The Supreme Court ruled Thursday that law-abiding Americans have a right to carry a handgun outside the home for self-defense, issuing a watershed constitutional ruling against firearm restrictions as the nation reels from a spate of mass shootings and its political leaders are divided over how to curb such violence.
Justice Clarence Thomas, the court’s longest-serving justice and perhaps its most outspoken Second Amendment advocate, wrote a sweeping, 66-page opinion for the court’s conservatives that was specific to New York’s law, but also raises substantial obstacles at the high court for future gun-control measures.
“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,’ ” Thomas wrote, referring to a previous Supreme Court ruling. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”
The court’s dissenting liberals said the majority distorted history and ignored the court’s precedents. President Biden and Democratic officials called the ruling tone-deaf and ill-timed in the wake of recent mass killings in Buffalo and Uvalde, Tex., which have spurred Congress to advance bipartisan legislation strengthening federal gun laws.
“On a day when the U.S. Senate is about to pass historic, bipartisan gun safety legislation that will save lives, the current Supreme Court has issued a decision that will likely put more lives at risk,” said Sen. Christopher A. Coons (D-Del.) “Today’s court is led by conservative judicial activists who twist constitutional analysis to substitute their own policy preferences for laws passed by Congress or the states.”
Tough words came from within the court as well.
In dissent, Justice Stephen G. Breyer pointed to the more than 275 mass shootings since January and to data showing that gun violence has surpassed car crashes as the leading cause of death among children and teens. The majority’s decision, he said, will make it more difficult for state lawmakers to take steps to limit the dangers of gun violence.
The Second Amendment allows states to “take account of the serious problems posed by gun violence,” wrote Breyer, who was joined by Justices Sonia Sotomayor and Elena Kagan. He added: “Many States have tried to address some of the dangers of gun violence … by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so.”
Thomas’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
Writing separately in a concurring opinion, Alito criticized Breyer for leading his dissent with a recounting of the nation’s horrible mass shootings. “Does the dissent think that laws like New York’s prevent or deter such atrocities?” Alito wrote. “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.”
In a statement, Biden said he is “deeply disappointed” with the court’s ruling that “contradicts both common sense and the Constitution, and should deeply trouble us all.”
“In the wake of the horrific attacks in Buffalo and Uvalde, as well as the daily acts of gun violence that do not make national headlines, we must do more as a society — not less — to protect our fellow Americans,” he said.
The National Rifle Association, which helped challenge the New York law and has longed for such a decision clarifying the constitutional right to “bear arms,” called the decision a “watershed win.”
“New Yorkers will soon be able to defend themselves outside of their homes without first having to prove that they have a sufficient ‘need’ to exercise their fundamental rights,” Jason Ouimet, executive director of the NRA’s Institute for Legislative Action, said in a statement. The ruling, he said, “opens the door to rightly change the law” in the half dozen other states “that still don’t recognize the right to carry a firearm for personal protection.”
Enacted more than a century ago, New York’s law requires those who want to carry a concealed weapon for self-defense to show a specific need for doing so.
Manhattan District Attorney Alvin Bragg said in a statement Thursday that the court’s ruling “severely undermines public safety not just in New York City, but around the country” and will make it “more difficult to limit the number of guns in our communities.” In anticipation of the decision, his office has been crafting gun safety legislation that will “take the strongest steps possible to mitigate the damage done today,” he said.
In the Senate this week, 20 lawmakers — 10 from each party — endorsed a framework agreement coupling modest new gun restrictions with about $15 billion in new federal funding for mental health programs and school security upgrades. Late Thursday the full Senate voted 65 to 33 to approve the measure, sending the legislation to the House, where it is expected to pass with bipartisan support on Friday.
If signed into law, the Bipartisan Safer Communities Act would authorize the most significant new gun restrictions since the 1990s. But it falls far short of the broader gun-control measures for which Biden and other Democrats have called, such as a new assault-weapons ban or restrictions on high-capacity ammunition magazines.
