Daniel Harrison There will soon be a reform of the law in the United States. Last week, the Supreme Court made it clear that New York’s strict gun-carry law is unconstitutional. Now, at least five other states, home to more than 25% of the country’s population, including New York, will have to completely rework how they handle gun-carry permits. While undoubtedly momentous, this adjustment only scratches the surface of the long-term effects of the Court’s decision.
Minimal Impact in the Short-Term
However, the ruling is unlikely to have a major effect right away. New York and the other states whose gun laws will be directly affected by the ruling are likely to resist it and try to find ways to comply with it on paper without actually doing so. However, these initiatives have a low probability of succeeding in the long run and achieving much more than merely postponing the inevitable by a few weeks or months.
The new laws that those jurisdictions adopt once they are compelled to fall in line with the Court’s ruling will still be more restrictive than some media commentators have suggested, even after having to pay for the legal fees of several gun-rights groups. Likely, they’ll adopt legislation that’s on par with that of the District of Columbia or Illinois. The federal courts have recently overturned the restrictive gun-carry laws in both areas, forcing them to adopt a policy more in line with the rest of the country.
For instance, Washington, DC settled on a procedure that issues permits to anyone who meets the requirements. Qualifying, however, is more difficult than in other jurisdictions with comparable policies. For instance, both the training and permit fees in the District of Columbia are roughly double those in neighbouring Virginia.
In addition, it is more difficult to carry after a permit has been obtained. Carrying on the shared public transit system between the District of Columbia, Virginia, and Maryland is prohibited. It also forbids people from carrying weapons into places of worship or bars and restaurants. Those who are granted diplomatic protection even have a gun-free zone that follows them around.
Therefore, constraints will continue. It’s possible that some states will pass even stricter gun laws than those in place in the District of Columbia.
Potentially Far-Reaching Consequences
While the immediate repercussions may seem minor, the impact of the Court’s decision will be anything but insignificant, making millions more people eligible for gun-carry permits that they can actually obtain. For comparison, Florida (with a population roughly the same size as New York) has issued over 2.3 million concealed carry permits, while the number of permits issued under New York’s strict regime is estimated to be between 40,000 and 80,000.
Carrying a firearm is just the beginning, though. Because it establishes a new standard for deciding gun cases at all levels of federal court, the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen will have far-reaching effects on gun laws across the country and may even lead to the repeal of the most contentious ones.
“When the plain text of the Second Amendment covers an individual’s conduct, the Constitution presumptively protects that conduct,” Justice Clarence Thomas wrote for the Court. The government’s regulation must be shown to be consistent with the longstanding history of gun control in the United States. The court can then rule that the person’s actions do not violate the Second Amendment’s “unqualified command” only if this condition is met.
This perspective sets the stage for a prolonged legal battle over firearms legislation over the next few years. There will be new scrutiny cast on any contemporary rule that isn’t similar to one in place during the founding era. That includes a wide range of state statutes upheld by lower courts that relied on a two-prong legal test that the Supreme Court flatly rejected in Bruen.
According to Thomas, the intermediate scrutiny used to weigh the rights of gun owners against the government’s interest in keeping the public safe was not adequate to guarantee a constitutional guarantee.
Since the beginning of Second Amendment litigation a decade ago, the Supreme Court has learned that when faced with making difficult empirical judgements about firearm regulations under the banner of “intermediate scrutiny,” it is often more appropriate to defer to the determinations of legislatures. While it is reasonable for courts to give legislators a pass when they are trying to strike a fair balance between competing interests, constitutional law does not require such deference in this case. The right to bear arms for self-defense “surely elevates above all other interests” and “is the very product of an interest balancing by the people” in the Second Amendment. This middle ground, achieved through the wisdom of the American people’s traditions, deserves our complete respect.
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For gun-rights advocates, the new standard means a renewed focus on issues like the constitutionality of “assault weapons” bans, magazine limits, background checks for gun purchases, and handgun registration lists. All of them might be overturned on constitutional grounds, but doing so could take years of litigation and might require additional action from the Supreme Court.
The impact of Bruen on other aspects of gun law will become clear in a line of cases currently pending before the Supreme Court. The case of Bianchi v. Frosh concerns the “assault weapons” ban in the state of Maryland. The Fourth Circuit Court of Appeals has upheld it using the outdated two-step standard. The Ninth Circuit upheld California’s magazine limit in Duncan v. Bonta using the same two-prong test. New Jersey’s Supreme Court upheld a similar magazine case, ANJRPC v. Bruck. The state law most at risk after Bruen is probably the one at issue in Young v. Hawaii, which concerns what amounts to a total ban on gun carry in Hawaii.
However, it is entirely possible that not a single one of these gun regulations will pass the new Bruen test. If that turns out to be the case, the American gun laws of the future will look very different from the ones we have today.
