Supreme Court Upholds Gun Rights Outside of the Home, Let’s Break It Down

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U.S.A.-(AmmoLand.com)-— The Supreme Court opinion on the New York State Rifle and Pistol Association v. Bruen was released on June 22, 2022. It is a 6 to 3 opinion, which upholds the Second Amendment as applying outside the home and rebukes Circuit Courts for creating an unnecessarily complicated two step process in applying Second Amendment protection to statutes. The opinion is 135 pages long.

Justice Clarence Thomas wrote the majority opinion, which was joined by Justice Alito, Justices Kavanaugh and Roberts, and Justice Barrett in concurring opinions. Justice Alito and Barrett concur in full. Justices Kavanaugh and Roberts simply concur.

The opinion by Justice Thomas is relatively simple. The Constitution must be interpreted as what it meant to the people who ratified it in 1791.



Looking at history can aid in the understanding, but what was meant at the time of ratification is key. In addition, the Second Amendment became applicable to state governments with the Fourteenth Amendment in 1868, so what was meant by the Fourteenth Amendment at the time of ratification is also important.

Justice Thomas cites Caetano v. Massachusetts as one way the Court has adopted the Second Amendment to modern realities.

Thomas clarifies all parties agree the Second Amendment applies outside the home. The respondents, who try to defend the New York “may issue” law, attempt to render the Second Amendment meaningless, by giving state authorities the power to decide who the Second Amendment applies, on a case-by-case basis.

Quotes from the opinion show Thomas correctly points out Second Amendment rights apply to ordinary, law-abiding adults. From Page 3 :

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects.

and

Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry.

On page 4, Thomas explains the requirement for states to show their law is Constitutional.

The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.

This is important because it sets the standard for states which are attempting to regulate the right to keep and bear arms. They have the burden of showing a widespread historical precedent for their proposed law.  The precedent has to be greater than what existed for the Sullivan law.

On page 11 Thomas mentions, specifically, six states which fail the test. According to the decision, six states require some special need beyond that of ordinary citizens for self defense. Those states are:

California, Hawaii, New York, New Jersey, Massachusetts, and Maryland. The District of Columbia is mentioned, with the caveat the law there has been enjoined by the lower court for several years.  The laws in those states, by being mentioned, appear to this correspondent, to have been effectively struck down.

On page 14, Justice Thomas goes on to strike down the ridiculously complicated “two-step” framework which has become common to interpret the Second Amendment in several Circuit courts.

In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.

Today, we decline to adopt that two part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

On page 59, Justice  Thomas recounts of the purposes of the Fourteenth Amendment, to protect the freed slaves and to ensure their right to arms.

On page 64, Thomas states late 19th-century regulation should bear little weight compared to earlier evidence.

As we suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.

On page 66, Justice Thomas dismisses the Kansas court understanding of the Second Amendment in 1901 as clearly erroneous:

For example, the Kansas Supreme Court uphelda complete ban on public carry enacted by the city of Salinain 1901 based on the rationale that the Second Amendment protects only “the right to bear arms as a member of the state militia, or some other military organization provided for by law.” Salina v. Blaksley, 72 Kan. 230, 232, 83 P. 619, 620 (1905). That was clearly erroneous.

On page 68, Justice Thomas explains the limitations on the carry of arms are few and not broadly applied.

Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.

Continuing on page 69, Justice Thomas explains the Second Amendment is due all the same respect as the First Amendment and the Sixth Amendment.

The Second Amendment is not a Second Class Constitutional Right. It deserves the same respect as the First Amendment, or the Sixth Amendment. 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.” McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

Finally, Justice Thomas strikes down the New York law as unconstitutional.

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We, therefore, reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered!

Justice Alito writes a concurring opinion, starting on page 75.

I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.

On page 77, he explains the thrust of the dissent. His explanation is similar to what this writer has written, many times

Like that dissent in Heller, the real thrust of today’s dis-sent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit. That argument was rejected in Heller, and while the dissent protests that it is not re-arguing Heller, it proceeds to do just that. See post, at 25–28.

Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun. In 1791, when the Second Amendment was adopted, there were no police departments, and many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own. It is hard to imagine the furor that would have erupted if the Federal Government and the States had tried to take away the guns that these people needed for protection.

Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.

On page 79, Kavanaugh joins with Roberts in concurring. They do not say they concur “in full”. They list the many ways the Second Amendment may still be regulated. It is disappointing, but their concurrence does not carry as much weight as does Thomas’ opinion.

