The Slow March of Gun Rights

Until the Heller decision (2008), the last 30 or 40 years had seen gun rights advance slowly through political, as opposed to judicial, means. Today, most states have liberalized laws and regulations restricting the acquisition, ownership, possession, carrying, and use of guns. (Some have become more restrictive.)

Recently, the advance of gun rights has also happened in the courts.

The Heller case is probably the most momentous 2nd Amendment case ever. For the first time in Supreme Court history, it clearly states that the right to keep and bear arms is an individual right, not just a collective one for “militias.” But the District of Columbia law that it struck down was a near complete ban on private ownership, possession, and use of guns, including guns in your own home. It was the perfect case to allow the Court to evade the question of less stringent government regulation of gun rights. While it confirmed individual rights, the Court didn’t need to say much about what limitations on those rights might be allowed. Even slightly less restrictive laws might be permissible.

Naturally, a lot of litigation followed. Now, more than ten years later, the Court is deliberating on a case about gun rights outside the home. I listened to excerpts from the oral arguments in the case (New York State Rifle & Pistol Association Inc. v. Bruen), and I’m going to dare to predict the Court’s decision.

In a single state, the likelihood of issuance can vary dramatically from county to county. In some cities, a handful of privileged people get licenses but nobody else.

New York is one of a minority of states that require a license to carry a gun outside the home and restrict the issuance of the license to people who meet numerous criteria and also demonstrate some sort of special need or “proper cause” for the license. One reason why gun rights advocates hate these regimes is that their enforcement appears arbitrary — the office of a bureaucrat or official of some sort, such as a sheriff, decides whether the applicant’s cause is “proper.” In a single state, the likelihood of issuance can vary dramatically from county to county. In some cities, it seems that a handful of privileged people get licenses but nobody else.

I believe the Court will upend these rules, gently. It will say that, although the right may be regulated, the 2nd Amendment right to bear arms is not limited to the home and that New York’s regulation of that right is not reasonable. Rules that, based on reasonable criteria, deny a few people (felons, those who fail to complete a safety course) the right to carry will be allowed. Rules that deny the right to most people and give the licensing authority a lot of discretion in the decision will not be allowed. And when issued, licenses to carry guns may reasonably restrict where they may be carried, for example post offices, courthouses, airports, campuses, etc.

If I’m right about the shape of the Court’s decision, there will be much more litigation to answer open questions. Can governments force applicants to wait for years, to obtain letters about their character, to permit extensive investigation, to post a bond? Can the geographical restrictions on issued licenses exclude carrying on public transport; in sports venues, restaurants, and bars; while driving; or after having a single drink?

A more interesting question will arise if legislators in illiberal states are smart. Can a government allow open carry, with a licensing requirement and various restrictions, while completely banning concealed carry? I believe that the Court’s answer and the right answer to that question, under the Constitution, would be yes. The 2nd Amendment doesn’t say anything about concealment of firearms. But the question will probably never be asked.