Justice Clarence Thomas has played and won the long game. His opinion for a 6-3 Supreme Court majority in New York State Rifle & Pistol Association v. Bruen vindicates the right of citizens to carry handguns for lawful protection. That decision will directly affect three states where the right was entirely denied: New Jersey, Maryland, and Hawaii. It will also affect three other states where the right to bear arms was already respected by some local jurisdictions but denied by others: Massachusetts, New York, and California.
Perhaps even more importantly, Bruen announces a judicial standard of review that applies to all gun control laws throughout the United States. Such laws that are consistent with the history and tradition of the American right to keep and bear arms are constitutional; those that are inconsistent with history and tradition are not.
One week after the Bruen opinion was released, the court vacated decisions from federal appeals courts that had upheld bans on common rifles or magazines in Maryland, California, and New Jersey. It remanded the cases to the lower courts and told them to reconsider their decisions in light of Bruen’s history and tradition rule.
The path to Justice Thomas’s magnificent opinion in Bruen began 25 years ago, in the 1997 case Printz v. United States. Back in 1993, Congress had enacted a statute ordering local law enforcement officials to carry out background checks on handgun buyers. Sheriffs around the nation sued, arguing that Congress had no power to dragoon local officials into enforcing congressional statutes. If Congress wanted background checks, it could hire federal employees to conduct the checks.
By 5-4, the Supreme Court agreed, with Justice Thomas joining Justice Antonin Scalia’s majority opinion. While Printz was about federalism, not the Second Amendment, Justice Thomas wrote a concurring opinion expressing doubt that the 1993 statute was compliant with the Second Amendment.
But the Supreme Court had not decided a major Second Amendment case since 1939, when it upheld a federal tax and registration system for sawed-off shotguns. Justice Thomas hoped that the court would again address the Second Amendment. Quoting one of the greatest justices of the 19th century, he wrote: “Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’”
Eleven years later, the court did so. Justice Scalia’s 5-4 opinion in District of Columbia v. Heller quoted Justice Story and held that the District of Columbia’s handgun ban violated the Second Amendment.
Then, in 2010, the court ruled in McDonald v. City of Chicago that the 14th Amendment makes the Second Amendment enforceable against state and local governments, just as are most other provisions of the Bill of Rights. Here, Justice Samuel Alito’s plurality opinion for the court relied on precedents from the 1890s onward that “incorporate” items in the Bill of Rights into the 14th Amendment via the clause “Nor shall any state deprive any person of life, liberty, or property, without due process of law.”
Ever the originalist, Justice Thomas agreed with the result, but concurred to explain that the 14th Amendment clause that did the work was “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
There was no serious dispute that Justice Thomas was right about the original meaning of the 14th Amendment when it was ratified in 1868. As Justice Thomas showed in detail, depriving black people of the right to keep and bear arms was integral to white supremacy. He quoted Frederick Douglass: “Notwithstanding the provision in the Constitution of the United States, that the right to keep and bear arms shall not be abridged, the black man has never had the right either to keep or bear arms.” Until a constitutional amendment made the right to arms enforceable against the states, “the work of the Abolitionists is not finished.”
After a good start in Heller and McDonald, the Supreme Court entered a period of torpor. Some lower-court judges, such as then-Judge Brett Kavanaugh of the D.C. Circuit, observed that the Heller decision had been based on text, history, and tradition. He argued that lower courts should follow the same methodology.
But he was in the minority. Most of the lower federal courts adopted the test that Justice Stephen Breyer had proposed in his dissent in Heller, and that had specifically been repudiated by the Heller majority. Under this approach, judges engage in interest-balancing; they decide for themselves if an infringement on traditional Second Amendment rights is acceptable. Although the “Breyer test” would have been accurate, the lower courts instead called it the “Two-part test.”
Some lower courts tried to apply the test conscientiously, but many others set things up so the government would always win. In some courts, all the government needed to do was introduce some evidence in favor of a gun control law. The fact that the government’s evidence was refuted by evidence from the other side was irrelevant. The 2nd Circuit (New York, Vermont, Connecticut) and the 9th Circuit (all Pacific states, all states one step eastward, and Montana) were particularly egregious.
Law professor Allen Rostron accurately called the lower courts’ behavior “Justice Breyer’s Triumph in the Third Battle over the Second Amendment.” Meanwhile, the Supreme Court stood idle. Every year, petitions for certiorari were filed, pointing out how the lower courts were violating Heller and McDonald. But the petitions were never granted, and the lower courts took the cert denials as a signal to become ever more aggressive in ruling against the Second Amendment.
Justice Thomas, sometimes joined by Justices Alito, Neil Gorsuch, or Kavanaugh, dissented five times from the cert denials. But the majority of the Supreme Court acted in only two cases after McDonald. Within hours of the McDonald decision, the court vacated a 2nd Circuit decision upholding a ban on nunchakus. And in 2016, the court vacated a Massachusetts case upholding a ban on electric stun guns.
By 2020, the situation appeared bleak. The court had granted certiorari in a case challenging a New York City rule that licensed handgun owners in the city could not take their handguns out of the city. Not to a nearby range in New Jersey, nor even to a second home in New York state. The 2nd Circuit Court of Appeals had upheld the ban and claimed that it did not involve the Second Amendment. Or even if the Second Amendment were implicated, the infringement was trivial. The 2nd Circuit said that the police department’s worries about “road rage” were sufficient to uphold the law, even though the department could not point to a single instance of misconduct by a New York City licensee transporting a handgun.