On page 83, Barret concurs in full, and warns against using Reconstruction Era history in interpreting the Second Amendment. She notes the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.

The dissent starts on page 84. The dissent by Breyer Starts with a false use of the English language:

“In 2020, 45,222 Americans were killed by firearms.”

The basis for nearly all “gun control” legislation is the transference of motive and volition from people to an inanimate object. The correct English usage is: Americans were killed with firearms, not by firearms.

Justice Breyer goes on to claim the Constitution does not place certain things outside of government power to do. He complains about the majority opinion thus, on Page 85:

It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests maybe. The Constitution contains no such limitation, and neither do our precedents.

Justice Breyer is mistaken. One of the clear purposes of the Constitution is to place certain things outside of government power. A core philosophical building block of Progressive thought is limits on governmental power are bad. This is not the philosophy the Constitution was based upon.

Breyer simply contends the majorities interpretation of historical law is wrong. He supplies the minorities’ interpretation.

This opinion should go far in restoring Second Amendment rights.

It is difficult to see how even the Ninth Circuit can uphold the Hawaii licensing scheme in Young v. Hawaii, or the bans on magazines over 10 rounds or bans on so-called “assault weapons” in California, when those items have already been ruled to be covered by the Second Amendment.

However, Progressive judges are persistent and inventive in finding ways to justify the positions they wish to take.

This opinion does not end the fight for restoring Second Amendment rights. It moves us along the path toward full restoration.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Sfed

Excellent article. 🙂
Breaks it down and explains in a way that you don’t need to be an attorney to understand.
About time the 2nd is broadly recognized.

Last edited 1 month ago by Sfed
StLPro2A

Lawyers…..what’s that adage about “lower than whale shit on the bottom of the ocean”….135 pages to summarize “…..shall not be infringed” followed only by a PERIOD is pretty damn ABSOLUTE. IE….Keep your damn laws off We The Little Peeps’ Right to Keep and Bear. So there, FU Slo Joe.

john

Are We Entering a New Political Era?

The neoliberal order seems to be collapsing. A generation of young activists is trying to insure that it’s replaced by progressive populism, not by the fascist right.



https://www.newyorker.com/magazine/2021/05/31/are-we-entering-a-new-political-era

john

Read the link please

In “1984,” George Orwell introduced the term “doublespeak.” In the Amy Coney Barrett hearings, Democrats have perfected it.
The Democrats are in a bad way, and two things stand immediately in the path of their political agenda: the Supreme Court and the English language. To destroy one, they must destroy the other.

https://nypost.com/2020/10/17/democrats-are-twisting-the-english-language-to-suit-their-agenda/

john

Barrett a mother of many children will be a wild card when it comes to the 2nd amendment. The opinions of the justices are glimpse into the future while lawyers continue to interpret the constitution for political gain the supreme court continues to kick the can down the road. Our government no longer works for the people it serves a global political agenda at the expense of all Americans. The supreme court should now understand that they themselves are now under attack not only for the dissicision they make in the court. The attacks have followed them home to their… Read more »

swmft

criminal actions that should have repercussions for all involved, hope next congress takes action and takes down these traitors , but we will see it will be other side of same coin and we will be closer to a armed realignment of government

john

The core group in Washington the elite have now turned on the American way of life. Independence Day soon might be another date on the calendar as when the people took back what is ours not theirs in the twenty first century.

StLPro2A

“What country before, ever existed a century and a half without a rebellion? And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance?” – Tommy….Tommy Jefferson. AH HA…there is the WHY behind gun control. Politicians don’t care about dead bodies in schools, grocery stores, WallyWorlds, Shootcago streets….those are features. “That is why our masters in Washington are so anxious to disarm us. They are not afraid of criminals. They are afraid of a populace which cannot be subdued by tyrants. ” – late Col Jeff Cooper.… Read more »

Last edited 1 month ago by StLPro2A
uncle dudley

There should be no laws in any state that say “May Issue” all laws should read “Shall Issue”.
We should not need permission from the government for rights that are in our founding documents.
The government is supposed to work for the citizens, they have forgotten that premise.

