Photo by Bermix Studiovia via Unsplash
In 2017, I was waiting for the southbound 1-train in uptown Manhattan when the hundred-something other commuters in the station started rushing toward the exit. I immediately joined the herd, my backpack thrown onto the tracks and my friends who’d been with me moments earlier, out of sight. Every few seconds, a muffled “boom” was audible behind the havoc, and I assumed without hesitation it was the sound of gunshots. It’s really happening, I thought. I later learned the explosions were caused by fires on the train tracks—an ode to the city’s direly deteriorating infrastructure. My immediate and genuine belief that every step I took toward the exit sign would be my last—an ode to the uniquely American expectation that chaos must mean someone is shooting a machine gun.
Five years later, I was sitting in Washington Square Park, basking in the palpable summer heat and sense of community when masses of park-goers started running for their lives. I could only hear banging, screaming, and a voice inside my head saying I’ve done this before. There I was, one fawn packed into a stampede of thousands running through the streets of the West Village. The crowd trampled me, sandwiching my spine between the grainy pavement and the imprint of a stranger’s sneaker. It was hours, multiple locations, and multiple fruitless conversations with first responders later that I finally found safety. There was no shooting that day, either. Earlier in the day, a bicyclist flashed a gun near the park. Fireworks set off that evening incited the panic that followed.
The media coverage of these incidents was non-existent. The former was never reported, and the latter was mostly publicized through Tiktoks recorded during the stampede and individuals’ retroactive narrations of the day. In a country where actual mass shootings fall through the cracks of the news cycle because of their frequency, it’s unsurprising that false alarms don’t even get an honorable mention. The result of fireworks in a crowded American park is a violent stampede. I’ve never been in a mass shooting. Yet, like many other Americans, I live in fear of the day I might be.
But in New York City, of all places?
The answer in short lies in the fact that despite discrepancies in legislature and policy, the dread that accompanies gun activity in America does not discriminate across state lines. And if it ever did remain outside the confines of New York, the same is certainly not true after 2022.
An individual in New York State can own a firearm and keep that firearm at home if they acquire a license. Until 2022, a gun owner needed to pass an additional level of screening to “carry” that firearm outside their home. This heightened level of scrutiny, known as the “proper cause” standard, required that individuals seeking to carry a firearm outside the premises of their residence showcase a “special need for self-protection.”1 To meet the “proper cause” standard for a pistol-carrying permit, an individual had to show a need for protection exceeding that of their general community.2 Because this standard furthered a critical government interest in public safety and crime prevention, it was deemed a justified bookend on the reach of the Second Amendment by New York State’s legislature.3
On June 23, 2022, the Supreme Court’s decision in New York Rifle and Pistol, Inc. v. Bruen declared that the superseding governmental interest is freedom—for firearms.4 The litigation arose from two gun owners in New York who contested the requirement that they show “proper cause” to legally carry their firearms outside their homes.5 They argued the “proper cause” standard violated the Second Amendment, under which carrying one’s firearm was a right guaranteed to all, not a privilege to be earned by some.6 This argument made it to the Supreme Court, where the Justices considered the constitutionality of the New York Statute’s “proper cause.”7
Justice Clarence Thomas delivered the Court’s opinion: that the burden of proving “proper cause” required by the New York Statute was unconstitutional.8 Justice Thomas reasoned that regulations requiring an individual to prove why they should engage in certain firearm conduct, rather than presume they are entitled to such conduct, are inconsistent with the historical tradition of the Constitution.9
“Consistent with historical tradition” leaves many questions unanswered. For one, the “history” in question is itself an inconsistent legislative trajectory. As the nature, quantity, and trade of firearms in the United States has transformed, changed regulations have, to some degree, followed. At the ratification of the Second Amendment, there were no regulations on firearms. By the 1800s, there were multiple regulations in place.10 To “curtail” the novel problem of machine gun circulation, President Roosevelt implemented the National Firearms Act in 1934, marking the first national gun control policy in the history of the United States.11 From the 1930s to the 1980s, Congress passed multiple licensing regulations on the purchase of firearms—the first gun control policies of that nature in American history.12 The 1980s saw a loosening of such restrictions and greater liberalization of firearm sales.13 In the decades that followed, there was an unprecedented temporary ban on assault weapons.14 Subsequently, Bush-era legislation re-liberalized firearm commerce.15 It is clear that the “historical tradition”, then, is for a new firearm regulation to be at least somewhat inconsistent with those that predate it, unlike what Justice Thomas suggests in Bruen.16
The Court’s “consistent with tradition” argument masquerades what is really its expansion of the gun policy wave established in Heller.17 The Bruen opinion does not explicitly say that all firearm regulation is unconstitutional. On its face, the opinion suggests that regulations may be constitutional if they do not extrapolate beyond the meaning of the “literal text” of the Second Amendment.18 And although Justice Thomas concedes that the context in which we read the Second Amendment is different today than it was for the founders, its “meaning is fixed.”19 The opinion thus argues that (1) firearm regulations are only constitutional when they maintain historical tradition, (2) historical tradition is to uphold the Second Amendment’s meaning, and (3) that meaning is “fixed” in the face of other societal developments. These stipulations combine to indicate that the only constitutional firearm regulation is no new regulation at all. Underlying the guise of “historical tradition” is what the majority really strives to say: the laws governing society need not change as the American people’s context does.
