THE SECOND AMENDMENT: EXPANDING FIREARM RIGHTS
The average citizen’s right to bear arms remains a hotly debated issue.[1] As of June 2021, 40% of U.S. adults live in a household with a firearm.[2] Of those living in a household with a firearm, 30% also say that they own one personally.[3] While this data reflects that a large portion of the population believes it is necessary to own a firearm for either protection or various other reasons, there is an equally large percentage that is concerned with the consequences of widespread firearm ownership, specifically violent crime carried out with a firearm.[4] About half of Americans view gun violence as a serious problem facing society today.[5] Attitudes about the severity of gun violence also vary wildly by race, ethnicity, and political affiliation.[6] This divide over the consequences and need for gun ownership has led to differing interpretations of the Second Amendment for decades.
California remains a prime example of strict firearm regulations. Some of these regulations include prohibiting fourteen different categories of persons from owning a firearm, limiting firearm transfers to only California licensed dealers, requiring firearm purchasers to be residents of California and provide proof-of-residency during a purchase, and limiting handgun sales to only certain makes and models approved by the California Bureau of Firearms.[7] Stringent regulation like this has historically been permitted by Supreme Court interpretations of Second Amendment protections as they apply to state laws, however, recent decisions may be signaling a tonal shift by the Court regarding how far states can go to restrict firearm ownership.
Historically, the Supreme Court has allowed states to exercise broad discretion in regulating and restricting firearm ownership. The Supreme Court has viewed the Second Amendment’s language guaranteeing the right of the people to keep and bear arms “shall not be infringed,” applied primarily to Congress only.[8] Recently the Supreme Court has altered its position on this, ruling that the Second Amendment protects a persons’ right to own a handgun in the home for the purpose of self-defense and this right cannot be infringed by states under the Due Process Clause of the Fourteenth Amendment.[9] This ruling reflects an ideological shift favoring gun rights advocates and will be important to note as the Supreme Court prepares to hear arguments in another case that has the potential to further expand firearm rights.[10]
The Supreme Court granted certiorari in April to a case challenging a New York law requiring any citizen applying for a concealed carry license to convince the state that they have “proper cause” to carry a firearm and is set to hear oral arguments in the case in November.[11] While many states, including ones with few firearm restrictions, require their citizens to obtain a license to carry a firearm in public, the New York law’s requirement for applicants to show “proper cause” has generated controversy because there is no accepted understanding of what “proper cause” is.[12] Gun rights advocates argue that this requirement is too arbitrary and leads not only to confusion for applicants but corruption by state licensing agencies and police departments.[13] Multiple investigations into the concealed carry licensing of states with “proper cause” requirements show a potential link between applicant approval and factors such as personal relationships with the licensing sheriff or prior campaign donations.[14] Advocates of “proper cause” laws argue that the costs and benefits of carrying a gun in public are far different than that of someone’s home, and because of that they require more extensive regulation.[15]
The main question the Supreme Court is set to answer is whether the Second Amendment grants a right to the average American citizen to carry a handgun outside their home.[16] How the Court rules on this issue will squarely affect the legality of states that employ “proper cause” requirements. Given the Supreme Court’s overwhelming conservative majority, it is unlikely that it would have agreed to hear this case if it intended to simply uphold New York’s “proper cause” requirement. Therefore, any potential outcomes should be analyzed through the lens of these laws being ruled invalid.
