What did the Supreme Court say in New York State Rifle & Pistol Association v. Bruen?

0:04After McDonald, essentially, the Supreme Court went quiet on the Second Amendment for over a decade. They granted cert in a case called Bruen, which had to do with a licensing law in the State of New York. The State of New York, since the prohibition era, that had a regulation that said that if you wanted to have a permit to carry a firearm, a pistol, on your person for purposes of self defense, you needed to show some kind of proper cause.

0:39You needed to show some reason why you want it. It wasn't enough to go to the licensing authority and just say, I want a gun. You had to explain, I carry a lot of money, I'm a subject to personal threats or whatever. Two individuals from upstate New York challenged this regulation, saying that it violated their Second Amendment rights, and in a 63 decision, a decision that was written by Justice Clarence Thomas, the Court agreed with the challengers and said, yes, a discretionary licensing law, like the state of New York had violates the Second Amendment right to bear arms for personal purposes like self defense. That was the narrow issue, and that was a pretty big issue because even though there were only about five or six states that had a law like New York, they represented about 25% of the American population,

1:35and certainly represented those states that tend to have fairly dense urban areas like California or like New York, with New York City, or Los Angeles and so forth. The sleeper issue or the issue that I was paying attention to as a scholar of the Second Amendment, was not only about the permitting regulation which was struck down, but more importantly, how the court would go about deciding how you even decide whether something is a Second Amendment violation or not.

2:06The lower courts had converged on this kind of coverage and protection analysis. Are we even dealing with the Second Amendment question, and if we are, how much protection does the Second Amendment offered for the conduct in question? In Bruen, the Court said that this was not a permissible way of applying or analyzing Second Amendment cases and imposed its own two-part test. The first part says, "If we are dealing with some kind of conduct that falls within the plain text of the Second Amendment, then the conduct is presumptively protected. If it is presumptively protected, then it is up to the party that is defending the regulation, often the government, to show that the regulation isn't just effective in some way, but that it actually comports with a tradition of American gun regulation historically." This was a huge issue because it wasn't just about licensing now that is subject to this two-part analysis.

3:07Now it's everything from, do persons that are convicted of battery or violent crimes have Second Amendment rights? Are things like AR-15s protected under the Second Amendment. It raises some really, really difficult questions. The example that I often give is, it wasn't until about the early 1960s that the federal government regulated a loaded handgun in a person's carry on luggage on a jet airplane, so how are you supposed to think about a long tradition of regulation of firearms, on jet planes when the idea of even flying is inconceivable to somebody in 1791 when the Second Amendment is ratified? So it has huge implications that are still actually being worked out.