Bruen Dissent and Gun Control (Part 19)

by | Nov 15, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Supreme Court - Gun RightsThe dissent continued: III A How does the Court justify striking down New York’s law without first considering how it actually works on the ground and what purposes it serves? The Court does so by purporting to rely nearly exclusively on history. It requires “the government to affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of ‘the right to keep and bear arms.’” Ante, at 10. Beyond this historical inquiry, the Court refuses to employ what it calls “means-end scrutiny.” Ibid. That is, it refuses to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest.

Although I agree that history can often be a useful tool in determining the meaning and scope of constitutional provisions, I believe the Court’s near-exclusive reliance on that single tool today goes much too far. The Court concedes that no Court of Appeals has adopted its rigid history-only approach. See ante, at 8. To the contrary, every Court of Appeals to have addressed the question has agreed on a two-step framework for evaluating whether a firearm regulation is consistent with the Second Amendment. Ibid.; ante, at 10, n. 4 (majority opinion) (listing cases from the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D. C. Circuits).

At the first step, the Courts of Appeals use text and history to determine “whether the regulated activity falls within the scope of the Second Amendment.” Ezell v. Chicago, 846 F. 3d 888, 892 (CA7 2017). If it does, they go on to the second step and consider “‘the strength of the government’s justification for restricting or regulating’” the Second Amendment right. Ibid. In doing so, they apply a level of “means-ends” scrutiny “that is proportionate to the severity of the burden that the law imposes on the right”: strict scrutiny if the burden is severe, and intermediate scrutiny if it is not. National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F. 3d 185, 195, 198, 205 (CA5 2012).

The majority could have begun its analysis by noting that New York is one of only 6 states that require that the applicant demonstrate a specific and continuing threat against them before a permit to carry can be granted. This fact is surprising to most people and goes a long way towards dispelling the fears at the heart of the dissent’s position.