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Biden Administration Files Supreme Court Brief Supporting New York’s May Issue Gun Control Law

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Courtesy Jeff Hulbert

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New York’s longstanding proper-cause requirement does not violate the Second Amendment.

A. The Second Amendment protects an individual right to keep and bear arms, but that right is not absolute. For centuries, legislatures in England, the colonies, and the States have protected public safety by adopting reasonable regulations governing who may possess weapons, which weapons they may possess, where and when weapons may be carried, and how they may be manufactured, sold, and stored.

A court considering a challenge to an arms regulation should begin with text, history, and tradition. This Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), instructs that those sources may definitively validate or invalidate the challenged law: The Court struck down a uniquely restrictive law banning possession of handguns in the home, but emphasized that the Second Amendment permits a wide range of measures that are fairly supported by our Nation’s tradition of gun regulation.

Text, history, and tradition will not conclusively determine the validity of some laws—especially new measures adopted to address new conditions. In such cases, courts should apply the judicial method reflected in the relevant history and tradition by asking whether the challenged law is a reasonable regulation—or, to put it in modern terms, whether the law survives intermediate scrutiny.

Federal law illustrates the types of regulations that legislatures may constitutionally adopt. Congress has disarmed felons and others who may be dangerous or irresponsible. It has forbidden the carrying of arms in sensitive places, such as courthouses and school zones. And it has extensively regulated commerce in arms. All those regulations pass constitutional muster. 

B. New York’s proper-cause requirement is likewise constitutional. Throughout the Nation’s history, legislatures have adopted regulations to address the distinctive risks posed by the public carrying of concealed or concealable arms. New York’s law—which is itself a century old—fits squarely within that long tradition. And even if that tradition left any doubt, New York’s proper-cause requirement would also satisfy intermediate scrutiny. It serves public-safety interests of the highest order. It applies only to the carrying of arms in public. It covers handguns, but not most rifles and shotguns. And instead of prohibiting the carrying of handguns entirely, it allows those who need to carry them for self-defense to do so.

Amicus Brief filed by the United States in New York State Rifle & Pistol Association v Bruen

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