It is no surprise that the US Supreme Court ruled in New York Rifle and Pistol Association v. Bruen on June 23 that the Second Amendment provides “a right to keep and bear arms in public for self-defense.” Everyone had expected this.
What is surprising—at least to those who imagined the court would take account of skyrocketing murder rates in impoverished communities, mass killings of schoolchildren in Sandy Hook (2012), Parkland (2018), Uvalde (2022), mass shootings in supermarkets, nightclubs, workplaces, and an astounding number of killings of family members and acquaintances as well as suicides—is that the reason the court finds a right to carry guns publicly is because Americans had guns in 1789.
The Constitution was ratified in 1789. Under a methodology of case interpretation known as originalism, the justices parsed colonial-era statutes about guns and storage of ammunition and old English law that could have influenced the thinking of the Framers when they wrote the Second Amendment. It conjures the image of the justices meeting for deliberation around a séance table, calling upon the spirits of James Madison and his fellow Framers to speak to them from the dead and tell them what to do.
But what of today’s dead in Buffalo and Uvalde? Perhaps they also spoke, though justices cannot admit hearing their voices. Justice Brett Kavanaugh, joined by Chief Justice Roberts, wrote a concurring opinion clearly limiting this ruling to handguns.
Referring not to the contemporary carnage but to colonial law that prohibited the use of “dangerous and unusual weapons,” they said that states “shall issue” licenses to carry firearms in public, but not “unusual” ones.
It does not take an AR-15 to defend against a burglar or a mugger. Because their two votes are necessary for piecing together a majority of five, theirs is the critical reasoning here.
Kavanaugh added that “the Second Amendment allows a variety of gun regulations” including background checks, mental health checks, and training in firearm safety, before a person can obtain a license to carry a handgun.
Gun rights case law is premised on the notion that the Second Amendment permits private gun ownership for purposes of self-defense, not for offensive reasons such as pursuing insurrections or quelling riots. So, states may pass laws banning military-style rifles. Because this concurring opinion is the fulcrum on which gun regulation will move, its wording indicates that a future court will regard such laws as Constitutional.
Ruling Allows Limits on Gun Rights
In short, far from expanding gun rights, this case sets their limits. Forty-three states required a license to carry a gun in public. These are “shall issue” licenses, not requiring proof of particular self-defense circumstances as New York’s invalidated “may issue” law did.
In only six states and the District of Columbia were gun owners required to show some particular threat that justified carrying handguns for protection while in public. That is all that Bruen has reined in.
The case addressed licensing to carry guns in public, but it did not say whether licensees may carry concealed handguns. “Open carry,” as opposed to “concealed carry,” might be an issue in future cases.
Personally, if the Constitution requires that people be allowed to carry guns in public, I would like to see them openly displayed—so that I can quietly back out of the room. Professional law enforcement groups had raised this point in amici briefs.
Police officers tasked with getting illegal guns off the street cannot constitutionally stop persons carrying weapons in their pockets or waistbands if Bruen means that self-defense requires concealed carry. If it permits open carry, a state could pass such a law and its police officers could still act when they observe suspiciously bulging pockets.
Bruen’s Originalist Premise Built on Concocted Notions
Bruen’s bedrock premise that the Second Amendment requires gun possession for self-defense is based on concocted notions of how gun owners in 1789 used their weapons. Professional historians object that law-school-trained judges are practicing history without a license, but originalists are undaunted.
Even amateur historians point out that the Second Amendment’s militia clause was written at a time when the Founders would have seen the new nation’s defense as related to the state militias that had just won the Revolution, and when volunteer village constables provided rudimentary public safety against marauders. Personal self-defense was merely an ancillary consequence of owning a musket in 1789.
The attorney general of New York state argued in Bruen that the right to bear arms must refer to current conditions. The Super Bowl has more people in the stadium than the population of any colonial city did, and violence in such “sensitive places” has no equivalent in American history.
Slapping the City of New York, Justice Clarence Thomas said that “there is no historical basis for New York to declare the island of Manhattan a sensitive place simply because it is crowded and protected generally by the New York Police Department.” But municipal police forces in the nation were founded in the 1850s, more than half a century after the Second Amendment was written.
No matter, Thomas (and Scalia before him) say. The invention of police forces does nothing to change the fact that colonists could use their muskets to protect themselves, so Americans today need not expect their professional guardians to do the same.
In short, over-reliance on what post-colonial times were like tends to confirm what today’s justices prefer, not what people in the founding era actually did. Self-defense has varied over the ages.
My own ancestor, William McCoy, fought in the Virginia militia in Revolutionary times and later used his muskets for defense against Native American attacks. Apparently, the defenders then became strong enough to develop an offensive strategy against the native people as well.
I tried to divine what ol’ Uncle Billy would say about dead schoolchildren and teenagers killing each other in 21st-century cities. Would he support a ban on semi-automatic weapons or carrying concealed handguns? Considering he has been dead for over two centuries, he did not have much to say. He probably is not speaking with the justices, either. It is surprising they are listening.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Candace McCoy is a professor of criminal justice at the Graduate Center and John Jay College, City University of New York. She has also served as director of policy analysis for the Inspector General of the New York City Police Department. She is the author of “Politics and Plea Bargaining.”