The SCOTUS decision in NYSRPA v. Bruen is going to send shockwaves through Congress and the state legislatures around the country. Most gun policy wonks had expected the Court to clarify the balancing test Courts of Appeal could use when determining whether gun law restrictions were constitutional or not. Instead, the Court announced an entirely separate analysis that must be used for 2A cases. Specifically, the Court found:
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 then struck down New York’s “may-issue” licensing scheme for issuing concealed carry permits, finding the law ” prevents law-abiding citizens with ordinary self-defense needs from exercising their right
to keep and bear arms.”
The implications of this decision are wide-reaching. First, it’s safe to say that blanket may-issue laws are now unconstitutional. However, the Court was also clear that laws such as prohibiting firearms in schools and bars are likely to survive as these have historical precedent. In other words, you may be able to get a permit to carry, but the government will still be able to put some restrictions on where, based on reasonable historical interpretations of such restrictions.
But what about other laws? The list of what could be erased is, frankly, mind-boggling. First, laws such as state-specific restrictions on having NFA items are a likely candidate for being struck down, although the NFA seems likely to survive. Likewise, California’s inane handgun roster will likely go by the wayside. The Court also specifically called out numerous types of laws that are not likely to survive. These include waiting periods for firearms purchases and exorbitant licensing fees.
On the flip side, we expect numerous types of laws to survive. Do not expect to see Red Flag laws disappear, and we would expect the Lautenberg Amendment and similar to be kept in place. Background checks such as NICS will be allowed to continue, and rules regarding FFL licensing as well, as could education requirements, as the court found these go to determining whether one is a law-abiding and responsible citizen. In short, the new bill coming out of the Senate likely would survive under this new framework, while the bills passed by the House would not.
There are some areas that also remain unclear. Magazine bans for example are murkier as the arguments have to depend on historical precedent around firearms and magazines, in the context of many of these laws, are fairly modern. Likewise, we would expect there to be a hard-fought battle over AWBs as there are arguments on both sides regarding the history and use of such firearms and whether such bans impact the right of self-defense at all. This is especially true as in dicta (essentially language in the case that explains the holding but is not part of it), the Court suggested that this case applies to laws regarding citizens’ rights to carry handguns for self-defense, possibly opening the door to different interpretations for rifles. Regardless, the justifications used for upholding these restrictions by previous Courts of Appeal decisions are now improper and all such restrictions will have to be reexamined through the new framework set forth today.
The decision is 134 pages long and we have not fully digested it yet, so expect to see more on this in the coming days. However, the seismic change this decision will have in the 2A world cannot be understated.