Beth Wiggins
Hello from the Federal Judicial Center. I'm Beth Wiggins, director of Research at the FJC, and this is Term Talk. In each eight to 12 minute episode, we discuss what the lower courts may need to know about this term's decisions. Joining me today are Erwin Chemerinsky Dean, distinguished professor of Law, university of California, Berkeley School of Law, and Tara Grove Vincent and Elkins Chair in Law, university of Texas, Austin School of Law. Thank you both for being here today. Today we're discussing the court's decision in New York State Rifle and Pistol Association versus Bruin, a case about the regulation of firearms. The case concerns a New York state concealed carry law that's been in place since the early 19 hundreds. The law requires gun owners to demonstrate proper calls to carry a weapon for self-defense purposes. Tara, can you tell us some about the background and facts of this case?
Tara Grove
Right. So for a very long time, the Supreme Court did not hold that. The Second Amendment did very much it protected state militias, but did not protect an individual right to bear arms. And that all changed in 2008 in a decision by Justice Scalia called District of Columbia versus Heller, where the court held that the Second Amendment does indeed protect an individual right to bear arms, at least a handgun for self-defense inside the home. And then two years later, in 2010 in McDonald versus City of Chicago, the Supreme Court says that this right applies not only to the federal government, but also to the state governments and restricts state regulations of gun ownership, at least to the extent they involve guns inside the home. Now the question after that was whether the Second Amendment did more than that. The Supreme Court declined to hear Second Amendment cases for many, many years.
Tara Grove
But finally in the Bruin case, the court did decide a Second Amendment case on the merits. Now, the case itself involved a New York licensing scheme and there were some indications that the Supreme Court would issue a narrow decision. Those challenging the licensing scheme asked the Supreme Court to decide if there is a Second Amendment right to bear arms outside the home, which would be a large extension of the Heller and McDonald decisions. And the Supreme Court did not grant Sari on that issue. The Supreme Court said, no, we're going to figure out if this licensing scheme makes it too difficult for you, the litigants to get a gun license. And yet the Supreme Court did not issue that narrow decision. Not only did the Supreme Court strike down New York's licensing program, but the court very clearly held that there is now a right to keep and bear arms outside the home.
Beth Wiggins
So Erwin, how did the court analyze those questions and reach that decision?
Erwin Chemerinsky
The Supreme Court six to three declared the New York law unconstitutional. Justice Thomas wrote the opinion for the court. He said that the Second Amendment protects a right to have guns outside the home. This includes a right to have concealed weapons. He said that state laws like New York's that give discretion to licensing officials is whether to give permits for having concealed weapons are unconstitutional. But I think the larger significance of the case is what the court said in terms of how judges are to evaluate state laws that regulate guns. Most circuits that adopted a two-step approach in evaluating firearm regulations, justice Thomas explicitly rejected that. Some had likened it to intermediate scrutiny. Just Thomas said it didn't provide sufficient protection of Second Amendment rights. It's interesting. He also rejected using strict scrutiny. So we're not going to look to whether there's a compelling interest, whether the means are necessary.
Erwin Chemerinsky
He said it's entirely to be historical analysis and deciding what gun regulations are allowed. Let me quote his words. He said, only if a firearm regulation is consistent with this nation's historical tradition, may a court conclude that individual's conduct falls outside the Second Amendment's command. He said the Second Amendment is the very product of interest balancing by the people and it truly elevates of all of their interests, the right of law abiding citizens, Jesus arms for self-defense. So the only question for courts and evaluating regulation of firearms is, is it a type of law that was historically allowed?
Beth Wiggins
So Tara, there were three concurrent opinions. What points did they bring up and emphasize?
Tara Grove
So I think the most important concurrence was that by Justice Kavanaugh, which was joined by Chief Justice Roberts. And that concurrence said that the majority's opinion is important, but it's not going to call into question a lot of state laws including a lot of state licensing laws. And the concurring opinion seems to be designed to reassure us that not many state laws will be struck down. It's not clear that's entirely consistent with the majors approach to the Second Amendment. Justice Alitos opinion seemed to be largely a response to the dissenting opinions, which he said did not take seriously enough the importance of gun ownership to the individuals who care about self-defense in this country. And finally, justice Barrett's concurrence was a little more academic and she noted one of the questions going forward is how the historical analysis should be done. So she noted that there's a question whether the courts should look to the scenario around the 1789 or 1791 when the Second Amendment was created and ratified or around the time of the adoption of the 14th Amendment when the due process clause was created and ratified, at least to the extent that we're talking about state regulations.
Tara Grove
And this could be very complicated because the gun regulations in effect in the 18th century versus the 19th century could be very different. Justice Barrett says this doesn't matter for this particular case, but could be important going forward.
Beth Wiggins
Terry, you mentioned the dissent. Can you talk about that a little bit and how it saw the issue differently?
Tara Grove
The dissenting opinion noted that gun regulation is extremely complicated and depends tremendously by state. Different states may need different kinds of safety measures. And Justice Breyer said, in order to allow states the wiggle room that they need to protect their citizens, we should apply something more akin to intermediate scrutiny as the lower courts had been doing up until Bruin. That allows some protection for the individual right to bear arms, but also allows courts to take into account the need of the governments to regulate firearms in a given context. And so Justice Breyer said a good deal more should be left to the political process.
Beth Wiggins
So Erwin, what are the implications for the lower court?
Erwin Chemerinsky
I think they're enormous. On the one hand, this decision is narrow. All the court holds is that state laws that regulate concealed weapons by giving discretion to licensing officials whether to give concealed weapons, permits are unconstitutional. On the other hand, the implications of what the court says with regard to how to evaluate gun regulations are broad. The court says gun regulations are permissible only if they're historically allowed. In 1791 or maybe 1868, the court was explicit in saying the Second amendment protects a right to have weapons that didn't exist in 1791, just like the First Amendment protects a right, a media that didn't exist in 1791. And so I think this opens the door to challenge to countless federal, state, and local gun regulations with the inquiry for the courts having to be is this analogous to the type of regulation that existed long ago?
Beth Wiggins
What about you, Tara?
Tara Grove
I agree. This creates a somewhat nightmarish scenario for the lower federal courts. The lower courts, along with government lawyers have to do an incredible amount of historical research case by case, and lower courts have larger caseloads in the United States Supreme Court, the Supreme Court enjoys discretionary jurisdiction. The lower federal courts have to hear every case that comes before them and they don't have as many law clerks or as many other resources as the US Supreme Court does. And in a given case, the lower courts are being asked to do historical work that could take an academic as many as two years or more to figure out. And I think that's going to be extremely complicated. I also think there's no guarantee, as the majority thinks that this approach is going to protect Second Amendment rights. I think that different judges are going to see analogies in different ways. And how does one draw analogies to, for example, the modern day subway, how does one draw an analogy even to public schools that did not exist in certainly the 18th century or very many places in the 19th century? I think different judges are going to see those issues differently. And we're going to have quite a patchwork of Second Amendment jurisprudence.
Beth Wiggins
Thank you both for lending your great expertise in helping us understand this decision, and I look forward to talking with you about it more in the future.
Tara Grove
Thank you.
YouTube Video Link: https://www.youtube.com/watch?v=iN4ir5RVu1c
Credit: United States Courts