The Supreme Court is on the verge of deciding its very first gun-carry case, and the impact of its decision could be substantial. The New York Rifle and Pistol Association, backed by the National Rifle Association, is challenging the law that governs how concealed handgun permits are issued in New York. As things stand now, government officials have discretion to decide who has a “good reason” for carrying a gun in most public places. They can, and almost always do, deny applicants, even if they’ve passed the required background check and obtained the necessary training.
This “good reason” standard is rare in the U.S. Only eight states currently allow officials to use their subjective judgement in issuing gun-carry permits. All the other states, and Washington, D.C., either require permits to be issued to anyone who qualifies for them or don’t require any permit at all. However, the eight aforementioned states, including California, Maryland and New Jersey, are some of the most populous in the country: About 25% of Americans live in jurisdictions with “good reason” clauses. The policies are rare, but they still govern a significant number of people.
The plaintiffs in the New York lawsuit argue this subjective “good reason” standard violates the Second Amendment and should be struck down. New York argues it is in line with historical precedent and necessary to ensure public safety. How the Court comes down on the question will directly impact whether millions of Americans can legally carry guns and, perhaps, indirectly impact how all gun litigation proceeds from now on.
Individual Rights vs. Public Safety
Oral arguments in this case occurred on November 3, 2021. While not a crystal ball by any means, they suggest that the reach of the “good reason” clause is likely to change once the Court renders its opinion. The justices appeared to break mostly along partisan lines: The more conservative justices questioned allowing a constitutional right to be denied based on government officials’ subjective judgment, while the more liberal justices questioned the safety of a less restrictive permitting system.
Justice Stephen Breyer framed the question as one of public safety. He argued if more people had permits that allowed them to carry guns in public, more people would be killed. “Is it supposed to say you can carry a concealed gun around the streets or the town or outside just for fun? I mean, they are dangerous, guns,” he said. “The difference, of course, you have a concealed weapon to go hunting. You’re out with an intent to shoot, say, a deer or a rabbit, which has its problems. But, here, when you have a self-defense just for whatever you want to carry a concealed weapon, you go shooting it around and somebody gets killed.”
Justice Brett Kavanaugh framed the issue around the “good reason” clause and asked why New York couldn’t simply adopt a system without it, as most other states have already done. He said he hadn’t seen evidence the more restrictive system actually resulted in improved public safety. “It seems like before you impose more restrictions on individual citizens and infringe their constitutional rights based on this theory, you should have to show, well, in those other states that have shall issue regimes, actually, there is a lot more accidents, crime,” he said. “And I don’t see any real evidence of that.”
Chief Justice John Roberts went further by questioning the idea of permitting at all. “Regardless of what the right is, it would be surprising to have it depend upon a permit system,” he said. “You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.”
However, he also said a less restrictive permitting system may be constitutional. “There’s licensing and there’s licensing,” he said. “Maybe it’s one thing to say we need to check, make sure you don’t have a criminal record, make sure that—all the . . . all the other things you can check on, but not that we assume you don’t have a right to exercise your—your . . . it’s hard to say it without saying it, exercise your right under the Second Amendment, and you’ve got to show us that—that you do.”
The conservatives seemed bothered more by the “good reason” clause than by the idea of requiring gun-carry permits in general. If the Court adopts that reasoning, the ruling will be more limited than one prohibiting any kind of permitting system. But it will still be plenty consequential, especially if it’s combined with a new legal standard to evaluate the constitutionality of gun-carry restrictions.
A New Legal Standard
While the Court established the Second Amendment protects an individual right to keep and bear arms in the landmark Heller and McDonald cases, it did so by striking down an outlier law that banned possession of all handguns. It employed a compromise that rejected traditional balancing tests, such as strict or intermediate scrutiny, for deciding gun cases. These balancing tests are used to determine a law’s constitutionality by evaluating whether the benefits of the law outweigh the limitations it places on an individual right. Strict scrutiny means the benefits must be extremely substantial for the law to be constitutional, while intermediate scrutiny is a more relaxed standard.
