By: Nicholas Alois[*]
Published: January 31, 2023
I. INTRODUCTION
The United States Supreme Court has regularly decided important issues relating to the constitutional rights of Americans, and Second Amendment issues are no exception.[1] The lack of uniformity between states regarding concealed carry laws—some requiring licenses to carry a concealed weapon, and some, like Texas and Ohio, allowing citizens to carry a concealed weapon without a permit or license—has caused confusion among Americans.[2] New York’s proper-cause requirement to obtain a concealed carry license, which formerly stated that “[a] license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued . . . without regard to employment or place of possession, by any person when proper cause exists for the issuance therefor,”[3] found its way to the Supreme Court this summer in New York State Rifle and Pistol Association, Inc., v. Bruen.[4]
In Bruen, the Court held that New York’s proper-cause requirement violated the Fourteenth Amendment because it did not allow residents to obtain a concealed carry permit for “ordinary self-defense needs,” a right given by the Second Amendment.[5] In “one of the most significant decisions to be issued on the Second Amendment in over a decade,”[6] the Court “clarif[ied] and . . . curtail[ed] the permissible scope of gun control.”[7] Yet, despite the Court’s decision, New York subsequently enacted laws with both strict application requirements to obtain a license and limits on where concealed weapons can be carried, which appear to be unconstitutional in light of Bruen.[8] Still, with rampant gun violence in American society, a balance needs to be struck between Second Amendment rights and personal safety.[9] This is where Pennsylvania’s concealed carry law may provide some guidance.[10]
II. BACKGROUND
New York’s proper-cause requirement has been heavily litigated in both state[11] and federal court.[12] Classified as a may-issue state based on the proper cause element, what seemed a simple statutory provision caused headaches for nearly all those seeking a concealed carry permit in New York.[13] This element essentially barred concealed carry license applicants from receiving such a license, even if the reason for seeking the license was for protection and self-defense.[14]
New York is in the minority when it comes to being a may-issue jurisdiction, with only New Jersey, Massachusetts, the District of Columbia, Maryland, California, and Hawaii enacting similar legislation.[15] In these may-issue states, an applicant may meet all the statutory criteria to obtain a concealed carry license, but can nevertheless be denied a license in the licensing authority’s discretion.[16] A majority of states, however, utilize a shall-issue approach to issuing concealed carry licenses.[17] Under this regime, there is no discretion in issuing such licenses.[18] Rather, in these 43 jurisdictions, if an applicant meets the criteria set forth in the statute for obtaining a concealed carry license, they must be given a license.[19]
Prior to Bruen, New York’s statute for obtaining a concealed carry license stated that “[a] license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued . . . without regard to employment or place of possession, by any person when proper cause exists for the issuance therefor.”[20] In Bruen, the petitioners, Brandon Koch and Robert Nash, were given a restricted license to carry for hunting and target purposes, but were denied the right to carry a handgun for self-defense because the licensing officer did not find proper cause to issue an unrestricted license.[21] The petitioners sought declaratory and injunctive relief, hoping to be able to carry a pistol without any restrictions.[22] Both the Northern District of New York and the Second Circuit dismissed the claim, reasoning that the proper cause element is constitutional because it was “substantially related to the achievement of an important governmental interest.”[23] Denied the relief they sought, the petitioners appealed to the Supreme Court.[24]
After granting certiorari, the Court chose not to adopt the two-prong test traditionally used by lower courts for assessing Second Amendment challenges.[25] Under this test, the government must first “establish[] that the challenged law regulates activity falling outside the scope of the right as originally understood.”[26] Then, courts analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”[27] But instead of using this test, the Court stated that “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms” for a concealed carry statute to not run afoul of the Second Amendment.[28] In heavy reliance on District of Columbia v. Heller[29] and McDonald v. City of Chicago,[30] the Court explained that it would look to see “whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” to assess Second Amendment claims.[31] The Court reasoned that the term “bear” must include the right to carry outside the home because most gun owners “keep,” not bear, weapons while in their home.[32] New York’s proper-cause requirement, however, did not pass this test because there is no “distinction” in the Second Amendment regarding the right to keep and bear arms inside or outside of the home.[33] Thus, the Court struck down New York’s proper-cause requirement.[34]