A poll conducted just three weeks before the Bruen decision found that 70% of Americans supported “the enactment of gun control laws” instead of laws protecting gun ownership rights.20 The rate of concerned Americans is the highest it’s been in a decade.21 Justice Thomas seems to know how anti-democratic the Court’s rationale is when he concedes that the United States “largely” disagrees with his approach.22 He just doesn’t really care.
Importantly, the Bruen decision deals not with legislation limiting gun ownership, but gun carry. What the majority says is not that the Constitution demands a more liberal standard with regards to gun ownership. The issue giving rise to this decision was whether it was unconstitutional to impose an additional standard of scrutiny on gun owners seeking to walk around armed. The Court’s holding was that imposing regulation on an individual gun owner’s ability to carry that gun infringes on the Constitution’s liberality with respect to firearm conduct.23 The effect of Bruen on New York’s legislation is therefore that a gun owner inherently passes the test to become a gun-carrier; there is no “intermediate scrutiny.”24 Even if “intermediate scrutiny” like the old statute’s proper cause requirement furthers a substantial government interest in public safety, Justice Thomas holds that allowing public safety to supersede the text of the Second Amendment is unconstitutional.25
In Heller, Justice Scalia wrote that furthering a governmental interest is unconstitutional on its face if it infringes on the “textual meaning” of the Second Amendment in.26 To even consider whether a limitation on the Second Amendment is justified by the pursuit of other governmental interests is to deviate from “historical tradition”—even if that governmental interest is its citizens’ safety.27 Accordingly, any gun regulation read as encroaching on the Second Amendment ought not to be evaluated at all. Ironically, Justice Scalia partly attributed the inappropriateness of cost-benefit analyzing gun control policies to the fact that doing so would be a “nearly impossibly” convoluted task for members of the bench.28 It is curious then that he, as a member of the bench, feels so comfortable exercising adjudicatory discretion on the matter.
Affirming Heller, Bruen established that gun owners ought to be presumed to have a constitutional right to carry their firearms, unless proven otherwise.29 This effectively reversed the screening scheme embedded in the original New York statute. In light of the ruling, New York’s Legislature revised the statute to reflect a “presumption of [the gun owner’s] entitlement.”30 A new, supposedly “more objective” standard of fitness supplanted the previous “proper cause” requirement.31 Under the new statute, a person may be denied a permit to carry their firearm if they lack “good moral character.”32 The new statute does not require gun owners to meet any burden of showing necessity in order to carry. Instead, the only way a gun owner may be denied licensure to carry is if their application substantially indicates ill “character, integrity, and competency.”33 In this way, Bruen entirely shifted the burden associated with carrying a firearm in New York State away from the potential gun-carrier.
According to the Bruen Court, the original New York statute granted authorities excessive discretion to deny individuals licensure to carry firearms.34 Justice Thomas wrote that “intermediate scrutiny” gave too much leeway to judges or other authorities to decide that an applicant has not shown “proper cause” for licensure.35 The new standard, however, seems to allow for arguably greater discretion—in the opposite direction. “Good moral character, competency, and integrity” are hardly objective criteria against which individuals can be judged. While the “proper cause” standard does not include a concrete metric for what is “proper,” it at least clearly directs relevant authorities to examine whether a showing above the norm has been made. On the contrary, the new standard grants authorities full creative freedom in evaluating firearm owners’ morality.
In fact, it is difficult to imagine an individual who has legally obtained a gun license but is somehow completely disqualified under the new statutory criteria.36 One would hope that the criteria for gun ownership would have already weeded out an individual showing the glaring signs of ineptitude that are reasons for denial under the new statute. Instead of providing authorities with improved clarity, the new statute has simply replaced the previous standard with no standard at all and, in turn, effectively allowed gun owners in New York to legally carry their guns so long as they file an application.
What Comes Next?