WeWereWarned

Sir, the older folks said it was okay for the government to strip Citizens of their rights and force them to be just following orders socialists during Nam. Why would the government respect weaklings like that, who said yes to just following orders, over having honor and saying no with force. Conservatives made it to where socialist enforcers can murder us armed Citizens for being armed, so why would the masters of those enforcers care what we Citizens have to say about their behaviors. Remember, those who supported the draft and foreign wars of distraction redefined patriotism to mean absolute… Read more »

swmft

lbj must be you favorite president but fbi and revenuers have been violating constitution since their inception and should have been dissolved long ago like predecessor of dea, down side is they got the local enforcers to do the illegal part of job that got agency broken up so no fbi or atf locals break your door without judges paper and kill you oops wrong address ..we are close to MAJOR government reform at the end of of a sword and noose

musicman44mag

What planet are you from? Demoncraps love big government not conservatives who love freedom and are fighting today to keep our guns and have always fought against restrictions until the latest’s RINO move for red flag laws and that was just a few. Democraps made the ARs illiegal, democraps want to stop citizens from having M855 ammo, democraps want a gun registry, democraps want all our guns and democraps are your problem not conservatives. Note, all the demonrats voted for it and only and few republicans turned their back on us. I noticed you give advice on who and where… Read more »

StLPro2A

Excuse me…..all states should should read “don’t need no stinkin’ issue.” There fixed it for you. Class dismissed. Go forth and err no more.

Henry Bowman

It is very gratifying to see what is now before us: a solid refutation of 99% of antigun non-laws [Marbury v Madison: any ‘law’ that contradicts the plain text of the Constitution is void]. So, with the Heller and McDonald decisions, and NYSRPA, we’ve regained the majority of the application of the 2nd Amendment. I say ‘majority’, because we all know that anti-freedom individuals & organizations are already discussing how they can do an end-run around this decision, as they have sought to do with Heller. I may be missing something, and if so, forgive my oversight. Yet, I believe… Read more »

Last edited 1 month ago by Henry Bowman
Rob J

100% accurate. Here in WA state we already have such infringements on the books: gun sales to 18-20yo restricted, magazine bans (importation and manufacture only at this time, but it is the foothold to ban possession), new classifications of both frame and receiver as firearms, serialization and infringement upon personal firearms building, ban of personal sale or transfer without background checks, sweeping “red flag” protection orders (de facto confiscation in violation of the 6th and done in absentia, allowing once per year reversal trial with burden of proof on the infringed), “safe storage” holding the victim of theft responsible for… Read more »

swmft

can you make one that says MY RIGHTS ARE NOT NEGOTIABLE but your salary is

musicman44mag

I don’t think you missed anything. Well said.

Rob J

The text of Justice Barret’s concurrence will be used as a means to impose unrealistic impositions upon the license requirements. This frees states to mandate outrageously expensive yearly fees, yearly/quarterly/monthly background check infringements, etc ad nauseam.

In this case the concurrence should have been simple text of “I concur” or “I concurrence in full”. The additional expositions were neither warranted nor welcomed.

Watch um

Agree with you %

Henry Bowman

I agree 1000% – See my OP above.

Hazcat

“This opinion does not end the fight for restoring Second Amendment rights. It moves us along the path toward full restoration.”

Correct, until ‘shall not be infringed’ is fully recognized we must continue the fight.

Last edited 1 month ago by Hazcat
swmft

like chopping down a tree with a table knife , need a ruling that calls the actions by these states criminal and repugnant to constitution and rule of law

Last edited 1 month ago by swmft
Henry Bowman

As long as we don’t have 6 or more justices willing to say “all gun laws are infringements”, yes, the fight will continue!

swmft

and it looks like it will get ugly, and soon

Henry Bowman

You nailed it!

Patriot Solutions

Never before have Esquires had so much to fight un-constitutional rules as they have today. Hell, most of the courts un-constitutional rulings on 2A have just been clarified as un-constitutional by Heller & Bruen.

swmft

and judges were not censured by the bar or scotus, and or removed if the did not correct ruling. the leftists know what is right they just dont like it.

swmft

I have a “friend” a lawyer who calls me whenever he has a client that wants to get rid of guns not because he wants to but as a promise to his father that survived the night of broken glass. I do not get an anti gun Jew. I have his fathers 45 , had an nfa transfer from an estate that the family wanted nothing to do with same thing. I know members of the mossad them I understand and respect

Last edited 1 month ago by swmft
Orion

i agree, people of the jewish faith should be the LAST group to support any proposed firearm legislation. but then, liberal jews, especially New York jews, are not Israelis. Israelis know the dangers of being surrounded by hostiles who live only to extinguish them.

Patriot Solutions

2A doesn’t regulate me, it regulates the government psychopaths.