On April 26, the Supreme Court agreed to hear a challenge to New York State’s concealed carry laws. New York State Rifle & Pistol Association (NYSRPA) v. Bruen seeks to overturn a policy that requires people applying for handgun licenses to demonstrate that they have a pressing need to carry firearms in public. A ruling could affect similar laws in six other states, including California, Massachusetts, and New Jersey.
The high court has been virtually silent on gun rights since 2008’s District of Columbia v. Heller, which established that the Second Amendment includes the right to bear arms in the home. And it has never settled the question of whether that right extends to the public sphere, reportedly because there weren’t enough conservative justices willing to take up another Second Amendment case. NYSRPA v. Bruen, which will be heard this fall, could be the first indication that the addition of three Trump justices will herald a new era in Second Amendment jurisprudence.
To help us understand exactly what NYSRPA v. Bruen could mean for the nation’s gun laws, we spoke to several legal experts. Here’s everything you need to know.
What is the case about?
Like many states, New York requires gun owners to get a license to carry a firearm in public. But it sets a high bar, requiring that an applicant must demonstrate “proper cause” to receive a license. State law does not spell out what “proper cause” means — but a state appeals court defined it as a heightened need for self-protection in one’s community or in the course of one’s work.
In 2015, Rensselaer County resident Robert Nash was granted a pistol permit that allowed him to carry a concealed gun for hunting only. The following year, citing a string of robberies in his neighborhood, he asked the local issuing authority, a state supreme court judge, to remove the permit’s limitations and allow him to carry a gun for personal protection. Nash’s request was denied on the grounds that he didn’t demonstrate proper cause, specifically a “special need” for self-defense.
In 2018, Nash sued to overturn the “proper cause” requirement on the grounds that it violates the Second and 14th Amendments. He was joined in the suit by NYSRPA and Brandon Koch, another Rensselaer County resident who was denied a permit.
Who are the plaintiffs?
The New York State Rifle & Pistol Association is the state affiliate of the National Rifle Association. The group has brought several notable suits in the last decade.
In 2013, NYSRPA brought a challenge to New York’s SAFE Act, a slate of reforms implemented in response to the Sandy Hook Elementary School shooting in Newtown, Connecticut, which included a ban on assault weapons and high-capacity magazines that hold more than 10 rounds. A federal appeals court upheld the core of the law, but ruled that the magazine limit was unconstitutional.
In 2019, SCOTUS took up NYSRPA’s challenge to a New York City restriction that prevented gun owners from taking their firearms outside of the city without a special permit. Prior to oral arguments, the city, fearful of a ruling that could have national implications, struck the provision. SCOTUS agreed to hear the case anyway, but ultimately dismissed it as moot.
How are the constitutional questions in this case different than the ones in Heller?
With D.C. v. Heller, the Supreme Court said that Americans have a constitutional right to have guns in their homes, and that the core right in the Second Amendment is to keep firearms for self defense. Two years later, SCOTUS ruled in McDonald v. Chicago that the D.C. decision also applied to the states.
Left unanswered by Heller and McDonald was whether the Second Amendment protects the right to carry a gun outside the home. Appeals courts have been divided on this question. The “proper cause” requirement at the heart of NYSRPA v. Bruen was most recently upheld in March, when the Ninth Circuit Court of Appeals ruled that Hawaii’s rule that an applicant make an “exceptional case” for a gun carry license was constitutional. Writing for the court, Judge Jay Bybee, a George W. Bush appointee, said it had reviewed “more than 700 years of English and American legal history” and concluded that the government “has the power to regulate arms in the public square.”
The First, Second, Third, and Fourth Circuits have also upheld “good cause” requirements for the public carry of concealed guns, while the D.C. Circuit has struck them down. In the latter case, Washington, D.C., was forced to scrap its “proper cause” requirement and abandon its strict handgun permitting rules.
The plaintiffs contend that their case is the logical progression of Heller and McDonald. Legal experts agree. “This is one of the great questions: Does the Second Amendment extend outside the home, and if so, what kind of permitting is allowed for concealed carry?” Adam Winkler, a law professor at the University of California, Los Angeles, tells The Trace.
What are the possible outcomes?
If the justices strike down New York’s “proper cause” requirement, they could keep their ruling narrow by telling the state to rewrite its gun permitting rules and directing the circuit courts to reexamine the issue. Another possibility is that SCOTUS could decide that a discretionary, “may issue” permitting system is altogether unconstitutional, compelling the eight “may issue” states to switch to a “shall issue” system in which permits are automatically granted as long as certain requirements are met. And in the broadest possible ruling, the justices could completely rewrite the methodology that federal courts use when deciding Second Amendment cases.
The last possibility would mark a dramatic shift. Since Heller, the lower courts have applied a two-pronged approach to deciding gun cases, said Eric Ruben, a professor at Southern Methodist University’s Dedman School of Law. First, they decide whether the Second Amendment applies to the case. If so, courts then consider whether the contested regulation furthers the government’s interest, for instance, in reducing crime.
