In a 6-3 decision, the United States Supreme Court in, New York State Rifle & Pistol Association, Inc., et al., v. Bruen,[1] determined that the State of New York’s requirement that applicants for concealed carry weapons permits must establish “proper cause” for issuance of the permit was unconstitutional under the Second and Fourteenth Amendments because historical analogs for such a requirement did not exist. In doing so, the Court also struck down the two-step process employed by the Courts of Appeals in analyzing Second Amendment claims since District of Columbia v. Heller,[2] noting that it “was one step to many.”
Background
The Court initially examined New York’s laws and licensing requirements for the issuance of a Carrying a Concealed Weapon Permit (“CCW”). It is a crime in New York to possess “any firearm” without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. Possessing a loaded firearm outside one’s home or place of business without a license is a felony. New York law further provides that a license applicant who wants to possess a firearm at home (or in his place of business) must convince a “licensing officer”—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that “no good cause exists for the denial of the license.”
If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” To secure that license, the applicant must prove that “proper cause exists” to issue it. If an applicant cannot make that showing, he can receive only a “restricted” license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment. The Court noted that, “[n]o New York statute defines ‘proper cause. But New York courts have held that an applicant shows proper cause only if he can demonstrate a special need for self-protection distinguishable from that of the general community.’” The Court further observed that the “‘special need’ standard is demanding. For example, living or working in an area ‘noted for criminal activity’ does not suffice.”
The petitioners were law-abiding citizens of New York who applied for, and were denied, unrestricted licenses to have and carry a concealed handgun outside their homes for self-defense purposes. The petitioners challenged the denial of the licenses on Second and Fourteenth Amendment grounds. The District Court dismissed their complaint and the Court of Appeals affirmed.
Discussion
The United States Supreme Court accepted the case for review. Justice Thomas delivered the opinion of the majority. The Court first observed that “New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are ‘shall issue’ jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.” Among the “may issue” states, are California.[3]
Justice Thomas stated, “In Heller and [McDonald v. Chicago, 561 U. S. 742 (2010)], we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).” (Emphasis added.)
Justice Thomas further noted, “Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, 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.”
In analyzing the holdings of Heller and McDonald, Justice Thomas observed, “Moreover, Heller and McDonald expressly rejected the application of any ‘judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”’ Heller, 554 U. S., at 634 (quoting id., at 689–690 (BREYER, J., dissenting)); see also McDonald, 561 U. S., at 790–791 (plurality opinion) (the Second Amendment does not permit—let alone require—‘judges to assess the costs and benefits of firearms restrictions’ under means-end scrutiny). We declined to engage in means-end scrutiny because ‘[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.’ Heller, 554 U. S., at 634. We then concluded: ‘A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.’ Ibid.”
Justice Thomas concluded his analysis on this issue by stating, “We reiterate that the standard for applying the Second Amendment is as follows: 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.” He further noted, “The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”
The Court stated, “Consider, for example, Heller’s discussion of ‘longstanding’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.’ 554 S., at 626.” Justice Thomas observed that, “We therefore can assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment. And 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.” As such, it appears that states can continue to regulate the carrying of weapons in “sensitive places.” However, the Court declined to provide an exhaustive list of such places. These determinations will need to be made on a case-by-case basis.
In applying this historical analysis test to determine whether the Second Amendment protected the carrying of weapons outside the home for self-defense purposes, the Court stated, “We therefore turn to whether the plain text of the Second Amendment protects [petitioners’] proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does.” The Court further discerned, “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.”
After engaging in an exhaustive historical analysis of the scope of prior protections and prohibitions concerning the carrying of weapons outside the home for protection, the Court stated, “At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement.” Accordingly, the Court held, “New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.” (Emphasis added.)
Justice Alito authored a concurring opinion addressing the comments by the dissent. He noted, “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561 U. S. 742 (2010), about restrictions that may be imposed on the possession or carrying of guns.” In addressing some of the arguments made by the dissent, Justice Alito observed, “Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post, at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.”
Justice Alito further stated, “And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.” Justice Alito concluded by noting, “I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.”
Justice Kavanaugh also authored a concurring opinion, wherein he emphasized two major points, “First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.” (Emphasis in the original.) In further elaborating on this issue, Justice Kavanaugh noted, “New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.”
In providing some critical guidance on the scope and application of the Bruen decision, Justice Kavanaugh observed, “Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.”
Justice Kavanaugh further reiterated, “Second, as Heller and McDonald established and the Court today again explains, the Second Amendment ‘is neither a regulatory straight jacket nor a regulatory blank check.’ Ante, at 21. Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations. Heller, 554 U. S., at 636.” He then quoted portions of the Heller opinion, stating, “´[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’”
Justice Breyer, with whom Justice Sotomayor and Justice Kagan join, authored a dissenting opinion. The dissent focused on statistics concerning mass shootings and gun violence, all of which were addressed by the majority opinion and the concurring opinions.
HOW THIS AFFECTS YOUR AGENCY
Based upon the Supreme Court’s decision in Bruen, it is fairly clear that California’s “good cause” requirement set forth in Penal Code sections 26150 and 26202 for the issuance of a CCW is unconstitutional. Agencies may wish to consider revising their policies concerning issuance of CCWs to delete this provision. It is the author’s understanding that Lexipol, upon which many agencies rely for policies, will be revising its policies soon to address this issue. In the interim, agencies may wish to refrain from requiring applicants to establish good cause in the intervening period before they are able to update their formal promulgated policies.
However, the Bruen decision indicates that states may continue to apply restrictions prohibiting certain persons from obtaining a CCW, including prohibitions on the possession of firearms by felons and the mentally ill. In addition, laws prohibiting carrying firearms in “sensitive places” appear to be permissible. In addition, it appears that permissible qualifications would also include training and safety classes, such as those set forth in Penal Code section 26165. Finally, it appears that background checks to determine an applicant’s suitability for a CCW would also be permissible in order to determine whether the applicant is a prohibited person, felon, etc. See, Bruen, p. *102, endnote 9.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] New York State Rifle &Amp v. Bruen, Superintendent of N.Y. State Police, 2022 U.S. LEXIS 3055.
[2] 554 U. S. 570 (2008).
[3] See Cal. Penal Code Ann. §26150.