The Supreme Court in 2008 ruled for the first time that the Second Amendment bestowed on an individual the right to keep a gun in the home for personal defense rather than related to military service.
Justice Antonin Scalia’s decision in District of Columbia v. Heller struck a law that severely restricted gun ownership but answered only part of what it means to “keep and bear arms.”
Now the court has taken up the question of what it means to “bear” arms.
Thomas made clear the right was expansive: “To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections,” he wrote, adding that the court found in Heller that the amendment guarantees an individual right to possess and carry weapons in case of confrontation, “and confrontation can surely take place outside the home.”
Thomas expressed displeasure with judicial deference to states when considering gun restrictions. Judges should not weigh a law’s burden on the Second Amendment right and the strength of the state’s interest in imposing the challenge, as Breyer advised in his dissent.
Instead, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation,” he said.
His own historical analysis showed that will be a difficult obstacle.
In Heller, Scalia said the Second Amendment is not unlimited and that restrictions were permissible in “sensitive places,” such as schools and government buildings. At oral argument last fall, several justices expressed concern about guns on New York’s subway or in Yankee Stadium.
Thomas said it was uncontroversial that schools, government buildings, polling places and courthouses are long-recognized “sensitive places” where weapons could be prohibited. But he said that did not give government officials leeway to define, for instance, the entire island of Manhattan as a “sensitive place.”
“Expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly,” Thomas wrote.
But Breyer noted that the court’s opinion provides no detailed direction for how officials in New York — or in the five other states with large cities such as Baltimore and San Francisco — could prohibit firearms in public places where large groups of people gather and instead left those decisions to lower court judges to be answered another day.
“What about subways, nightclubs, movie theaters, and sports stadiums? The Court does not say,” Breyer wrote, later concluding his dissent by accusing the majority of having failed to consider “the potentially deadly consequences of its decision.”
Even though Thomas had made the point, Kavanaugh and Roberts wrote separately to emphasize that the opinion did not call into question the restrictions that sometimes accompany “shall-issue” laws in 43 states.
“Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements,” Kavanaugh wrote.
Thomas agreed generally but said that “we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
The two people challenging the New York law — Robert Nash and Brandon Koch — have licenses to carry handguns for hunting and target practice. But New York authorities denied their requests for “unrestricted” licenses for self-defense because officials said they could not show a “special need for self-protection distinguishable from that of the general community.”
During 2018 and 2019, at least 65 percent of applicants in New York were approved for an “unrestricted” license, according to a state analysis of records submitted to the court.
Since the 2008 decision, lower courts have generally sided with states that restrict the right when determining how the Second Amendment applies beyond people’s homes. The justices have turned down numerous requests from gun rights advocates to review those decisions, prompting Thomas, Alito, Gorsuch and Kavanaugh to complain about their colleagues’ apparent reluctance to reenter the gun debate.
Twenty-five states do not require a permit to carry a firearm in public, while several others do but refrain from asking applicants to justify their need for a weapon.
The public debate now will turn to which kinds of restrictions could survive the Supreme Court’s new standards. Jonathan Lowy, chief counsel at the gun control group Brady, said the court “has invented a right that never existed in the history of the United States.” Even so, he said states can continue to prevent dangerous people from carrying handguns in public by expanding training requirements and strengthening standards for revoking licenses when necessary.
But there was a stark reminder Thursday that the nation’s divide over guns remains, in some circumstances, insurmountable.
Just hours after the opinion was published, the lead lawyers on the winning side — former solicitor general Paul D. Clement and attorney Erin Murphy — parted ways with their law firm, Kirkland & Ellis.
The firm announced that it would no longer represent clients in Second Amendment cases and said Clement and Murphy would be leaving “in order to continue their full range of existing representations.”
The pair said they would form their own appellate firm.
“We do not take this step lightly,” Clement said in a statement. “Unfortunately, we were given a stark choice: either withdraw from ongoing representations or withdraw from the firm. … We could not abandon ongoing representations just because a client’s position is unpopular in some circles.”
The case is New York State Rifle & Pistol Assoc. v. Bruen.