The Second Amendment Right to Bear Arms
By Robert Phillips, Deputy District Attorney (Ret).
Ruling: State statutes restricting a law-abiding adult citizens’ right to keep and bear arms by requiring a showing of “proper cause” violate the Second and Fourteenth Amendments, U.S. Supreme Court decision says.
Discussion: I periodically get asked why I haven’t briefed the U.S. Supreme Court’s latest pronouncement supporting the right to carry a concealed firearm under the Second Amendment; i.e., New York State Rifle & Pistol Association v. Bruen (June 23, 2022) __ U.S. __ [142 S.Ct. 2111; 213 L.Ed.2nd 387].
The simple answer is (1) this new case has nothing to do with search and seizure law upon which I concentrate, and (2) the decision is long (some 70 pages) and complicated, defying any mortal human being’s ability to fully comprehend.
But because I’ve received a number of requests to make the attempt, and because Bruen is likely to have a profound effect on California’s restrictive firearms laws, I have relented and agreed to at least compromise, writing this Editorial/Admin Note.
Bruen is a 6-3 decision authored by Justice Clarence Thomas, overturning a decision out of New York (see N.Y. State Rifle & Pistol Association v. Beach (2nd Cir. N.Y. Aug. 16, 2020) 818 Fed. Appx. 99.). In Bruen, the Supreme Court ruled that the petitioners (“two ordinary, law-abiding, adult citizens”) were unlawfully denied their right to “bear” arms – violating their Second (“keep and bear arms”) and Fourteenth (“due process”) Amendment rights – when they were told that they didn’t qualify for a permit to carry firearms (whether concealed or exposed) outside the home.
In their respective petitions, the two New York residents alleged only that they wished to carry firearms for general self-protection, failing to note any specific threats to their well-being. New York determined that this was not enough, denying their petitions. The U.S. Supreme Court disagreed.
In his written decision, Justice Thomas notes that only six states (which include New York and California; see Cal. Penal Code § 26150) and the District of Columbia have what are referred to as “may issue” licensing laws, under which authorities have the discretion to deny concealed-carry licenses even when the applicant has satisfied that jurisdiction’s statutory “law-abiding, adult citizen” criteria. (In California, a sheriff “may issue” a CCW permit only if the applicant shows “good cause” for the issuance of the license. See subdivision (a)(2) of section 26150.)
In New York, an individual who wants to carry a firearm outside his home (whether concealed or openly exposed) may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if, and only if, he can prove that “proper cause exists” for doing so. New York’s issuing authority has an amazing amount of discretion in deciding whether “proper cause” exists, commonly denying gun owners’ petitions.
Referring to New York’s requirements for obtaining an unrestricted license, the Supreme Court ruled that as written and applied, New York’s statutes violated the two petitioners’ Second and Fourteenth Amendment rights. The Court held that when determining the constitutionality of a state’s firearms statutes under the Second Amendment, it is required that the government be able to show that the regulation at issue “is consistent with the nation’s historical tradition of firearm regulation.” In applying this test, the Court found that “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
Is California’s Law Next?
The Court provides us with a long and excruciatingly painful historical review of the Second Amendment since its inception in 1791, as well as the Fourteenth Amendment’s due process clause enacted in 1868. The bottom line, as ruled by the Court, is that New York’s restrictive firearms concealed and open carry statutes fail to pass the smell test. One can make the same argument that when tested, California’s concealed carry statutes may suffer the same fate. But that, of course, remains to be seen.