On Thursday, the Supreme Court struck down New York’s 109-year-old gun control law and signaled a significant change in the court’s approach to interpreting the Second Amendment. In brief, it set out a new more stringent legal standard that courts must use when analyzing the constitutionality of gun control measures.
This is a significantly limited approach to the Second Amendment which will make it harder for states and even the federal government to impose new gun control measures.
Justice Clarence Thomas, writing for a 6-3 majority of the court, concluded that New York’s handgun licensing law, which requires that people who apply for a license to carry a concealed handgun in New York demonstrate “proper cause,” violates the Second Amendment. Proper cause here is a heightened standard which requires that applicants do more than merely state they need the handgun for self-defense; they must show a special need for self-defense. Six members of the court decided this standard was too demanding of applicants in light of the Second Amendment rights at issue.
But Chief Justice John Roberts and Justice Brett Kavanaugh made clear in concurring opinions that this ruling only touches New York’s law which is described as a “may issue” law. This means government officials have discretion over whether to issue a permit even after an applicant satisfies certain requirements. The concurring justices emphasized that this ruling does not affect so-called “shall issue” laws, which provide that government officials must issue concealed carry permits once certain objective criteria are satisfied.
The court’s opinion dictates that Second Amendment cases must be analyzed under a strict originalist perspective. That means a legal standard which relies only on the text of the Second Amendment, as informed by history. In other words, the court’s decision means we do not take current circumstances into account when analyzing issues of gun control. This is a significantly limited approach to the Second Amendment which will make it harder for states and even the federal government to impose new gun control measures.
The court emphasized that the Second Amendment enshrines “the right of the people to keep and bear arms.” This includes the right to carry a gun outside of your home for self-defense without going through the type of permitting process required by New York and about half a dozen other states. The court painted New York’s law as an outlier, noting that while seven states have “may issue” laws, 43 states have “shall issue” laws. Again, these now-illegal permitting schemes require that even after certain requirements are met, a government official still has discretion to deny the permit.
This is the court’s first big Second Amendment decision since its landmark 2008 decision in District of Columbia v. Heller, where the court concluded that the right to bear arms belongs to individuals, not just members of the military, and that this right includes the ability to keep guns in your home for self-defense.
The division between the majority and dissenting opinions is yet another example of our two competing camps of constitutional interpretation. The division between the majority and dissenting opinions is yet another example of our two competing camps of constitutional interpretation. The majority of Supreme Court justices concluded that the best way to interpret constitutional provisions is first to look only at the text; and then if more analysis is needed, to determine what the text meant at the time it was adopted, and to largely ignore any subsequent historical practices and understandings. When it comes to the Second Amendment, that essentially means the most important part of your search for meaning ends in 1791, when the Bill of Rights was ratified. As the majority noted, we can also look to historical practice in 1898, when the 14th Amendment was ratified. This is because the restrictions contained in the Second Amendment apply to states and localities via the 14th Amendment. Justice Stephen Breyer, writing for the liberal dissenters, would allow more modern understandings of what constitutional provisions mean to help inform its inquiry. Breyer argued that the courts must be able to “consider the government interests that justify a challenged gun regulation, and not merely rely on centuries’ old historical practice.” More than a decade since its last big Second Amendment ruling, the court has signaled a change in how we interpret any challenges to gun control measures. While New York’s law is fairly narrow and deals only with permitting requirements to carry concealed weapons outside the home, the court’s new test will make it more difficult to uphold different kinds of state and federal gun control measures. The ruling here may sound fairly narrow, but it may be a harbinger of larger things to come.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
