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Concealed-Carry of Guns Could Be a "Right" of All or Some

How the Supreme Court decides the law is as important as its decision.

Key points

  • The Supreme Court will adopt either a two-part inquiry or text-history-tradition method to decide if proper cause violates the Second Amendment.
  • Text-history-tradition could render public possession of guns an irrefutable right of New York residents.
  • Two-part inquiry might preserve the ongoing interpretation of the Second Amendment so that it can respond to ever-changing social conditions.

New York residents Robert Nash and Robert Koch were denied applications for licenses to carry concealed guns (concealed-carry) in public places. They appealed to the Supreme Court, arguing they suffered a violation of their second amendment rights.

The case before the Court is a landmark because it pits conflicting judicial decision-making processes that can apply to second amendment challenges to gun regulations. While the application of either method could preserve or reverse the New York law in question, the differences between the two methods have very important implications for the ability of the law to respond to ever-evolving social circumstances.

Two methods of decision-making or reasoning are available to justices presiding over New York State Rifle and Pistol Association v Bruen: the text, history, and tradition (THT) method and the two-part inquiry (TPI) method. THT lends to broad rulings differing from the TPI method which limits rulings to narrow legal questions.

Whereas the TPI method might guide but not dictate legal process concerning future second amendment challenges to gun regulations, THT could constitutionally mandate a shall issue regime for concealed-carry, rendering interpretation of the second amendment somewhat moot and conferring concealed-carry a ‘right’ of over a quarter of the United States’ population.

Does it matter which method of reasoning the Court applies if the New York requirement to show proper cause to gain a license to carry guns in public is struck down? Isn’t it all the same, more guns in more people’s hands? The short answer is the method of reasoning the Court adopts matters because one method of reasoning could yield a broadly-applicable rule-based outcome that will be much harder to challenge over time, whereas the other method of reasoning might preserve lower courts’ abilities to interpret challenges to gun laws in ways that are responsive to changing times, including changing understanding of gun owners, the pros and cons of gun ownership, and so on.

A Clash of Judicial Reasoning Methods

New York law requires that people demonstrate they have proper cause to conceal-carry a gun in public. Nash and Koch claim this legal restriction violates the second amendment, which reads: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. To assess the allegation that New York’s restrictions on gun possession violate civil liberties, the court can choose to apply one of two decisional processes.

Two-Part Inquiry (TPI) Versus Text-History-Tradition (THT)

Applied to constitutional cases, TPI involves two steps; i) determining if a case is within the scope of an amendment, and ii) deciding which level of scrutiny is appropriate given a case satisfies step one. The case of Nash and Koch seemingly satisfies step one as it is about the right to carry guns in public, and the second amendment recognizes that right.

This means the Court can proceed to step two and incorporate a strict or intermediate test which depends on whether legal restrictions on gun possession ‘strike’ at the core or the periphery of the second amendment.

The strict test would require proof that the New York restrictions on gun licenses serve a compelling state interest and that the New York law only narrowly affects the second amendment to protect this state interest. Under the intermediate test, it would need to be proven that the New York law serves an important state objective and that a substantial impact on the amendment is justified to achieve that objective.

The alternative THT method is by nature a strict test requiring that any interpretation of the Constitution aligns with the original understanding of the text as intended at the time of its adoption, which in this case is the 1800s or earlier. Terms like keep and arms are interpreted in light of historical documents and sources.

The test to weigh state interests and the intention of the Constitution (that is included in TPI) may not apply to THT for the sake of preserving the Constitution’s original intention. Problems with THT reasoning are apparent in the example of technological advances in firearms that the founders of the Constitution would not have anticipated and, therefore, could not have considered when developing the ‘intention’ of the Constitutional second amendment.

Cass Sunstein is a reputed scholar in decision-making in the context of legal scholarship, particularly Constitutional legal scholarship. In commenting on different methods of judicial reasoning, he opines, “if traditions are good, and if the scrutinizers are bad, traditionalism is appealing [however] if traditions include injustice and cruelty, and if the scrutinizers are reliable, then traditionalism makes no sense.”

If we accept that his reference to scrutinizers applies to the Court’s justices and assume they are reliable and think rendering concealed-carry an indisputable ‘right’ in the state of New York reflects an act of injustice, how can we justify the application of THT? Would conferring an unqualified Constitutional right to carry guns in public produce injustice given historical and recent victims of mass shootings and the potential increased risk of such events?

There were ten fatalities in New York's most recent mass shooting at the Tops Friendly Markets store in Buffalo on May 14, 2022.

Sometimes how decisions are made is as important, if not more important, than the outcomes of those decisions, especially when the decision-making process is an outcome itself in the sense that it will serve to guide how future decisions of a similar type will be made.

References

Rosenblatt, A. (2022). Proper Cause for Concern: New York State Rifle & Pistol Association v. Bruen, Duke Journal of Constitutional Law & Public Policy, 17, 239-265

Sunstein, C.R. (2008). Beyond Judicial Minimalism. Tulsa Law Review, 43, 825-842

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