Supreme Court’s gun proliferation ruling masquerading as constitutional interpretation

Concealed Carry

For more than 100 years, New York has had a gun safety law that bars the concealed carry of a firearm without a permit and requires good cause to obtain the permit. Studies show laws such as New York’s and the six other states have saved lives.

The Supreme Court struck it down anyway last week in New York Rifle & Pistol Association v. Bruen. The decision is deeply flawed. The court ignores the plain language of the Second Amendment and the historical tradition, which it says it is bound to follow. And the decision makes no sense as a matter of policy. It will leave our nation materially less safe.

There is no sugarcoating the fact that studies show ending such laws leads to many more unnecessary gun deaths and injuries, as this decision does. But that is apparently of no consequence. The decision does not even mention those studies. It does not say a word about the increasing gun violence or its countless victims. Even Heller, the 2008 case that established (many would aptly say “invented”) the constitutional right to carry a firearm for self-defense at home, said, “We are aware of the problem of handgun violence in this country, and we take seriously the concerns[.]” Now, in contrast, when the problem is so much worse, Justice Samuel Alito goes out of his way to chastise the three dissenters for reminding us of the awful carnage.

In its haste to expand the Second Amendment, and limit the ability of federal and state governments to enact gun safety measures opposed by the gun rights groups, the court violates its own fundamental rule of judicial restraint. Chief Justice John Roberts explained in the recent Dobbs decision that it is established practice “not to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” But the majority, including Roberts, does just that in New York Rifle & Pistol Association v. Bruen.

The question presented by the NRA affiliate in its brief was “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” If the court was true to its word and actually respected the historical tradition, the answer should have been easy. The court explains that the scope of the Second Amendment, as applied to the states, should be based on the understanding in 1868, when the Fourteenth Amendment was enacted.

Well, as the court also acknowledges, and Heller said, “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The Bruen majority also concedes that “In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons.” Concealed carry simply was not barred by the Second Amendment. If the court was true to its word and actually respected historical tradition, it should have stopped there and denied the NRA affiliate’s appeal.

The New York law also requires a good cause permit for those who want to carry a firearm openly — like the cowboys of the Wild West wearing pistols in their holsters in the movies. But there was no need for the court to consider that aspect of the law because the petitioners did not apply for open carry licenses. The court addresses it anyway, and it ruled “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

That ruling is untenable, particularly for the six-member majority who repeatedly proclaim they apply the text of the Constitution and are not sitting as an unelected legislature making political decisions. The Second Amendment actually says, “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.” It does not mention “self-defense” or concealed carry. Both are simple concepts. If either was the purpose or object of the Second Amendment, it would have been easy enough to say so. Instead, the framers said the purpose was a “well-regulated Militia” that was “necessary to the security of a free State.” Maybe that is why the majority opinion does not even quote the full one sentence text of the Amendment.

The majority writes that “reliance on history to inform the meaning of constitutional text” is “more legitimate, and more administrable,” than allowing judges “to make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” because of their “lack [of] expertise in the field.” That is a convenient excuse to ignore the evidence that gun safety measures save lives. But it is incorrect.

Judges make judgments of this sort. They have no less expertise to do so than to weigh the historical evidence. The Bruen dissent points out that true historians have shown Heller was wrong about the purported “history” on which it grounded its assertion that the Second Amendment creates a right to have a handgun at home in the first place.

But the majority does not address that. Although those justices revisit precedent when it suits them, Heller’s misinterpretation of the Second Amendment, and its mistaken cherry-picking of the historical evidence, are for them apparently sacrosanct.

The majority’s explanation of historic tradition is as unpersuasive as Heller’s. Ironically, it tries to distinguish relevant statutes as being designed to prohibit bearing arms “in a way that spreads ‘fear’ or ‘terror’ among the people.” But that is exactly what the New York law is designed to do. What law-abiding citizen does not feel fear and terror at the prospect of thousands of people walking the streets of New York carrying concealed firearms. Most would prefer open carry, if they had to choose, so they could stay as far away as possible. The Deputy Police Commissioner of New York City said the court’s ruling could turn New York into the “wild, wild East” and that “The mayor, the police commissioner, and every police officer has a grave concern that putting more guns on the streets of New York is not going to come to a good end.”

But the court’s solution to the fact that there are already so many guns in this country is to have still more. The Second Amendment, whose purpose was to permit the states to have militias to protect the security of the states, will instead become a mutual destruction pact that undermines the security of the states.

Gun rights groups, including the NRA, now even more emboldened, will likely try to eliminate other gun safety laws and regulations. But they should remember that a court that so easily ignores precedent when its membership changes can do so again and restore the Second Amendment to what the framers actually wrote and the historical tradition actually requires.

Michael J. Dell, a New York City resident, was a founding director of Americans for Firearm Injury Reduction in Medicine. He co-authored an amicus brief for the American Medical Association, the Medical Society of New York, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry in support of New York’s concealed carry law.

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