NYSRPA v. Bruen Decision FAQ / ‘Splainer
Today (June 23) the Court held that the Second and Fourteenth Amendments protect the right to carry firearms in public in the Firearms Policy Coalition-supported case, NYSRPA v. Bruen. The Supreme Court’s Bruen decision is a landmark opinion full of important holdings and implications for your Second Amendment rights, so we wanted to bring you instant reactions and answers by actual Second Amendment scholars and constitutional litigators.
This NYSRPA v. Bruen FAQ and ‘Splainer is brought to you by Firearms Policy Coalition and FPC Law. FPC is YOUR team fighting to create a world of maximal human liberty. FPC Law is the nation’s first and largest public interest legal team focused on the Right to Keep and Bear Arms. You can power the work by joining FPC at JoinFPC.org or chip in a few bucks at firearmspolicy.org/donate.
If you have questions not answered here, post them on Twitter and tag @Gunpolicy — we’ll do our best to answer as many as we can!
You can also watch FPC’s symposium discussing the Bruen decision here.
(Last revised 2022-6-23 at 2:44 p.m. Pacific time)
Q: What does this mean as a practical matter for people where the laws are similar?
A: The Court’s decision today has a few important implications for people in “may-issue” states: 1) The Second and Fourteenth Amendments protect the right of peaceable people to carry firearms in public for self-defense; 2) Government licensing authorities throughout the nation cannot require any kind of “special need” to be articulated by carry license applicants; and 3) When analyzing Second Amendment claims, lower courts cannot use a “two-step” approach or apply weak “tiered” scrutiny. Instead, the courts will have to perform a historical analysis and determine if the conduct or instrument is protected. If it is protected, and the person is not prohibited under constitutional standards, the challenger should win. This test applies beyond carry cases, and will be important in our lawsuits challenging bans on so-called “assault weapons,” handgun “rosters” and microstamping, and other cases seeking to enjoin unconstitutional restrictions on protected firearms and conduct.
Q: Does this decision mean you don’t need a permit to carry a gun, concealed or otherwise, outside your home anymore, or does it mean law enforcement may still require a permit?
A: Today’s decision means that if states restrict firearm carry to only those who first obtain a license, then the person must be allowed to carry unless prohibited from exercising Second Amendment rights under constitutional standards.
Q: Does this mean that people can carry guns into stores, coffee shops, and other public businesses?
A: As a practical matter, this decision is likely to mean that peaceable people must be allowed to carry in most public places. The Court said, “Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” Under the Court’s analysis, there would seem to be a limited number of places where governments may be able to impose location-based restrictions, but the decision does appear to leave untouched specific questions of what those are. We will be actively litigating such restrictions and look forward to restoring the human right to bear arms.
Q: Does this take effect immediately, or does someone have to sue and go through a legal process before other states’ restrictions change?
A: This decision is binding on all lower courts. Current and future cases filed in various jurisdictions will address enforcement of similar laws. And while the remedies in the case apply directly to the parties, law enforcement throughout the nation would be wise to immediately consider the decision, end their unconstitutional policies, and stop violating fundamental human rights.
Q: How will the SCOTUS decision have a ripple effect on other gun control laws?
A: The 6-3 majority opinion, authored by Justice Clarence Thomas and joined by Justices Alito, Gorsuch, Kavanaugh, Barrett, and Chief Justice Roberts, was notable in a number of important ways:
- The Court expressly rejected the “two-step” approach often employed by lower courts since the McDonald v. Chicago decision in 2010, saying that the Constitution “demands a test rooted in the Second Amendment’s text, as informed by history.”
- The Court expressly held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”
- Quoting the McDonald plurality opinion, the Court held that: “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.”
- The Court said that: “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.”
- Ultimately, the Court held that: “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.”
The Court’s rejection of tiered scrutiny and requirement that lower courts apply the “text, as informed by history” should result in a much more constitutionally sound analysis by judges in our Second Amendment cases. And on the history front, our FPC Law is the only pro-liberty legal center with a dedicated research program, helmed by attorney Joseph Greenlee, a scholar cited favorably by the Court today. Not only have we produced significant and authoritative historical research already, such as the recent article on the right to self-manufacture firearms, but we have many more research projects underway.
Q: Can you also address the practical, immediate impact of the SCOTUS decision on other states’ concealed carry laws?
A: This decision is binding on all lower courts. Current and future cases filed in various jurisdictions will address enforcement of similar laws and other restrictions. And while the remedies in the case apply directly to the parties, governments and law enforcement throughout the nation would be wise to immediately consider this binding decision, end enforcement of their unconstitutional policies and practices, and stop violating fundamental human rights.
