 Crime in the United States, FBI, https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/tables/expanded-homicide-data-table-8.xls (last visited Mar. 14, 2022).

[59] Weapon types used in mass shootings in the United States between 1982 and February 2022, by number of weapons and incidents, Statista (Mar. 2, 2022), https://www.statista.com/statistics/476409/mass-shootings-in-the-us-by-weapon-types-used/.

[60] See Map of Concealed Carry Laws, supra note 3.

[61] See Broken & Bankrupt: The NRA in 2021, NRA Watch (Sept. 28, 2021), https://nrawatch.org/report/the-continued-decline-of-the-nra/.