Tuesday, November 2, 2021
The Supreme Court will hear oral arguments tomorrow in a critical Second Amendment case testing New York's requirement that an applicant for a public carry license demonstrate "proper cause." Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
Robert Nash and Brandon Koch both had licenses under New York law to carry a firearm outside the home for hunting and target shooting. They both asked licensing officers to expand their licenses to permit them to carry their firearms for self-defense. In each case, the licensing officer declined, although the officer permitted Koch to carry a firearm when traveling to and from work. Nash, Koch, and the New York State Rifle & Pistol Association sued, arguing that the denials and limitations violated the Second Amendment.
The Supreme Court has ruled in recent times that the Second Amendment protects an individual right to keep arms within the home for self-defense. But at the same time, it also said that the Second Amendment does not prohibit longstanding, traditionally accepted regulations of firearms. This case tests whether New York’s “proper cause” requirement for carrying a firearm outside the home for self-defense falls within those longstanding, traditionally accepted regulations, and, if not, whether it sufficiently serves New York’s interests in reducing crime and gun violence.
Does New York’s “proper cause” requirement for carrying a firearm outside the home for self-defense fall within the longstanding, traditionally accepted regulations that categorically comport with the Second Amendment, and, if not, does it sufficiently serve New York’s interests?
Under New York law, a person qualifies for a license to carry a concealed firearm outside the home if the person can show that “proper cause exists” for the license. The New York Penal Code does not define “proper cause,” but state courts have interpreted it to mean that an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Klenosky v. N.Y. City Police Department, 428 N.Y.S.2d 256 (N.Y. App. Div. 1980). In other words, an applicant must show a “particularized” need to carry a gun, not just a “generalized desire.”
New York courts have developed “a substantial body of law instructing licensing officials on the application of [the proper-cause] standard.” Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012). The standard “requires consideration of all relevant factors,” including “the occupation, the background and the place of work” of the applicant
In most counties, a state-court judge acts as the licensing official and makes the determination; in New York City and two surrounding counties, a local police commissioner or a sheriff serves this function. The licensing official must consider all relevant factors bearing on the applicant’s “proper cause,” including the applicant’s occupation, background, and place of work, and the location where the applicant proposes to carry. An applicant can submit evidence in support of their applications; they can even submit new information to establish eligibility after a denial. An unsuccessful applicant can appeal the denial to state court.
Robert Nash and Brandon Koch both had licenses under New York law to carry a firearm outside the home for hunting and target shooting. They both asked licensing officers to lift those restrictions and to expand their licenses to permit them to carry their firearms for self-defense. Nash cited a spate of recent robberies in his neighborhood and his firearm safety training. Koch cited “his extensive experience in the safe handling and operation of firearms and the many safety training courses he had completed.”
After holding hearings, the licensing officer in each case declined to remove the restrictions, but clarified that Nash and Koch could carry arms for self-defense in certain locations. In particular, the officer wrote “that the restrictions DO ALLOW you to carry concealed [firearms] for purposes of off road back country, outdoor activities similar to hunting, for example fishing, hiking & campaign etc.” In addition, the officer wrote to Nash “that the restrictions are intended to prohibit” Nash from carrying arms for self-defense in places “typically open to and frequented by the general public.” The officer wrote to Koch that he “may also carry to and from work,” suggesting that Koch demonstrated adequate individualized safety concerns for a limited license to carry.
Nash, Koch, and the New York State Rifle & Pistol Association sued, arguing that New York’s standard violated the Second Amendment. The district court dismissed the case, and the United State Court of Appeals for the Second Circuit summarily affirmed. This appeal followed.
The Supreme Court has only ruled twice in recent times on the Second Amendment. In the first case, District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual fundamental right to keep a firearm in the home for self-defense. In the second case, McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that under the Fourteenth Amendment this right applied equally against the states.
While the Court in these cases held that the Second Amendment includes an individual right to keep a firearm in the home, it did not say much about the scope of that right, or the range of permissible government regulations. The Court only said that the right, like other fundamental rights, is “not unlimited,” and that nothing in the Second Amendment would call into question “longstanding measures” like laws forbidding firearms in sensitive places, restrictions on the commercial sale of firearms, bans on dangerous and unusual weapons, and laws that prohibit certain people (like felons and people with mental disabilities) from possessing firearms.
The lower courts picked up on the focus on text, history, and tradition in Heller and McDonald and coalesced around a two-part test. The first part asks “whether the regulated activity falls within the scope of the Second Amendment.” Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017). A law does not infringe on the Second Amendment if it falls within one of the “presumptively lawful regulatory measures” identified in Heller (and mentioned above), if it regulates conduct that is historically outside the scope of the Second Amendment, or if it falls within a category of longstanding, accepted regulations of firearms. This step requires courts to examine the history and tradition of government regulation of the activity in question.
If the historical evidence suggests that the regulated activity is not categorically unprotected by the Second Amendment, or if the historical evidence is inconclusive, then the courts determine whether the government regulation (the means) sufficiently serve the government’s purpose (the ends). For those laws that regulate the “core” of the Second Amendment (the right to keep and bear arms within the home for self-defense), the courts apply “strict scrutiny,” the most rigorous test known to constitutional law, and almost certainly strike the law. For those regulations that fall outside the “core” of the Second Amendment (laws that touch on the right to keep and bear arms, but don’t directly prohibit a person from keeping a firearm in the home for self-defense), courts apply “intermediate scrutiny.” Under this test, the government regulation must be substantially related to an important government purpose. Some regulations pass; others don’t.
