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New York State Rifle and Pistol Association v. Bruen



The Supreme Court recently granted certiorari in an important Second Amendment case, New York State Rifle and Pistol Association v. Bruen (“NYSRPA II”). NYSRPA II challenges the constitutionality of a New York law that requires applicants for a permit to carry a concealed handgun in public to show “proper cause”—generally speaking, a bona fide need for self-defense. (New York law generally prohibits the open carrying of handguns in public.) The outcome of NYSRPA II will be crucial for gun-violence prevention. Not only is New York’s concealed-carry law itself an important public-safety provision, but the Court’s decision is likely to instruct the state and lower federal courts on how to decide the constitutionality of other laws challenged under the Second Amendment—including common-sense measures like background checks on all gun sales, prohibitions on assault weapons and large-capacity magazines, and red-flag laws. Currently, courts apply a two-part framework in Second Amendment cases, considering not only the Amendment’s scope as historically understood, but also the government’s interest in public safety and the effectiveness of the challenged law. Opponents of gun-violence-prevention measures argue, to the contrary, that only “text, history, and tradition” should be relevant—language that originated in a dissenting opinion by then-Judge Kavanaugh. Defending New York’s concealed-carry law and the two-part framework is essential for the viability of regulations necessary to protect public safety.


The New York State Rifle and Pistol Association (“NYSRPA”), the lead plaintiff in NYSRPA II, is the NRA’s New York state affiliate.1The lead Respondent is the Superintendent of New York State Police. The case was initially styled NYSRPA v. Corlett (and was previously NYSRPA v. Beach in lower courts), but it is now NYSRPA v. Bruen in light of the appointment of a new Superintendent. NYSRPA challenged New York’s law alongside two individuals who were denied unrestricted permits to carry concealed handguns in public. As noted, New York’s law allows issuance of unrestricted permits only upon a showing of “proper cause.” The licensing officer for Rensselaer County (near Albany) concluded that both individual plaintiffs had failed to make that showing and instead issued them restricted-carry permits, largely limited to carry in unpopulated areas. (Both can also possess handguns on their own premises and can carry certain long guns—which are not subject to New York’s carry permitting law—in public.) The lower-court decisions on plaintiffs’ challenge were relatively straightforward, because the U.S. Court of Appeals for the Second Circuit had already upheld New York’s law against a Second Amendment challenge in 2012, in a decision the Supreme Court declined to review.

Laws similar to New York’s exist in California, Massachusetts, New Jersey, Maryland, and Hawaii. The First, Third, Fourth, and Ninth Circuits have upheld those laws (although additional challenges remain pending). A divided panel of the D.C. Circuit struck down a somewhat similar law in 2017.2Delaware and Rhode Island also have similar carry laws. There are no decisions on the constitutionality of those laws under the Second Amendment. Despite that arguable circuit conflict, when petitions challenging the First, Third, and Fourth Circuit’s decisions reached the Supreme Court in June 2020—when Justice Ginsburg was still on the Court—it again declined review.

Key Issues

1. The Constitutionality of New York’s Public Carry Licensing Law: New York is not the only state with a “proper cause” or “good cause” licensing regime for the public carry of firearms, and most of the states that have such laws are disproportionately large—together, they account for approximately 25% of the U.S. population. For those tens of millions of people, good-cause laws play an important role in protecting public safety. Researchers have found that States with more stringent public-carry restrictions “experience significantly lower rates of gun-related homicides and other violent crimes.” Gould v. Morgan, 907 F.3d 659, 675 (1st Cir. 2018), cert. denied, 141 S. Ct. 108 (2020).3See, e.g., John J. Donohue et al., Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Controls Analysis, 16 J. Empirical Legal Stud. 198 (2019); Cassandra K. Crifasi et al., Association Between Firearm Laws and Homicide in Urban Counties, 95 J. Urb. Health 383 (2018); Michael Siegel, et al., Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United States, 107 Am. J. Pub. Health 1923 (2017).

2. The Two-Part Framework: Since 2008, when the Supreme Court first held that the Second Amendment protects an individual right, courts across the country have adopted a two-part framework for deciding Second Amendment cases. Under this framework, a court first asks whether the challenged law falls within the scope of the Second Amendment as historically understood.  This analysis looks in particular to whether laws like the challenged regulation are “longstanding.” If so, the law falls outside the Second Amendment’s scope, and it is constitutional. If a law falls within the Amendment’s scope, the court moves to the second part of the inquiry, and applies means-end scrutiny—in almost all cases, intermediate scrutiny, asking whether the challenged law adequately advances an important government interest. At this step, the court can take into account the law’s effectiveness in reducing gun violence or promoting other public interests.

An alternative approach, advanced by the gun lobby and endorsed in dissenting opinions in several circuits, would instead ask only whether “text, history, and tradition” support the challenged regulation. This is a dangerous approach that would appear to give no weight at all to public safety. Among other serious problems, it could call into serious question more modern forms of firearms regulation like red-flag laws, domestic-violence prohibitors, and prohibitions on ghost guns. In short, an adverse decision in NYSRPA II could thwart the ability of federal, state, and local governments to enact meaningful gun-violence-prevention measures for decades to come.

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