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Are gun laws constitutional? Courts must now look at history to decide.

Would the founders have regulated high-capacity magazines? Courts will be struggling to apply the Supreme Court’s latest Second Amendment decision for years.

Semiautomatic pistols at a store in El Cajon, Calif., in April 2021. (Bing Guan/Bloomberg News)
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On June 23, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court struck down New York’s strict rules for obtaining a license to carry a concealed handgun in public. Justice Clarence Thomas, joined in full by the five other Republican-appointed justices, wrote the opinion; the three Democratic-appointed justices dissented. By calling into question both strict licensing laws and a host of other gun regulations, the court’s decision will reach far beyond New York.

The opinion’s greatest impact will probably come when lower courts begin to apply the Supreme Court’s new legal framework for gun rights in future cases. That framework requires judges to decide Second Amendment challenges by looking only to history, upholding contemporary laws with historical antecedents and striking down those without. Apparently that framework holds whether or not the challenged laws effectively prevent gun-related injuries and deaths.

What the opinion says

Two residents of Upstate New York and a state gun rights organization challenged New York’s requirement that an applicant show “proper cause” to obtain an unrestricted license to carry a concealed handgun, arguing that violated the Second Amendment. State licensing regimes like New York’s are often referred to as “may issue” laws, because they give licensing officials discretion over whether someone meets the proper-cause standard. Most federal courts of appeals have upheld these laws. But the Supreme Court argued that they lack historical precedent in the 18th or 19th centuries and therefore cannot stand. However, the court held that “shall issue” laws, like those in most other states, are not problematic, so long as they rely on objective criteria meant to assure an applicant is a “responsible, law-abiding citizen.”

A may-issue law typically requires that, in addition to basic requirements like a background check or a training course, the applicant must show they have some good and specific reason to carry a concealed weapon. In contrast, a shall-issue law has no such requirement, instructing officials to issue a license to anyone who meets mostly objective criteria like passing background checks or completing live-fire training.

That distinction is important. Although evidence is not uniform, a recent study found that shall-issue laws like the kind the court mandated across the country are associated with 13 to 15 percent higher violent crime rates, 10 years after adoption, than may-issue laws.

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The decision will immediately affect which Americans are eligible to carry concealed weapons

As late as 1987, most states had “may-issue” laws; 16 prohibited concealed carry altogether. But over the past few decades, most states have shifted to shall-issue laws. The Bruen decision immediately affects New York and six other states that still have may-issue laws, affecting about 80 million Americans, or roughly one-quarter of the country’s population. Nationwide, licensing officials are now required to issue concealed-carry licenses based on objective criteria, without any obligation that an applicant give a good reason to carry.

In a concurring opinion, Justice Brett M. Kavanaugh, joined by Chief Justice John G. Roberts Jr., wrote “to underscore two important points about the limits of the Court’s decision.” First, he wrote, the decision allows states to impose such other objective requirements as “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force.” Second, he repeated assurances that appeared in the Supreme Court’s 2008 District of Columbia v. Heller decision, which held that the Second Amendment is not absolute and that some gun laws and regulations will be constitutional.

Thomas’s majority opinion did not include those same assurances.

Find all TMC's Supreme Court analysis here

The ‘history-only’ test will have even more far-reaching effects

Before the Supreme Court’s decision last week, the federal appellate courts had all agreed on how to decide Second Amendment challenges. Courts first asked whether a challenged law placed a burden on gun rights protected by the Second Amendment. If yes, the courts’ second step was an analysis that’s conventionally used in constitutional litigation. They examined a challenged law with different levels of scrutiny, depending on how burdensome the requirement was and how important was the protected right.

Most often, they applied a test called “intermediate scrutiny.” It asks whether the government asserted an important interest in the regulation; that’s rarely a real question in gun litigation, since nearly all gun laws are motivated by what all parties recognize as important public safety goals. The test also examined whether the regulation actually advanced that interest. Courts often decided that question by judging the empirical evidence a state put forward, such as evidence that a law designed to reduce shooting deaths actually did so.

Bruen appears to throw out any empirical test about whether laws and regulations actually protect Americans from gun violence. Instead, the court declared, governments must prove that a law “is consistent with the Nation’s historical tradition of firearm regulation.” It did not clearly define the type or variety of historical precedent needed to justify a modern law, but made clear such evidence could not be too old (such as laws from the Middle Ages) or too recent (such as laws from the early 1900s).

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Thomas offered little guidance about this historical inquiry. He did recognize that not all modern gun laws would be unconstitutional; he counseled lower courts to use analogical reasoning to test whether a contemporary law is “relevantly similar” to a traditional one. The opinion advised that courts should examine “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.”

Courts will be trying to figure out exactly what that means for years. Does a ban on high-capacity magazines burden the right to armed self-defense more than some set of gun regulations in 1791? How can modern laws aimed at reducing mass shootings be “comparably justified” to some precedent from before similar tragedies? The court does not say.

Lower federal courts have used the conventional test in Second Amendment challenges for more than a decade and have substantial precedent about various types of laws. Bruen wipes away those cases. Judges will now have to base decisions solely on historical evidence, which is often conflicting, giving them discretion to assess similarities and differences with few parameters for making those calls. Bruen may have settled one question, but its history-only test raises many more, subjecting all future legislation to uncertainty. All gun laws now await judicial assessment of whether they conform to a bygone era’s traditions.

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Jacob D. Charles (@JacobDCharles) is executive director of the Center for Firearms Law at Duke University School of Law and, as of fall 2022, an associate professor of law at Pepperdine University Caruso School of Law.

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