Against this backdrop, the plaintiffs argue first that the Second Amendment includes a fundamental right to carry a firearm outside the home for self-defense, and that New York’s “proper cause” standard violates this right. In support, the plaintiffs point to the plain text of the Second Amendment. They say that the text protects the right not only “to keep” arms in the home, but also to “bear arms” outside of the home. They contend that this makes sense, given that their need for self-defense extends outside the home.
The plaintiffs also point to the history of the Second Amendment. They assert that the English right to bear arms (which spawned the Second Amendment) protected a right “to carry ordinary arms for a range of lawful purposes, chief among them self-defense.” They claim that this right only grew when it migrated to the United States. They contend that “[c]arrying arms was commonplace in early America, and it was regarded as an exercise of the fundamental, inherent right to every individual to defend himself.” The plaintiffs say that our experience after the Civil War (when we adopted the Fourteenth Amendment, which, the Court later ruled, applied the Second Amendment to the states) confirms this. In particular, they claim that federal officials “insisted that securing [freedmen’s] Second Amendment rights was critical to ensuring that they could protect themselves” from racially motivated atrocities, and that this “belief was premised on the understanding that the Second Amendment guaranteed the right to carry arms outside the home for self-defense.”
The plaintiffs argue that New York’s “proper cause” standard violates this right. They claim that the standard effectively reserves the right for those “happy few” who can satisfy the rigorous standard, but denies it to all others. They also contend that the loose standard puts too much discretion in the hands of officials who determine whether an applicant satisfies it. They say that the requirement cannot meet “any of the standards of scrutiny that the Court has applied to enumerated constitutional rights”—either strict scrutiny or intermediate scrutiny—and that it is therefore unconstitutional.
New York counters that the text, history, and tradition around the Second Amendment show that New York’s requirement comports with the Second Amendment, and that the conditions on Nash’s and Koch’s licenses are valid. The state says that the Second Amendment right to keep and bear arms for self-defense does not mean that individuals can carry firearms anywhere and anytime; instead, “[l]ike all constitutional rights, the right to carry firearms incorporates the limitations embedded within the ‘historical understanding of the scope of the right.’” Moreover, the state claims that government officials have historically enjoyed broad discretion to determine when and where a person can carry a firearm, “and to restrict the carrying of concealable firearms, particularly in populous areas.” And it contends that its current law “is less restrictive than its historical antecedents, and thus does not violate any historically rooted constitutional norms.” New York asserts that many historical public-carry laws would not have allowed Nash and Koch to carry their firearms in public as widely as the state did here. The state writes that “no jurisdiction would have allowed what petitioners seek: the right to carry a handgun everywhere (or virtually everywhere)—including the crowded and populous areas of cities and towns—based on speculation that a confrontation warranting the use of deadly force might suddenly arise.” The state says that because its “proper cause” standard falls squarely within the range of traditional restrictions on the right to bear arms, it categorically complies with the Second Amendment.
But even if the Court were to scrutinize the “proper cause” standard, New York argues that it passes intermediate scrutiny, the appropriate test for this regulation. The state says that it has “compelling interests in reducing violent crime and gun violence,” and that the “proper cause” standard “substantially furthers those urgent goals, as a wealth of empirical studies confirm.” Moreover, it claims that the standard offers flexibility to allow “individuals to carry handguns in times and places for which they have established a non-speculative need for armed self-defense, hunting, or target shooting,” allowing officers to tailor restrictions specifically to meet the state’s interests.
Finally, New York argues that if the Court has any doubt whether the “proper cause” standard meets intermediate scrutiny, or any doubt about the evidence to support the intermediate scrutiny analysis (like the numbers and percentages of public-carry permits granted), then the Court should remand the case for further proceedings. According to the state, “On remand, New York could demonstrate the falsity of petitioners’ unsupported allegation that New York’s licensing regime flatly prohibits law-abiding citizens from carrying handguns in public for self-defense.”
The government filed an amicus brief in support of New York, and made substantially similar arguments. In addition, the government pointed to federal laws as examples of the types of gun regulations that legislatures may adopt, consistent with the Second Amendment.
This is only the third case to come to the Court since 2008 testing the metes and bounds of the Second Amendment. And given that the Court said very little about the Second Amendment in those earlier cases, this case will almost certainly give us much more information—including whether and how the Second Amendment applies outside the home (a question that splits the lower courts), and a determinate framework for judging Second Amendment questions.
In other words, this case will determine whether and how the Second Amendment applies outside the home, telegraph the Court’s approach to state and federal gun regulations across the board, and direct the lower courts in judging all gun regulations. All that’s to say, the stakes are, well, high.
The Court has a range of options. First, at one extreme, the Court could simply rule that New York’s “proper cause” requirement falls within the longstanding, traditionally accepted regulations that are categorically exempt from the Second Amendment. Next, as a middle position, the Court could rule that the “proper cause” requirement falls within the Second Amendment’s ambit, and that it either survives or fails at some level of scrutiny, probably intermediate scrutiny. (The Court could decline to rule on the application of intermediate scrutiny and, as New York suggests, remand the case to the lower courts for more fact-finding on this question.) Finally, at the other extreme, the Court could rule that the right to carry a firearm outside the home for self-defense falls squarely within the “core” of Second Amendment rights, and that New York’s “proper cause” requirement fails.
It seems unlikely that this Court will go with the first extreme, and much more likely that it will go with the middle position or the last extreme. Such a ruling—especially that last extreme—could give substantial support to gun-rights advocates in challenging all manner of state and federal restrictions on firearms. Whatever the Court does, though, its ruling will deeply impact the policy and politics of gun regulations and the Second Amendment going forward.