Bruen’s implications reach beyond the decision’s direct impact on New York State’s gun-carrying statute. The holding in Bruen has recently called into question the constitutionality of 18 U.S.C § 922(g)(8), which prohibits persons subject to domestic violence restraining orders from possessing firearms.37 On November 7th, the Supreme Court heard oral arguments for United States v. Rahimi, its first Second Amendment case since Bruen.38 While investigating his involvement in a series of shootings, police found firearms in Rahimi’s home.39 At the time of the search, Rahimi was subject to a restraining order by his ex-girlfriend, which he had previously been arrested for violating.40 Rahimi was indicted for violating § 922(g)(8) upon the discovery of his firearms. The District Court rejected Rahimi’s argument that the statute’s restriction on firearm possession was unconstitutional, citing United States v. McGinnis, where the Fifth Circuit held the restriction in line with the Second Amendment.41
While Rahimi’s appeal to the Fifth Circuit was pending, the Supreme Court decided Bruen and established the new test for assessing a gun relation’s constitutionality: alignment with historical tradition.42 On appeal, the Fifth Circuit subsequently held that Bruen’s new “historical tradition” test overruled McGinnis. In McGinnis, the same court had held that § 922(g)(8) passed constitutional muster, pointing to how the statute’s “intermediate scrutiny” furthered an important interest in reducing domestic gun violence and changes in contemporary Second Amendment jurisdiction.43 Bruen exhaustively attacked the unconstitutionality of “intermediate scrutiny” and ascertained its incompatibility with historical tradition.44 In light of Bruen, the Fifth Circuit accepted Rahimi’s constitutional challenge, and the Supreme Court is pending a decision on the matter.45
The Court’s decision in Rahimi will illuminate the potential reach of the presumptive principle in Bruen. On its face, Bruen held that the Second Amendment requires that individuals are presumed to be entitled to participate in firearm conduct liberally.46 If the Court rules for Rahimi, the Court will effectively declare that not only is there a presumption of entitlement of gun conduct, but that presumption survives information to the contrary. In other words, while Bruen can be read to assert that individuals are presumed entitlement until proven otherwise, a holding for Rahimi will suggest that individuals are presumably entitled even when proven otherwise. Such a holding may call into question the constitutionality of any regulation on an individual’s firearm conduct due to known violent behavior or other once-disqualifying characteristics.
The “historical tradition” test entrenches the already grave reality of a nation imperiled by firearms’ omnipresence. The Court has made clear its willingness to ignore Americans’ daily plight and increasingly express discontentment. Instead of addressing the omnipresent and growing plight that accompanies daily life in America, the Court clings to historical tradition. The holding in Rahimi will showcase just to what extent the Supreme Court is willing to surrender the lives of the American people, as to maintain its loyalty to text written by individuals whom likely never could’ve fathomed the number of firearms in a single modern American city.
1 See Klenosky v. New York City Police Dep’t, 75 A.D.2d 793 (1980) (holding that an individual who did not sufficiently demonstrate a “special need for self-protection” was properly denied a pistol carrying license).
3 Kachalsky v. County of Westchester, 701 F.3d 81, 97. (2012).
4 New York Rifle & Pistol Assoc., Inc. v. Bruen, 142 S. Ct. 2111 (2022).
5 Id. at 2117.
9 Bruen, 142 S. Ct. at 2126 (2022).
10 District of Columbia v. Heller, 554 US 570, 682 (2008).
11 Sarah Gray, Here’s a Timeline of the Major Gun Control Laws in America, TIME (Apr. 30, 2019, 11:13 AM).
16 See Bruen, 142 S. Ct. at 2126 (2022).
17 See Heller, 554 US 570 (2008).
18 Bruen, 142 S. Ct. at 2126 (2022).
19 Id. at 2131.
20 Ivana Saric, Poll: Americans overwhelmingly prioritize gun control over ownership rights, AXIOS (June 5, 2020).
21 Domenico Montanaro, Poll: Most Americans say curbing gun violence is more important than gun rights, NPR (May 24, 2023, 5:01 AM).
22 Id. at 2127.
23 See Bruen, 142 S. Ct. 2111 (2022).
24 Id. at 2127.
25 Id. at 2129.
26 District of Columbia v. Heller, 554 US 570 (2008).
27 Bruen, 142 S. Ct. at 3047 (2022).
28 Heller, 554 US at 689 (2008).
29 The People of the State of New York v. R.L. NY Slip Op 5112 (2023)
33 NY Penal Law § 400.00.
34 See Heller, 554 US 570 (2008).; See Bruen, 142 S. Ct. 2111 (2022).
35 Bruen, 142 S. Ct. at 2161 (2022).
36 NY Penal Law § 400.00.
37 U.S.C. § 922(g)(8).
40 Amy Howe, Court to hear major gun-rights dispute over domestic-violence restrictions, SCOTUSblog (Nov. 6, 2023, 4:58 PM).
42 See Bruen, 142 S. Ct. 2111 (2022).
43 See United States v. McGinnis, No. 19-10197 (5th Cir. 2020).
44 See Bruen, 142 S. Ct. 2111 (2022).
45 Amy Howe, Court to hear major gun-rights dispute over domestic-violence restrictions, SCOTUSblog (Nov. 6, 2023, 4:58 PM).
46 See id.