“Courts must be permitted to consider the State’s interest in preventing gun violence” Read SCOTUS Dissent on New York Gun Law being declared unconstitutional for violating 2nd Amendment

Supreme Court of The United States: In a crucial decision, the SCOTUS while deliberating upon New York’s “proper cause” requirement to possess a concealed firearm; declared with an overwhelming ratio of 6:3 that, the “proper-cause” requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

This decision by the Court assumes a lot of significance, given the current discourse in the country revolving around several mass shootings and the Second Amendment.

The Laws in question

• The New York Penal Law makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed pistol or revolver if he can prove that “proper cause exists” for doing so. An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community” [N.Y. Penal Law Ann. §400.00(2)(f)]

• The Second Amendment of the US Constitution states that a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.¹

• The Fourteenth Amendment of the US Constitution deals with multiple aspects of citizenship and the rights of citizens.²

The Dissent: Justice Stephen Breyer along with Sonia Sotomayor and Elena Kagan, JJ., filed a dissenting opinion. The judges cited relevant records and pointed out that in 2020 alone, around 45,222 Americans were killed by firearms and since the start of 2022, there have been 277 reported mass shootings. The Judges quoted a relevant report which had observed that- “Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents”.

Other salient observations made by the dissenting Judges are as follows-

• Noting that ever since the rise in cases of mass shooting, there are many States that are trying to address the dangers of gun violence by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. However, the majority opinion in the instant matter severely burdens States’ efforts to do so. In their opinion, the Judges included not only the recent spate of mass shootings in Philadelphia, Pennsylvania; an elementary school in Uvalde, Texas; a supermarket in Buffalo, New York, But many other instances highlighting the rising number and intensity of the cases.

  “The Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in practice”.

• The Judges also stated that when courts interpret the Second Amendment, it is constitutionally proper, and often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. They also noted that mass shootings are just one dimension of the problem; easy access to firearms can also make many other aspects of American life more dangerous — like cases of road rage and domestic violence to name a few.

• It was further pointed out that most officers who are killed in the line of duty are killed by firearms; and that the officers in States with high rates of gun ownership are three times as likely to be killed in the line of duty as officers in States with low rates of gun ownership. “The presence of a gun in the hands of a civilian poses a risk to both officers and civilians”.

• “Question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts”. The Judges opined that the Second Amendment allows States to take account of the serious problems posed by gun violence. Therefore, it is concerning that the majority’s interpretation ignores the significant dangers and leaves the States without the ability to address them.

  “Question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes”.

• Regarding the interpretation of “proper-cause” requisite in the New York penal law, the Judges observed that the words ‘proper-cause’ may appear on their face to be broad, but there is a substantial body of law instructing licensing officials on the application of this standard. New York courts have interpreted proper cause to include instances like “carrying a handgun for target practice, hunting, or self-defense”. When an applicant seeks a license for target practice or hunting, he must show ‘a sincere desire to participate in target shooting and hunting’. The dissenting Judges further noted that counsels for the respondents have presented substantial data justifying the State’s decision to retain a “may issue” licensing regime. The data shows that stricter gun regulations are associated with lower rates of firearm-related death and injury.

• The dissenting Judges pointed out that the majority Judges had an incomplete picture of number of States with “may issue” licensing regime as it accounts for only the number of such States and not the number of people governed by those regimes. The seven “may issue” jurisdictions are New York, California, Hawaii, Maryland, Massachusetts, New Jersey, and the District of Columbia. Together, these seven jurisdictions comprise about 84.4 million people and account for over a quarter of the country’s population; i.e., to say that these jurisdictions are among the most densely populated in the United States. Densely populated urban areas face different kinds and degrees of dangers from gun violence than rural areas. “It is thus easy to see why the seven “may issue” jurisdictions might choose to regulate firearm carriage more strictly than other States”.

• The dissenting Judges also questioned as to how the majority struck the impugned law without first considering how it actually works on the ground and what purposes it serves. They stated that the majority had misread District of Columbia v. Heller 2008 SCC OnLine US SC 63, and in an unusual manner, relied only on its history-only approach. The Judges pointed out that beyond this historical inquiry, the majority refused to employ what it calls “means-end scrutiny”. That is, it refused to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest.

  “The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish.

• The dissenting opinion stated that the Court is bound by Heller case insofar as it interpreted the Second Amendment to protect an individual right to possess a firearm for self-defense. “But Heller recognized that this right was not without limits and could appropriately be subject to government regulation.

In an impassioned conclusion, the Judges opined that this Court is not comprised of historians; however, the detailed study of history by the majority Judges seems to establish a robust tradition of regulations restricting the public carriage of concealed firearms. “It is appropriate in such circumstances to look beyond history and engage in what the Court calls means-to-end scrutiny. Courts must be permitted to consider the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives”.

“I cannot agree with the Court’s decision to strike New York’s law down without allowing for discovery or the development of any evidentiary record, without considering the State’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision, I respectfully dissent”.

[New York State Rifle and Pistol Association v. Bruen, 2022 SCC OnLine US SC 8, decided on 23-06-2022]