Court Strikes New York's "Proper Cause" Requirement for Concealed Carry

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court today struck New York's requirement that a person demonstrate "proper cause" in order to obtain a permit to carry a concealed handgun in public for self-defense. In so doing, the Court also clarified its approach to Second Amendment claims, rejecting the predominant intermediate-scrutiny test applied by the federal circuit courts in favor of an historical analysis.

The ruling means that states can't impose additional conditions on concealed carry permits that would require a person to demonstrate anything other than bare and general self-defense as a reason for seeking a permit. (The ruling seems to validate background checks for such permits, though. It also doesn't call into question restrictions on persons with criminal histories, for example, or restrictions based on unusual weapons in certain locations.) Beyond that, it's hard to say just how far the ruling may impact gun regulations. But it will impact them significantly, and we can expect to see a spate of challenges to test the limits of state regulation under this ruling.

(It's hard to say, too, how much the Court's historical approach may impact its analyses of other rights. The case contains some strong language, untethered to the Second Amendment, that suggests that history must be a primary guide in assessing other rights claims. We've already gotten a glimpse of this in the leaked draft opinion by Justice Alito in Dobbs, the abortion case. Today's ruling suggests that we'll see much more of this going forward.)

The Court split 6-3 along conventional lines. Justice Thomas wrote for the Court. Justice Breyer wrote the dissent.

The case, New York State Rifle and Pistol Association v. Bruen, is the first high-Court ruling on the Second Amendment since it applied the Second Amendment right to self-defense to state governments in McDonald v. Chicago, in 2010. Since that time, lower federal courts have coalesced around a two-part test for Second Amendment challenges. Under the first part, courts ask whether a regulation falls outside the scope of the Second Amendment, drawing on the history of the Second Amendment. If so, the courts uphold the regulation. If not, under the second part the courts determine how close a challenged regulation comes to the "core" of the Second Amendment right. If a regulation touches on the "core" right to self-defense within the home, courts apply strict scrutiny, and ask whether the regulation is narrowly tailored to achieve a compelling government interest. If a regulation doesn't touch on the "core," courts apply intermediate scrutiny, and ask only whether a regulation is substantially related to an important government interest. (These are both familiar "means-ends" tests that courts use in many other contexts. Strict scrutiny means that most or all government regulations will fail; intermediate scrutiny gives the government significantly more room to regulate.)

The Court today said that the second part is inapplicable. It held that courts shouldn't engage in means-ends scrutiny in assessing gun regulations, because the Second Amendment already encompasses means-ends considerations, because Heller and McDonald both applied an historical approach without considering means-ends scrutiny, and because courts aren't well suited to means-end analysis in this context, anyway.

Instead, the Court said that courts should assess state regulations under the Second Amendment based on an historical approach. In particular,

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 of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

The Court ruled that New York's "proper cause" requirement failed this test. The Court said first that the Second Amendment covers an individual's right to carry a handgun outside the home for self-defense (because of the right to "bear" arms). It then said that New York's requirement had insufficient historical support. In short, "But apart from a handful of late-19th-century jurisdictions, the historical record compiled by [New York] does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." (There's a ton to pick apart in the Court's lengthy armchair-historian historical analysis; I won't begin that here, except to note that the Court itself seems to see that its historical analysis raises more questions than it answers.)

Justice Alito concurred to address some of the points made by Justice Breyer in dissent.

Justice Kavanaugh concurred, joined by Chief Justice Roberts, to outline some of the limits of the ruling.

Justice Barrett concurred to point out some of the questions left open in the Court's historical analysis.

Justice Breyer dissented, joined by Justice Kagan and Sotomayor, to place the ruling in the context of recent mass shootings and general gun violence; to set the factual record right; to argue against the Court's historical approach (and its rejection of the two-part test used by the lower courts); and to argue that the Second Circuit rightly upheld New York's law.