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The Second Amendment Protects the Right to Carry for Self-Defense.

The Supreme Court has affirmed the second amendment Constitutional right to carry a firearm in public for self defense.

While that’s the major headline, there’s an even bigger Easter egg to unpack for American gun rights tucked inside.

Concealed Carry - CCW

Justice Clarence Thomas authored the New York State Rifle and Pistol Association v. Bruen opinion released Thursday, June 23, 2022. While the big story is the official affirmation of right to carry in the United States, the rest of the opinion expounds on another very important decision that groups like Firearms Policy Coalition will be able to use to shut down gun control laws in the future.

In the past, Justice Thomas has opined about the second amendment being relegated to a second class right because it is politically ‘disfavored’. Indeed it is the case that courts routinely judge 2A cases by different standards than other enumerated rights. We used some analogies to demonstrate the legal absurdity at work in our first post about this case during its argument period. If we applied that same low bar to infringement on other rights, we would live in an arbitrary and capricious legal system where our enumerated rights are afforded only to those in the political and economic aristocracy. Exercising other enumerated rights in this way such as the first, fourth, and fifth amendments would be so convoluted as to be contradictory and effectively destroyed.

It’s operated this way for a long time in deep blue states like New York, California, Hawaii, and a few others that have hung on to unconstitutional ‘may issue’ regimes. A truck driver would never be allowed a carry permit, but anyone that’s rich, famous, or politically-connected was given one.

But NYSRPA v. Bruen provided a great test case for clarifying to lower courts how they should handle second amendment cases in the future, as well. While Heller and McDonald stopped short of demanding any particular level of scrutiny applying to second amendment cases, NYSRPA categorically rejected interest-balancing tests of any kind. Since Heller, lower courts have used a two-stop approach to an interest-balancing test to decide whether clear infringements on the second amendment are worthy of legal muster. Lower courts have routinely used this interest balancing approach to allow purely speculative and demonstrably false reasoning to stand up in court when state and municipal governments write gun control laws.

Interest-Balancing Tests

 

Interest-balancing tests are common when governing bodies are sued for violating real or perceived rights of the people. In ascending order of difficulty for government bodies to defend, these interest-balancing tests are as follows:

To pass the  rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals.

To pass  intermediate scrutiny, the challenged law must:
  1. further an important government interest
  2. and must do so by means that are substantially related to that interest.

To pass  strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.

The lowest level, known as Rational Basis, allows a government body to enforce a law based on almost no evidence at all. In an extreme example, a total ban on private firearms ownership might be permitted because the state in question wants to minimize firearms crimes (if we didn’t have Heller).

Intermediate Scrutiny has functioned as an evidence-based approach to de facto use of Rational Basis in many courts. For example, a government body would offer the evidence that gun crimes decreased in the wake of total confiscation, regardless of the obvious issue of violent crime being completely unaffected by this. Despite the overwhelming evidence that these kinds of laws don’t work in a way that actually matters, it would probably be allowed to exist because the government has the advantage of framing the argument on their own terms.

Strict Scrutiny has been the dream of gun rights advocates for a long time. Strict Scrutiny would demand that any court decision on a case that rests upon the second amendment must be narrowly tailored to achieve a compelling government interest. That is to say, it infringes on the core of the right to an absolutely minimal degree while simultaneously achieving its stated goal. For example, we could look at the ban on convicted felons owning and possessing firearms as something that might pass such a test. While we can argue about the moral justification for such a thing given that felonies are being handed out like Halloween candy today for all kinds of non-violent crimes, it passes the Strict Scrutiny legal sniff test by removing weapons from the hands of those proven not to be trusted while leaving the rights of law-abiding citizens unaffected.

These interest-balancing tests have given the upper hand to government bodies over the people of the United States since each one allows the government the presumption of Constitutionality until proven otherwise, plus the advantage of a judicial shrug at any evidence offered by the offended that such laws don’t even work as intended. The only thing that really matters in each of these tests is that the government desired a particular outcome, regardless of whether or not it was achieved. With that said, Strict Scrutiny has been used in the past to judge laws against other enumerated rights. For the most part, it requires a judge to view most of what the government has to offer with substantially greater suspicion than intermediate or rational basis, providing a strong path for the protection of second amendment rights on the whole.

Judge's Gavel

Today, the Supreme Court put to rest all interest-balancing tests for second amendment cases. Like other enumerated rights, the second amendment has been restored to full power with a text and history approach demanded of lower courts. That is, a regulation or prohibition may be constitutional if there is a historical precedent that operates under original meaning of the second amendment as clarified by HellerMcDonald, and others.

To pass legal muster under a text and history approach, any gun control law must simultaneously meet most of the standard demanded by strict scrutiny, but must also rest upon an analogous law from anglo-American history that passed legal muster at the time of its enforcement while not infringing on the core rights of the individual American to purchase, own, and carry firearms outside the home for self defense.

(a) In District of Columbia v. Heller, 554 U. S. 570, and McDonald v. Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. Pp. 8–22.

(1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.

(2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field. McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people,” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. Pp. 15–17.

(3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.

Conclusion

 

This is a bar far higher for the government than strict scrutiny alone, and second amendment advocates can rejoice in this clarification creating judicial precedent for lower courts to determine the constitutionality of any current or future gun control laws. Now the government’s assertion that a law is intended to achieve a compelling goal–even if it actually works and is narrowly tailored–isn’t necessarily enough to pass legal muster if there is no historical parallel for its enactment as intended by our founders. Now we’ll just have to answer other important questions such as so-called ‘assault weapons,’ body armor, magazine capacity limits, and more.