The U.S. Supreme Court struck down a New York handgun-licensing law that required New Yorkers who want to carry a handgun in public to show a special need to defend themselves.
The 6-3 ruling, written by Justice Clarence Thomas, made clear that the Second Amendment guarantees the right “to keep and bear arms” protects a broad right to carry a handgun outside of the home for self-defense, adding that courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history.
This comes as the U.S. Senate reached an agreement on the gun-safety legislation, that if passed, would be the first federal gun-control legislation in 30 years, and would require tougher background checks for buyers under 21 years old, among other things.
The SCOTUS rejected a two-part test that many lower courts have used to review challenges to gun-control measures. That test looked first at whether a restriction regulates conduct protected by the original scope of the Second Amendment and then, if so, whether the restriction is finetuned to advance a significant public interest.
Instead, Thomas wrote, if “the Second Amendment’s plain text covers an individual’s conduct,” the government has the burden to show that the regulation is consistent with the historical understanding of the Second Amendment.
Thomas found that the challengers’ desire to carry a handgun in public for self-defense fell squarely within the conduct protected by the Second Amendment. The amendment’s text does not distinguish between gun rights in the home and gun rights in public places, Thomas observed, suggesting the Second Amendment’s reference to the right to “bear” arms most naturally refers to the right to carry a gun outside the home.
After reviewing nearly seven centuries’ worth of historical sources, beginning in the 1200s and going through the early 1900s, Thomas concluded that although U.S. history has at times placed some “well-defined restrictions” on the right to carry firearms in public, there was no tradition of a broad prohibition on carrying commonly used guns in public for self-defense. With rare exceptions, Thomas added, there was no historical requirement that law-abiding citizens show the kind of special need for self-defense.
Thomas concluded, there is “no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”
In a concurring opinion joined by Chief Justice John Roberts, Justice Brett Kavanaugh sought to portray the scope of the decision as limited. The ruling will not bar states from imposing any licensing requirements, Kavanaugh contended.
There are 43 states, he noted, that use licensing schemes that include requirements such as background checks, firearms training, a check of mental health records, and fingerprinting. Such schemes are objective, Kavanaugh explained, rather than granting “open-ended discretion to licensing officials” and requiring “a showing of some special need apart from selfdefense.”
Indeed, he continued, the Second Amendment “allows a ‘variety’ of gun regulations.” Kavanaugh quoted at length from the late Justice Antonin Scalia’s opinion for the court in District of Columbia v. Heller, the opinion affirming the right to keep a handgun in the home for self-defense.
“Nothing in our opinion,” Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Justice Samuel Alito, who also filed a concurring opinion, suggested, just as he did at the oral argument in November, that “many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791,” Alito concluded, “the Second Amendment guarantees their right to do so.”