A Surprising Take on the Supreme Court’s Bruen Decision

by | Aug 9, 2022 | Gun Laws

On June 23, 2022, the Supreme Court held 6-3 in NY Pistol & Rifle Association v. Bruen that New York’s proper cause requirement for obtaining a concealed carry license was unconstitutional. The case brought together some unlikely allies in challenging New York’s law.  For example, several progressive public defender organizations like the Black Attorneys of Legal Aid, the Bronx Defenders, and the Brooklyn Defender Services filed an amicus brief in support of the NRA’s brief. In this blog, I will explain why public defender organizations filed briefs supporting the NRA’s position, explain the Supreme Court’s ruling, and discuss how it may affect gun laws in the District of Columbia and Maryland. In Bruen, the Supreme Court held that New York’s proper-cause requirement violated the constitution because it prevented law-abiding citizens with normal self defense needs from exercising their Second Amendment rights, which the Court found included carrying in public for self defense purposes. The heart of this case dealt with the issue of whether a state can be a “shall issue” or “may issue” state when it comes to issuing gun licenses.  New York, along with six other states, prior to the case were considered “may issue” when it came to issuing licenses for concealed carry permits.  Under the “may issue” regime, regulators and government officials would only issue a concealed carry permit if the applicant could demonstrate a “special reason” or “proper cause” as to why they needed a permit for self defense.  DC had a similar restriction up until a DC Circuit case Wrenn struck down DC’s special reason requirement.

Why Public Defender Organization Supported the NRA’s Brief?

So, why did notable progressive public defender organizations in New York side with the NRA and file amicus briefs supporting the overturning of New York’s gun restrictions.  These organizations argued that the gun-licensing regulation is discriminatory against their clients. The groups represent hundreds of indigent people a year who are criminally charged in New York for gun possession. Virtually all of these clients are Black or Hispanic. One brief states: “For our clients, New York’s licensing regime renders the Second Amendment a legal fiction.” The brief further argued that the regulation effectively criminalizes gun ownership for racial and ethnic minorities, based on its enforcement by police and prosecutors.” And the thing is, the arguments made by these progressive public defender institutions in New York are entirely consistent with my experience defending criminal cases in the District of Columbia–another large city with strict gun laws.  These laws disproportionately criminalize, jail, and punish overwhelmingly African American communities in the city and in many cases the conduct that often leads to arrest, being held without bond, and oftentimes sentenced to prison simply involves gun possession with no other criminal activity alleged. In DC, the crime of carrying a pistol without a license is a felony offense punishable by a maximum penalty of 5 years in jail.  This is the reality in large cities with strict gun regulations like DC, New York, and others.  The police and prosecutors disproportionately use gun laws to criminalize conduct in minority communities that would otherwise be considered common in predominantly white suburban and rural areas—carrying a pistol for self defense. The BRIEF OF THE BLACK ATTORNEYS OF LEGAL AID, THE BRONX DEFENDERS, BROOKLYN DEFENDER SERVICES in particular painstakingly describe this systematic oppression and tell the stories of specific clients they’ve represented, including Jasmine Phillips a combat decorated Iraq war veteran who visited her family in New York from Texas, while parked, New York police surrounded her vehicle, opened her car door, put her in a chokehold, and handcuffed her.  Officers claimed they heard a “tip” she had an illegal firearm. She was charged with violating NY Penal Law 265.03(3), which like DC’s carrying a pistol without a license statute, is considered a violent felony to possess a firearm outside the home without a license.  She was held in Rikers for weeks unable to post bail, lost her job, lost her home, and eventually lost custody of her children–due to a Texas judge citing her violent felony arrest in New York as a basis to deny her custody of her children. The brief describes numerous other situations faced by specific clients who ran afoul of New York’s gun licensing regulations.  Again, this is the reality of large cities with strict gun laws.  In the suburbs you might see a white guy open carrying in a subway and no one bats an eye.  If you live in a predominantly black community and are caught with a pistol, you are arrested, jailed, charged, and often convicted of a felony. So, these public defender organizations urged the court to side with the NY NRA and strike down New York’s special reason requirement.

What did the Supreme Court say about the Second Amendment?