When the Supreme Court granted certiorari, the New York City and state governments partially re-legalized transport outside the city, giving the plaintiffs some but not all of the relief they had sought. Five Democratic senators — Sheldon Whitehouse (RI), Mazie Hirono (HI), Richard Blumenthal (CN), Richard Durbin (IL), and Kirsten Gillibrand (NY) — sent the court a threatening letter in the form of an amicus brief. They warned that unless the Supreme Court dismissed the case as moot, they would “restructure” the court.
For whatever reason, six justices complied, while Justices Alito, Gorsuch, and Thomas dissented. The same day, the Supreme Court dismissed all pending Second Amendment cert petitions. According to CNN, Chief Justice John Roberts had warned his pro-civil rights colleagues that if they took up any of the gun cases, he might not vote on their side.
One dismissal, in Rogers v. Grewal, challenged New Jersey’s near-total ban on handgun carry permits. Justices Thomas and Kavanaugh dissented from the denial, and Justice Thomas wrote a lengthy analysis explaining why the right to “bear arms” includes the right to carry a defensive arm outside the home.
As persuasive as Justice Thomas’s dissent was, he was writing for himself, not for a majority of the court. Perhaps the court was going to return to the decades of judicial neglect that had characterized the years between 1939 and 2008.
The replacement of Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett changed everything. On the 7th Circuit Court of Appeals, Judge Barrett had written a 37-page dissent in Kanter v. Barr, in which the other two judges had upheld a lifetime ban on gun possession for a man who had been convicted of mail fraud for selling shoe pad inserts that were too thin. In Judge Barrett’s view, the history and tradition of the Second Amendment did not allow a lifetime gun ban for conviction of a nonviolent felony.
Now, without needing the vote of Chief Justice Roberts, there were five justices who appeared ready to stop allowing the Second Amendment to be treated as a second-class right.
Soon, the court granted certiorari in New York State Rifle & Pistol Association v. Bruen. Under New York law, an applicant for a carry permit must have “a proper cause.” In some counties, permits were issued reasonably, with lawful self-defense being considered a proper cause. But in others, applicants were denied unless they could prove they were at some special risk, distinct from the general public.
In an opinion for six justices, including Chief Justice Roberts, Justice Thomas explained that the right of “the people” to “bear arms” could not be limited to just a select few who could prove they are special. The right belongs to all law-abiding adults.
Justice Thomas’s opinion was based on the constitutional text. It would be absurd to read “bear arms” as only applying to carrying a gun when ordered to do so by the government (as in militia service) or only in one’s home. Rejecting the Breyer-derived two-part test, the Bruen majority put the burden of proof on the government. “The government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Justice Thomas explained that some gun controls can be justified based on historical tradition. For example, in the 18th and 19th centuries, some states or colonies had banned gun-carrying in legislative assemblies, polling places, and courthouses, and apparently, nobody had raised objections that these restrictions violated the right to bear arms. So today, “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” But analogies about “sensitive places” could not go crazy and ban gun-carrying in cities, he wrote.
Another permissible restriction, based on historical tradition after 1791, is that states can regulate the manner of carrying firearms. In the 19th century, a number of states outlawed concealed carry. These statutes were upheld only because open carry was still allowed.
This does not mean that states must allow open carry and ban concealed carry. The Bruen opinion appears to leave states with the choice, and today, social norms in many areas favor concealed carry over open carry.
The Bruen opinion affirmed the constitutionality of laws for permits to carry a concealed handgun, provided the permit laws do not require applicants “to show an atypical need for armed self-defense.” The licenses must be based on “narrow, objective, and definite standards” and may not have “lengthy wait times” or “exorbitant fees.”
As the Bruen opinion acknowledged, a few jurisdictions, such as Texas after the Civil War and New Mexico in the territorial period before the adoption of a state constitution, sharply restricted handgun carrying. But examples of “a few late-19th-century outlier jurisdictions” were insufficient to prove that bearing arms for lawful defense was outside the American historical tradition. Twentieth-century restrictions, such as the 1911 New York state statute that was at issue in Bruen, came far too late to show a historical tradition that could override the Second Amendment’s text.
Bruen’s rules about how to use text, history, and tradition have major implications beyond handgun carrying. According to Bruen, a few isolated statutes are insufficient to create a historical tradition authorizing a particular type of gun control. Thus, the constitutionality of bans on common firearms or magazines is in serious doubt — as the court indicated by vacating and remanding cases that had upheld such bans.
As in the years following Brown v. Board of Education, some jurisdictions will do all they can to evade the law of the land. While Massachusetts, New Jersey, and Maryland appear to be complying with Bruen, New York Gov. Kathy Hochul persuaded the state legislature to enact an onerous licensing process, including requiring applicants to allow the government to rummage through all their social media for the past three years. Carrying a licensed handgun into almost any building in the state of New York is now a felony, unless the building owner has posted a sign allowing carry or has otherwise granted express permission. California appears to be moving in the same direction.
Constitutional law aside, such onerous restrictions are unnecessary. Decades of data from other states show that licensed carriers are vastly more law-abiding than the general public. The rate of gun misuse by persons engaged in licensed carry is minuscule.
In response to a reporter’s question if Hochul had any data to support her claim that licensed carry will endanger millions of New Yorkers, she fired back, “I don’t need to have numbers,” and “I don’t need to have a data point to say this.”
There is still much to be done before all law-abiding Americans can exercise their right to bear arms. For now, at least, there is a solid Supreme Court majority that appears ready to enforce the Second Amendment just as vigorously as the rest of the Bill of Rights.
David Kopel is research director of the
Independence Institute
and adjunct professor of advanced constitutional law at Denver University’s Sturm College of Law.