Q: What needs to happen before there will be changes in California?
A: A court in California will need to specifically review California’s laws and the application of those laws by local licensing authorities under the textual, history-supported test required by the Supreme Court.
Q: Do you expect gun owners to flood sheriffs and licensing authorities with carry permit requests, similar to what happened during the window when Californians could legally acquire magazines holding more than 10 rounds?
A: We certainly hope that millions of people will submit an application to their respective licensing authorities without delay. We’re excited for a future where all peaceable people who want to lawfully exercise the human right to bear arms can and do.
Q: Is that realistic, or will this take a while to sort out? And how will it be sorted out?
A: We have warned licensing authorities for years that this day would come. If authorities resist the Constitution and refuse to comply with this decision then we will sue them. If they cannot handle complying with the Supreme Court’s decision then they have an option: stop enforcing unconstitutional restrictions and just allow people to carry firearms for self-defense. We are preparing a wave of new litigation to add to the dozens of cases we have underway in California and throughout the United States. We and our FPC Law team are eager to radically restore the fundamental human right to keep and bear arms.
Q: With the new precedent, is it finally viable to abolish fees/taxes on guns & ammunition?
A: Under the text-based (informed by history) test announced in Bruen there should be no question that non-general taxes and fees directed at arms are suspect and ripe for challenge. We are already engaged in litigation to challenge fees and taxes and we have more cases in the pipeline.
Q: Expectations around non-resident permitting for states whose statutes are currently limited to residents?
A: While some jurisdictions may change their laws to comply with this decision, non-resident carry is going to require follow-up litigation in some instances. Under this decision, laws and policies that “[prevent] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms” are subject to challenge. If you are denied a license to carry, please let us know by filing a report with our FPC 2A Hotline at https://www.firearmspolicy.org/hotline.
Q: Are local law enforcement agencies still able to require interviews, range time, classes, and/or weapon qualification at a range in order to issue a CCW?
A: The NYSRPA v. Bruen decision doesn’t directly address those issues, which were not before the Court in this case. However, those requirements will certainly be reviewed and challenged in future cases. Our FPC Law team will be exploring many new opportunities for new cases as we revise our litigation strategy based on the decision.
Q: What are the cases coming forward to force other states, specifically NJ to get rid of Justifiable Need? I know Mazahreh v Grewal is not an FPC case, but will that or your own case force the state to get rid of the Justifiable Need statute first?
A: Anticipating this decision, FPC got out in front of things by filing cases against “may-issue” jurisdictions like New Jersey and Maryland. Stay tuned for action in those and other cases, including new lawsuits we’re working on today.
Q: What do you think the chances are of a state refusing to comply with today’s ruling and ending up with a writ of mandamus / contempt of court charge?
A: While not unprecedented, it would be very odd for the lower courts in the instant case to resist the clear command of the Supreme Court. Other jurisdictions may attempt to resist, but the command–with respect to the right to carry–is extremely clear.
Q: What does this mean for existing pistol permit holders in NY that have “target” restrictions?
A: Individuals in New York who have a restricted license can seek an unrestricted license. Provided that they’re not prohibited, under this decision, those licenses should be issued.
Q: After this decision, can the Illinois FOID card system withstand the new standard of scrutiny? Particularly regarding fees, wait times, and prohibiting perfectly mentally healthy people who had treatment in the past from owning guns with an (expensive) psychiatrist’s permission.
A: We recently filed a brief with the Illinois Supreme Court in a FOID case that, under the Bruen decision, should apply a text (informed by history) analysis. We expect to litigate many new issues or file cases challenging laws and policies that were previously upheld under an improper analysis.
Q: How soon do you think a regular non rich or famous citizen can actually get a CCW in CA after the decision?
A: As a practical matter, we anticipate that jurisdictions hostile to the human right to keep and bear arms will place obstacles in the way of applicants. However, when they do, we want people to reach out and let us know by filing a report with our FPC 2A Hotline at https://www.firearmspolicy.org/hotline. Governments that continue to deny the right to carry will be sued.
Q: How does this ruling affect the decision-making processes of lower courts? Does this stop intermediate scrutiny?
A: The Court addressed this directly in a few ways. For example, the Court held that: “We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” While some lower courts may try to avoid this, we expect this express rejection of interest-balancing will ultimately put an end to watered-down scrutiny.