Judge Bumb continued: By making “the constitutional standard endorsed in Heller more explicit,” the Bruen Court clarified that: the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The Government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition. Bruen, 142 S. Ct. at 2129–30. Drawing an analogy to the First Amendment, the Bruen Court reasoned that when the Government restricts constitutionally protected conduct like speech, “the Government bears the burden of proving the constitutionality of its actions.” Id. at 2130 (citations omitted). Thus, the State must be able to meet its burden of proof in the Second Amendment context and “must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2126.
The Bruen Court was clear in its instruction to this Court when undertaking a constitutional analysis of a state’s gun control legislation. This Court must rely on history to inform the meaning of constitutional text rather than make empirical judgments about the costs and benefits of firearms restrictions. As the Court explained, “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 firearm regulations under the banner of ‘intermediate scrutiny’ often defer to the determinations of legislatures.” Bruen, 142. S. Ct. at 2131. And, while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here.
Judge Bumb’s analysis demonstrates how the “justifiable need” standard at issue in Bruen was routinely used by law enforcement and the courts to deny permits to carry in New Jersey. With the great deal of discretion that was vested in the decision-makers, they could almost always find a basis to deny a legitimate permit request.