The first possibility is that the Supreme Court narrows its decision to only addressing the language of “proper cause” laws.[17] As these laws are written now, the “proper cause” requirement for New York requires a concealed carry applicant to demonstrate a special need for self-protection that is different than that of the general community.[18] The Supreme Court could rule that this language is unconstitutional under the Second Amendment and simply direct New York to rewrite its licensing rules in accordance with that opinion.[19] This would leave some ambiguity as to whether the Second Amendment truly creates an un-infringeable right to carry a firearm in public. The second possibility is that the Supreme Court addresses the issue broadly by interpreting that the Second Amendment creates a general right to carry firearms outside the home in the same way a citizen has a right to carry a firearm inside their home.[20] If the Court takes this broad approach, it will effectively nullify any “proper cause” requirements among the eight states that implement them.[21]
The decision in this case will be a landmark for the future and will likely foreshadow the stance of the Supreme Court in future cases. The Supreme Court’s decision to hear this challenge to New York’s concealed carry law, the first major Second Amendment case it has heard since 2010, coincides with the appointment of Justice Barret which gave conservatives a 6-3 supermajority in the Court.[22] Whether the Supreme Court decides to take a narrow or broad approach when addressing New York’s concealed carry requirements, the decision will undoubtedly further the views of the conservative majority and be a signal of decisions to come.[23]
[1] See Nelson Lund, Adam Winkler, Common Interpretation: The Second Amendment, Nat’l Const. Ctr., https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ii/interps/99 (last visited Nov. 14, 2021).
[2] Katherine Schaeffer, Key facts about Americans and guns, Pew Rsch. Ctr. (Sep. 13, 2021), https://www.pewresearch.org/fact-tank/2021/09/13/key-facts-about-americans-and-guns/.
[3] Id.
[4] Id. id (poll showing that 48% of Americans view gun violence as a serious issue in society).
[5] Id.
[6] Id.
[7] See generally Kamala D. Harris, California Firearms Laws Summary, Cal. Dep’t of Just. (2016), https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/pdf/cfl2016.pdf.
[8] See U.S. Const. amend. II; see also United States v. Cruikshank, 92 U.S. 542, 553 (1875).
[9] See McDonald v. City of Chicago, 561 U.S. 742, 791 (2010); see also District of Columbia v. Heller, 554 U.S. 570 (2008).
[10] McDonald, 561 U.S. at 791. (holding expanding Second Amendment protections to state legislation).
[11] N.Y. State Rifle & Pistol Ass'n v. Beach, 818 F. Appx. 99 (2d Cir. 2020); see also N.Y. State Rifle & Pistol Ass'n v. Bruen, No. 20-843, 2021 U.S. LEXIS 5317 (Oct. 18, 2021).
[12] Jennifer Mascia, The Supreme Court’s Next Big Gun Case, Explained, The Trace (May 18, 2021), https://www.thetrace.org/2021/05/supreme-court-gun-rights-concealed-carry-new-york-corlett/.
[13]See Cam Edwards, California’s Concealed Carry Laws Enable Graft And Corruption, Bearing Arms (June 16, 2020, 3:00 PM), https://bearingarms.com/camedwards/2020/06/16/californias-concealed-carry-laws-enable-graft-and-corruption-n38173.
[14] Stephen Stock, et al., Donors to Sheriff's Political Campaigns Far More Likely to Get Concealed Gun Permits, NBC Bay Area (Aug. 7, 2020, 10:54 AM), https://www.nbcbayarea.com/news/local/donors-to-sheriffs-political-campaigns-far-more-likely-to-get-concealed-gun-permits/2309812/.
[15] See Joseph Blocher, Good Cause Requirements for Carrying Guns in Public, 127 Harv. L. Rev. F. 218 (2014).
[16] Mascia, supra note 12.
[17] See Id.
[18] Lisa Soronen, SLLC Asks SCOTUS to Allow Cause for Concealed-Carry, ICMA Blog (Sep. 23, 2021), https://icma.org.
[19] Mascia, supra note 12.
[20] Id.
[21] Id.
[22] See Amelia Thomson-Deveaux & Laura Bronner, The Supreme Court’s Conservative Revolution Is Already Happening, FiveThirtyEight (Oct. 20, 2012, 6:00 AM), https://fivethirtyeight.com/features/the-roberts-court-vs-the-trump-court/.
[23] Id. (data showing Supreme Court Justices presidential appointee and vote record).