On June 23, 2022, the United States Supreme Court came out with guns blazing in its first Second Amendment decision in nearly fifteen years. In New York State Rifle & Pistol Ass’n v. Bruen, the Court struck down a New York state law that required individuals to demonstrate a “special cause” to obtain a permit to conceal carry a firearm.[1] Critically, the Court reasoned that New York’s law could not withstand judicial scrutiny because the Second Amendment encompasses the right to carry a firearm in public for self-defense. Despite the broad holding, Justice Brett Kavanaugh issued a concurring opinion to “underscore” that the ruling only affects the six states that possessed permitting regimes similar to that of New York.[2] Accordingly, the question remains: is Justice Kavanaugh correct, or will the Court’s decision implicate other state laws related to the use and ownership of firearms?
Standing as the seminal Second Amendment case, the Supreme Court’s decision in District of Columbia v. Heller proved essential to the holding in New York State Rifle. In addressing the Second Amendment for the first time in approximately seventy years, the Supreme Court in 2008 held that the Second Amendment encompasses the right to own a handgun for self-defense within the home.[3] Justice Scalia, in authoring the majority opinion, reached this conclusion by examining the Amendment’s text, as well as the history of gun laws in the United States and England. Consequently, Justice Scalia reasoned that the law at issue, which prohibited the ownership of handguns in the District of Columbia, could not survive any level of judicial scrutiny because it infringed on the core right to self-defense within the home.
Nevertheless, Justice Scalia failed to address whether lower courts should apply Heller’s historical analysis in Second Amendment cases. In the absence of guidance, circuit courts uniformly adopted a two-step framework that proved highly deferential to the judgment of state legislatures.[4] Specifically, the first step evaluated whether a restriction burdened a core right of the Second Amendment by applying Heller’s historical approach. And if the restriction implicated a core right, then courts would proceed to the second step to apply intermediate scrutiny. This generally resulted in courts assuming that a law burdened a core right, but then upholding the law under intermediate scrutiny.[5] Accordingly, the framework effectively rendered Heller as a “one-off” decision that addressed the right to keep a firearm in the home for self-defense.
Despite the consensus among circuit courts, the Supreme Court in New York State Rifle adopted Heller’s framework and expressly rejected the two-step approach as “having one step too many.”[6] Specifically, the Court criticized the approach as too deferential to state legislatures because the “Second Amendment ‘is the very product of an interest balancing by the people,’ and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”[7] More importantly, the decision instructed courts to abide by the framework set forth in Heller, which requires two inquiries when evaluating the constitutionality of a firearm regulation: 1) “whether modern and historical regulations impose a comparable burden on the right of armed self-defense;” and 2) “whether the regulatory burden is comparably justified.”[8]
Therefore, the decision effectively enshrines Heller as the guidepost for Second Amendment jurisprudence. Despite Justice Kavanaugh’s assurance that the ruling merely applies to the permitting regimes of six states, it establishes a framework for Second Amendment challenges that is far less deferential than the previous two-step inquiry. Consequently, pro-firearm plaintiffs across the country will likely seize the opportunity to challenge firearm restrictions under the Heller framework.
The implications of NY State Rifle will loom especially large in Rhode Island, which recently implemented its most significant firearm restrictions in decades. In June 2022, the State increased the age for purchasing a firearm to twenty-one-years old, as well as enacted a ten-round limit on firearm magazines.[9] While these restrictions would have almost certainly survived the two-step inquiry, it remains unclear whether they will suffer the same fate as New York’s licensing statute. Nonetheless, one thing is for certain – the holding in New York State Rifle will have a profound impact on gun restrictions for years to come.
[1] 142 S. Ct. 2111, 2122 (2022).
[2] Id. at 2161 (Kavanaugh, J., concurring).
[3] 554 U.S. 570, 636 (2008).
[4] See, e.g., United States v. Chovan, 735 F.3d 1127, 1136–37 (9th Cir. 2013).
[5] See, e.g., Pena v. Lindley, 898 F.3d 969, 989–90 (9th Cir. 2018).
[6] 142 U.S. at 2117
[7] Id. at 2118 (quoting Heller, 554 U.S. at 635).
[8] Id.
[9] Katherine Gregg, McKee signs 3 gun-control bills into law, including high-capacity magazine ban, Providence Journal (June 21, 2022), https://www.providencejournal.com/story/news/politics/2022/06/21/ri-gun-control-bills-high-capacity-magazine-ban-signed-into-law/7687126001/.