The Court built on previous decisions including District of Columbia v. Heller and McDonald v. Chicago where for the first time it recognized that the Second Amendment through the Fourteenth Amendment protects an individual’s right to bear arms for self defense.  The Heller/McDonald decision’s primary focus was possession in the home and the right to self defense in the home. Bruen expanded the Heller/McDonald ruling to include the right to carry outside the home for self defense.  In my view, this was a correct decision that invalidated arbitrary restrictions on a constitutional right that were often used in a disproportionate and discriminatory manner by punishment bureacrats in large cities.  My experience defending clients from DC’s restrictive gun laws is completely consistent with the compelling arguments and tragic personal stories the progressive public defender organizations eloquently described in their amicus brief.  In short: gun laws are racist and so good riddance to the entire “may issue” regime. That said, the Supreme Court’s reasoning to get to this ultimately, in my view, positive outcome is terrifying.  Because Heller and McDonald did not set out a clear framework to scrutinize what types of gun restrictions are constitutional, several Circuit courts adopted a two part approach to determine whether restriction on gun rights is constitutional.  The first part assessed whether the regulation was deeply rooted in the nation’s history and traditions.  The second part of the test applied ‘means end scrutiny.” Means end scrutiny is a doctrine of constitutional interpretation that has existed for decades.  It goes like this: the Supreme Court decides that a particular constitutional right is fundamental–for example the right to free exercise of religion or free speech.  Once that decision is made, the Court would apply what is called “strict scrutiny”, which means that the law restricting the right by the government must be narrowly tailored to serve a compelling government interest.  The Court applied something called a rational basis test when a government law or restriction does not implicate a so-called “fundamental right.”  A rational basis test requires the plaintiff or person suing to show that the law or regulation is not rationally related to a legitimate government interest. An easier way of looking at this is when the Courts apply strict scrutiny, its very likely they will strike down the regulation as unconstitutional and when they apply rational basis they are very likely to say the law or regulation is constitutional.  Imagine a state government passes a law that says if you speak out against the government, they’ll arrest you.  Right to free speech, which is a fundamental right is implicated, the Court applies strict scrutiny and strikes it down.  On the other hand, the government passes a law that says you have to wear a seatbelt.  The freedom to drive without a seatbelt is not fundamental, so the Court applies rational basis and the regulation is deemed constitutional. What makes the reasoning in Bruen scary is that the Court wholesale abandons means ends scrutiny a doctrine that is around a century old.  Instead, it holds that the only test for whether the government can restrict the Second Amendment is if the restriction is deeply rooted in the nation’s history and traditions, which is great to get to the proper outcome that expands a constitutional right. However, the problem with this approach is several fold.  First, it turns constitutional law and litigation into basically lawyers arguing about history.  And for the record lawyers are not historians.  Our expertise is in applying logic and facts and making compelling arguments–not pontificating on the historical interpretation of primary and secondary source materials like some history professors. The second and most obvious problem with this approach is that there are lots of not so great things deeply rooted in our nation’s history and tradition.  Slavery, Segregation, denying women and non-landowners equal rights are things arguably deeply rooted in our nation’s history and traditions.  In addition, many things deeply rooted in our nation’s history and tradition were deeply rooted because only one group of people–white landowning men–were part of the decision making process.    . If anyone out there, like me, supports the expansion of constitutional and civil rights for the people while simultaneously supports limiting power for the government–this decision, although a proper expansion of a fundamental constitutional right, sets out a new doctrine for interpreting the Constitution that could easily be used to restrict the rights of citizens and expand government power. That is exactly what we saw in the decision overturning Roe v. Wade, which is a topic for an entirely different post.  The decision’s reasoning is also somewhat tortured in that by eliminating the means scrutiny analysis, it elevates the Second Amendment above all other constitutional rights.  For decades, the Supreme Court has chiseled away at important fundamental constitutional rights like the right to be free from unreasonable searches and seizures, the right against self-incrimination, the right to a speedy and public trial, and the right to a jury trial just to name a few.  Rights contained in the Fourth, Fifth, and Sixth Amendments of the Constitution are arguably the most fundamental rights because they restrict the government’s ability to take away our actual liberty.  The Second Amendment is useless if the government can arbitrarily throw you in jail in the name of expediency and being “tough on crime.”

What impact will this have in DC and Maryland?

In any event, Bruen has fundamentally expanded the Second Amendment.  Subsequent to the decision, Maryland Governor Larry Hogan immediately ordered his administration to immediately cease using the “good and substantial” requirement for issuing a wear and carry permit.  That means Maryland is no longer a “may issue” state and is now a “shall issue” state. The impact in DC will take much longer to assess.  As I previously mentioned, Wrenn a DC Circuit case struck down DC’s “special reason” requirement in 2017.  However, DC has a suitability requirement that is ripe for challenge under this new framework.  DC requires an applicant to demonstrate they are suitable to carry a firearm and in that requirement is a discretionary requirement that allows the Chief of police to deny anyone a carry permit who has a “propensity for violence or instability.” There are no guidelines for how to interpret that vague statement, which basically gives the DC chief of police unfettered discretion to deem someone a “suitable person” or as often is the case “not suitable.”  Post-Bruen, this requirement is absolutely ripe for a constitutional challenge. If you or a friend or loved one find yourself arrested or charged under DC’s strict gun laws, contact us today for a consultation.

Joshep S.

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