III. ANALYSIS
The Court’s ruling in Bruen is a step towards ensuring constitutional rights are protected for all Americans.[35] Allowing the government significant discretion in determining whether individuals can exercise their Second Amendment rights severely impacts their constitutional freedoms.[36] Indeed, if an applicant meets the statutory criteria, there exists no reason that the applicant’s entitlement to concealed carry should remain up to discretion.[37] The Second Amendment was not drafted to limit Americans’ ability to carry outside their home.[38] Rather, it was created with the underlying rationale of self-defense,[39] and self-defense is not limited to one’s dwelling.[40] Particularly, the Amendment allows Americans to not only “keep,” but also “bear” arms, and it is difficult to envision a world where Americans can carry and bear weapons only in the confines of their own home.[41]
Yet, despite Bruen, New York enacted new legislation to regulate concealed carry in the state.[42] Most notably, the new law prohibits carrying a gun in a “sensitive location,” which includes places of worship, public parks, zoos, and Times Square.[43] This new legislation, however, encompasses areas that are beyond the historical scope of sensitive places like schools and government buildings.[44] In fact, Bruen explicitly stated that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”[45] Therefore, New York’s new legislation seems to be at odds with the Bruen.[46]
Considering the Court’s Bruen decision and New York’s response, it is important to understand that modern society is much different than at the time of the Constitution’s creation.[47] For example, in 2020, of the 24,576 murders in the United States, 19,384 of them involved a firearm, encompassing 79% of murders in the United States.[48] But, at the same time, states implementing a shall-issue approach have seen a reduction in violent crime, as compared to states under a may-issue regime.[49] Perhaps, then, a line needs to be drawn in balancing Second Amendment rights and modern society.
Pennsylvania’s concealed carry law may shed light on where the line should be drawn.[50] In Pennsylvania, a concealed carry license applicant shall be given a license if “it appears that the applicant is an individual concerning whom no good cause exists to deny the license.”[51] However, this statute also takes into account the danger that limited gun regulation poses to society by denying concealed carry licenses to individuals whose “character and reputation [are] such that [they] would be likely to act in a manner dangerous to public safety.”[52] Lawmakers in all jurisdictions must proceed prudently and adapt to our ever-changing society to find a balance that allows Americans to exercise their constitutional rights while also ensuring the safety of all of society.[53] In light of Bruen, New York and other may-issue jurisdictions should turn to laws like Pennsylvania’s to re-draft their concealed carry statutes.
IV. CONCLUSION
For years, New Yorkers struggled to obtain a concealed carry license due to New York’s proper-cause requirement.[54] With the Supreme Court in Bruen finding that the proper-cause element violated the Fourteenth Amendment, New York eliminated this language from its statute.[55] Post-Bruen, jurisdictions falling under the may-issue approach should look to follow the shall-issue approach when it comes to issuing concealed carry licenses.[56] However, lawmakers must understand the interplay of concealed carry laws and a society suffering from profuse gun violence in drafting gun legislation.[57] The Supreme Court’s decision protected Second Amendment rights, but it is now up to legislators to find the proper balance between Second Amendment freedoms and gun safety.[58] And Pennsylvania’s concealed carry law might just strike that balance.[59]
Footnotes
[1] See Jenny Hua, The Supreme Court Rejects Abortion Rights and Gun License Restrictions, Orange Cnty. Bar Ass’n (Oct 2022), https://bit.ly/3vXbzgS.
[2] See David Zachary Kaufman, Firearms at Home, in Your Office, on Your Person, 32 Experience 27, 28 (2022).
[3] N.Y. Penal Law § 400.00(2)(f) (McKinney 2022), invalidated by N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
[4] See Bruen, 142 S. Ct. at 2122.
[5] See id. at 2156.
[6] Margaret J. Finerty, The Supreme Court’s Bruen Decision and Its Impact: What Comes Next, N.Y. St. Bar Ass’n (Aug. 9, 2022), https://bit.ly/3iuD0vh.
[7] Gabriella Kamran, Note, The Things We Bear: On Guns, Abortion, and Substantive Due Process, 23 Geo. J. Gender & L. 479, 481 (2022).