A broad ruling “would say that modern-day gun problems are irrelevant when trying to decide whether or not a law is constitutional,” Ruben tells The Trace. Instead, the justices would direct lower courts to consider only whether the law “is consistent with our history and tradition in America,” an originalist approach that is favored by most of SCOTUS’s conservative justices.
Of course, the court could uphold New York’s “proper cause” requirement, which means that the six other states with such a requirement could keep it on the books. That outcome is unlikely, given the court’s conservative supermajority. But Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School, told The Reload: “Gun-rights advocates should not count their chickens yet. Challengers will need five of the six conservatives to win. There are several ways this case could go against the challengers.”
How will a ruling in this case affect the other “may issue” states?
If New York’s “proper cause” requirement is scrapped, it could “doom” public carry regimes in other states that require applicants to demonstrate a justifiable need, Ruben said. But Second Amendment scholars don’t expect them to go down without a fight. Winkler predicts the states will attempt to interpret the Supreme Court’s opinion “as narrowly as humanly possible.”
“Most of the states are not going to simply just say, ‘The Supreme Court struck down a similar law, let’s just give up on our concealed carry policies,” he said. “So they’re going to force people to file lawsuits. I imagine those states are likely to fight until the bitter end.”
How would a ruling affect New York City’s strict permitting regime?
“A ruling on New York State’s law would also bind New York City,” said Jake Charles, executive director of the Duke Center for Firearms Law. “So if the Court said the government may not condition a carry license on a showing of heightened need, then New York City would also be unable to enforce such a restriction.”
The New York Police Department, which issues handgun permits to city residents, goes far beyond requiring gun permit holders to show “proper cause.” The department’s gun licensing unit requires applicants to furnish photographs and fingerprints; provide the names of employers and domestic partners; submit business records; and even designate someone to take custody of their weapon in the event of their death. The city has long credited its strict gun laws with keeping its homicide rate lower than that of most other big cities.
Being forced to relax those laws would be a rude awakening for city officials. New York City Police Commissioner Dermot Shea is a supporter of gun control, and has called on Congress to pass stronger laws. When asked how the department would alter its permitting process if the “proper cause” requirement is struck, an NYPD spokesperson forwarded a statement issued by Shea last month: “Adding more guns to our streets is not the answer to reducing violence. The NYPD should continue to be able to set and regulate the conditions that must be met to legally carry a loaded firearm in our streets.”
The NYPD would not reveal how many New York City residents currently have permits to carry handguns. But data analyzed by The Daily News in May suggests that the total is in the thousands. Given the rates of concealed gun carry in “shall issue” states, Winkler says, that number could balloon to “hundreds of thousands” if the NYPD is forced to revise its laws. Governor Andrew Cuomo, who vowed to fight the case should SCOTUS rule against New York, rejected the idea of guns being toted around the five boroughs. “The streets of New York are not the O.K. Corral, and the NRA’s dream of a society where everyone is terrified of each other and armed to the teeth is abhorrent to our values,” he said in a statement.
The NYPD could theoretically ignore an unfavorable ruling and keep its permitting system as-is. But experts say that would be risky. “It opens you up to a lot of civil litigation, because you face serious damages if you violate people’s constitutional rights,” Winkler said.
Have other cities been forced to scrap their “proper cause” requirement?
Yes. In 2017, an appeals court struck down Washington, D.C.’s “justifiable need” requirement. At that point, only 123 people had concealed carry licenses in the District. Since then, more than 4,000 people have obtained them. Some local lawmakers are concerned that the proliferation of guns could make it harder for police to discern whether someone is carrying illegally. But last year, then-Police Chief Peter Newsham told The Washington Post that the jump in legally registered firearms hasn’t been tied to a rise in gun violence.
Winkler says Washington, D.C.’s experience could be a model for how New York City responds if it’s forced to scuttle its permit regulations. After Heller, the District “enacted a whole bunch of new reforms that made it very difficult to carry weapons,” he said — though many of them are now being challenged in court. Similarly, NYSRPA v. Bruen, he said, “could be only the first battle in a longer war between New York and the Supreme Court over New York’s restrictive gun laws.”
Why hasn’t the court taken a Second Amendment case in so long?
The Supreme Court last decided a gun case in 2010, when it ruled that residents of all 50 states had the right to own guns for self-defense. As recently as last year, the court declined to take up a challenge to New Jersey’s “justifiable need” requirement. But that was before the ascension of Justice Amy Coney Barrett, a Trump appointee who gave the court its 6-3 conservative majority. “This case was taken by the Supreme Court because of the addition of the Trump justices: [Neil] Gorsuch, [Brett] Kavanaugh, and Barrett,” Winkler said. “They have changed the calculus on the court.”
—
Correction: An earlier version of this story misstated the estimated number of concealed carry permits issued to New York City residents.