While the Court rejected these standards for Second Amendment cases, it didn’t establish a clear standard for deciding future cases. The result has been a mishmash of standards applied by lower courts, one that has led gun-rights activists and justices alike to complain the Court hasn’t done enough to ensure Heller is enforced. This new gun-carry case provides an opportunity to straighten things out.
The “text, history and tradition” standard, first developed by Justice Kavanaugh in a 2011 dissent, is favored by gun-rights activists. It relies on a textualist reading of the Second Amendment, combined with an examination of the history of gun regulations in the U.S., to determine whether a current gun law fits within the American tradition of arms or violates the Constitution. Laws with a lengthy pedigree are more likely to be upheld, while newer restrictions are more at risk—including the New York carry law, which was enacted in the early 20th century.
Kavanaugh isn’t the only one who has employed the standard. Justice Amy Coney Barrett used it in a 2019 dissent. Even the defendants in the New York case, and their supporters, made arguments based on this standard.
Historian Saul Cornell, a gun control proponent who filed a brief in the New York case, argued New York’s law and others like it are “indisputably presumptively lawful” under the text, history and tradition standard. “Reconstruction ushered in a period of expansive regulation,” he wrote. “Courts, legislators, and commentators during this period recognized that the robust power to regulate firearms, particularly in public, was not only constitutional, but essential to preserve ordered liberty. The key innovation in this period, a development that became the dominant model of firearms regulation in America, good cause permit schemes continue to function as an important part of efforts to address the problem of gun violence.”
Plaintiffs disagreed with the Cornell’s conclusion, but the fact that advocates of the “good reason” clause argued in these terms at all provides some insight into where they believe things may be headed. If the Court makes a point to clarify how lower courts ought to decide gun cases, the ruling will have even more impact than whatever the Court decides on gun-carry permitting.
Jake Charles, executive director of Duke University’s Center for Firearms Law, said the Court may be eager to add to the relatively sparse case law on the Second Amendment. But it’s not clear they will all fall in line with the text, history and tradition standard.
“Since we haven’t got a lot of guidance on the Second Amendment, they might want to provide guidance,” Charles told The Reload last year. “We might get some judges looking to the history and coming to one outcome. We might get some judges who are applying tiers of scrutiny, intermediate scrutiny or strict scrutiny, and coming to different conclusions.”
A text, history and tradition standard would make modern gun laws more susceptible to challenge. Federal laws would be particularly vulnerable since none were in place before the 20th century. The consequences would be far-reaching.
The Consequences of ‘Text, History and Tradition’
There are some limitations on the text, history and tradition standard, however. It is not straightforward. Many state gun policies, as New York’s defenders pointed out, go back to the 19th and even 18th centuries, meaning they have history and tradition of their own. In his 2011 dissent, Kavanaugh himself noted that a variety of gun restrictions would likely be upheld under the standard as he was creating it, and he said it would leave more gun laws intact than the strictest balancing test.
“Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny,” he wrote. “After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.”
With many lower courts using intermediate scrutiny—incorrectly, according to gun-rights advocates—to uphold gun control laws, any new standard articulated by the Court would read as a rebuke. It could result in the flood of court wins gun-rights advocates have been anticipating, and gun control advocates have been dreading, since Heller was first decided.
Of course, there is a possibility the Court could punt on the case, as it did in a 2020 case against New York City’s strict gun transportation ordinance. Any ruling that doesn’t strike down the state’s gun-carry law or set a clear standard of review for gun cases may well send the message that the Court is unlikely to pay much attention to the issue moving forward. Lower courts would likely take the ruling as a sign to continue as they have the past decade.
The former scenario seems more realistic than the latter, however, for several reasons. The Court’s decision to take on a significant gun case in the immediate aftermath of the 2020 dismissal implies that it wants to act on the issue. And the replacement of gun-rights skeptic Justice Ruth Bader Ginsburg with Justice Barrett means there are likely more votes to issue an expansive ruling. If the Court sides with the plaintiffs in this case and creates a stricter standard for gun-carry laws, many existing gun control laws will be struck down as unconstitutional, significantly shifting the parameters of the gun control debate in the U.S.