[8] See Mark W. Smith, NYSRPA v. Bruen: A Supreme Court Victory for the Right to Keep and Bear Arms—and a Strong Rebuke to “Inferior Courts,” Harv. J.L. & Pub. Pol’y Per Curiam, Summer 2022, at 1, 3-4.
[9] See infra Part III.
[10] See infra Part III.
[11] See, e.g., O’Brien v. Keegan, 663 N.E.2d 316, 316–17 (N.Y. 1996).
[12] See, e.g., Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 84 (2d Cir. 2012); N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 883 F.3d 45, 52 (2d Cir. 2018), vacated, 140 S. Ct. 1525 (2020); Libertarian Party of Erie Cnty. v. Cuomo, 970 F.3d 106, 113 (2d Cir. 2020).
[13] See Smith, supra note 8, at 2, 4.
[14] See Jill K. Sanders, SCOTUS Strikes “Proper Cause” Requirement in NY Gun Licensing Law, Pappalardo & Pappalardo, https://bit.ly/3RexlXp (last visited Jan. 27, 2023).
[15] See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2124 (2022).
[16] See id. at 2123-24.
[17] See id. at 2123.
[18] See id.
[19] See id.
[20] N.Y. Penal Law § 400.00(2)(f) (McKinney 2022), invalidated by Bruen, 142 S. Ct. 2111.
[21] See Bruen, 142 S. Ct. at 2125.
[22] See id.
[23] Id. (quoting Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012)).
[24] See id.
[25] See id. at 2125-26.
[26] Id. at 2126 (quoting Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)).
[27] Id. (quoting Kanter, 919 F.3d at 441).
[28] Id. at 2127.
[29] District of Columbia v. Heller, 554 U.S. 570 (2008).
[30] McDonald v. City of Chicago, 561 U.S. 742 (2010).
[31] Bruen, 142 S. Ct. at 2131.
[32] See id. at 2134.
[33] See id.
[34] See id. at 2156.
[35] See Smith, supra note 8, at 1.
[36] See id.
[37] See id. at 5.
[38] See Brian Enright, Note, The Constitutional “Terra Incognita” of Discretionary Concealed Carry Laws, 2015 U. Ill. L. Rev. 909, 931–32 (2015).
[39] See id. at 931.
[40] See Megan Ruebsamen, Note, The Gun-Shy Commonwealth: Self-Defense and Concealed Carry in Post-Heller Massachusetts, 18 Suffolk J. Trial & App. Advoc. 55, 77 (2013).
[41] See Enright, supra note 38, at 932.
[42] See Finerty, supra note 6.
[43] See N.Y. Penal Law § 265.01-e (McKinney 2022).
[44] See Smith, supra note 8, at 3.
[45] N.Y. St. Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2134 (2022).
[46] See Smith, supra note 8, at 3.
[47] See id. at 8.
[48] John Gramlich, What the Data Says about Gun Deaths in the US, Pew Rsch. Ctr. (Feb. 3, 2022), https://pewrsr.ch/3Ju95OO.
[49] See James Bishop, Note, Hidden or on the Hip: The Right(s) to Carry After Heller, 97 Cornell L. Rev. 907, 922–23 (2012).
[50] See 18 Pa. Stat. and Cons. Stat. Ann. § 6109(e)(1) (West 2011).
[51] Id.
[52] Id. § 6109(e)(1)(i).
[53] See Enright, supra note 38, at 952–53.
[54] See supra Part II.
[55] See supra Part II.
[56] See supra Part III.
[57] See supra Part III.
[58] See supra Part III.
[59] See supra Part III.
About the Author
Nicholas Alois is a first-year J.D. candidate at Penn State Law. Originally from Lake Grove, New York, Nicholas graduated summa cum laude from St. John’s University with a Bachelor of Science in Finance. Before enrolling at Penn State Law, Nicholas worked as a legal assistant for Wiese and Aydiner, PLLC, and interned with Forte Construction Corp. Nicholas accepted a position with the Suffolk County District Attorney’s Office for this summer.
Suggested Citation: Nicholas Alois, A “New” New York After Bruen, Penn St. L. Rev.: F. Blog (Jan. 31, 2023), https://www.pennstatelawreview.org/the-forum/a-new-new-york-after-bruen/.