| New York State Rifle &Pistol Association, et. al. vs Bruin, Superintendent of New York State Police, et.al. 818 Fed. Appx. 99, reversed and remanded. | |||||
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| Syllabus html |
Opinion [Thomas] (html) | (pdf) |
Concur [Alito] html |
Concur [Kavanaugh] html |
Concur [Barrett] html |
Dissent [Breyer] html |
KAVANAUGH, J., concurring
v.
No. 20-843. Argued November 3, 2021-Decided June 23, 2022
JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE joins, concurring.
The Court employs and elaborates on the text, history, and tradition test that Heller and McDonald require for evaluating whether a government regulation infringes on the Second Amendment right to possess and carry guns for self-defense. See District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). Applying that test, the Court correctly holds that New York’s outlier "may-issue" licensing regime for carrying handguns for self-defense violates the Second Amendment.
I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision. First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as "shall-issue" regimes—that are employed in 43 States.
The Court’s decision addresses only the unusual discretionary licensing regimes, known as "may-issue" regimes, that are employed by 6 States including New York. As the Court explains, New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense. Those features of New York’s regime-the unchanneled discretion for licensing officials and the special-need requirement—in effect deny the right to carry handguns for self-defense to many "ordinary, law-abiding citizens." Ante, at 1; see also Heller, 554 U. S., at 635. The Court has held that "individual self-defense is ‘the central component’ of the Second Amendment right." McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599). New York’s law is inconsistent with the Second Amendment right to possess and carry handguns for self-defense.
By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements. Brief for Arizona et al. as Amici Curiae 7. Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice. Tr. of Oral Arg. 50−51.
Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.
Second, as Heller and McDonald established and the Court today again explains, the Second Amendment "is neither a regulatory straightjacket nor a regulatory blank check." Ante, at 21. Properly interpreted, the Second Amendment allows a "variety" of gun regulations. Heller, 554 U. S., at 636. As Justice Scalia wrote in his opinion for the Court in Heller, and JUSTICE ALITO reiterated in relevant part in the principal opinion in McDonald:
"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]
"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Heller, 554 U. S., at 626−627, and n. 26 (citations and quotation marks omitted); see also McDonald, 561 U. S., at 786 (plurality opinion).
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With those additional comments, I join the opinion of the Court.