A New Dawn for Gun Rights in America?

Delivering a 6-3 majority opinion in New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas reaffirmed that the Second Amendment includes the right to carry a gun outside the home. This case – which is already under heavy fire from politicos and the left-leaning Fourth Estate – is as significant for constitutional rights as District of Columbia v. Heller was in 2008. But what does it mean for everyday Americans, and how will this ruling change the gun-rights world?

Liberty Nation’s managing editor, Mark Angelides, spoke with Legal Affairs Editor Scott D. Cosenza to examine the ramifications of this long-awaited Supreme Court opinion and determine whether it truly represents a sea change for gun rights in America.

Mark Angelides: Scott, this case was about New York’s gun carry permitting process; why does it have a national impact?

Scott D. Cosenza: It’s because New York’s “may issue” process, which allows state regulators to enact a de facto ban on concealed carry in the state, was on trial. For instance, all jurisdictions in the US, like California, will have to abandon similar schemes.

MA: Does this mean that states with laws that require justification for acquiring a concealed carry permit will have to fall in line? Essentially, I’m asking, will it be easier for folks to get a license to carry, assuming they can tick all the other boxes required by the city, county, or state?

SDC: Yes! All places with “may issue” permits are now required to change. It might take a little while, but it should be more like days or weeks than months for states to obey the law and grant licenses to all qualified applicants. We should expect these jurisdictions, which are incredibly hostile to people wanting to exercise gun rights, to suddenly increase what counts as “qualified.” Of course, as in all civil rights struggles, there will be those who refuse to comply with the Court’s opinions in spirit, if not in letter.

MA: In 2008, Heller established by a 5-4 majority that the Second Amendment protects an individual’s right to bear arms, overturning DC’s handgun ban – a landmark case. How does New York State Rifle & Pistol Association v. Bruen compare in terms of its significance?

SDC: While we won’t be able to say definitively without looking backward at its application, the potential is enormous. Heller established the right to keep and bear arms as an individual one, which may make obvious sense to you and me, but was not widely recognized in the law. Then the McDonald case applied that ruling against the state government. With New York State Rifle & Pistol, we have two significant leaps forward. The first is the establishment of the right to carry outside the home. This case says that legally carrying a firearm is normal and that laws impinging upon the right to do so will be greeted with hostility from the Court.

The second issue, and just as consequential, is the level of scrutiny under which gun laws should be reviewed. Justice Thomas wrote that an often-seen two-part test that favors restrictive legislation is inappropriate and that stricter scrutiny must be used. Many gun regulations and laws having nothing to do with licensure will be stricken down due to this.

MA: I think many people are wondering what will happen next. What will happen in New York, and on what kind of timescale?

SDC: We’ve seen statements by the mayor of New York City and the governor, none of which give confidence they will faithfully implement the Court’s order. I would expect some politicians will benefit from being seen as fighting until their last breath to keep the people disarmed. They will be rebuked by the courts, consistent with this opinion.

MA: Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented from this opinion. What were their main objections to the majority?

SDC: Justice Breyer is the only one who wrote a dissent, so we can only say for sure about him. Breyer’s dissent is a textbook lesson in what a “living constitution” judicial mindset looks like. He goes on about recent mass shootings and gun homicides for quite a while. How could that be relevant to what the Second Amendment guarantees? Well, for lefty legal minds, that may change day to day, or perhaps to be fairer, decade to decade. Justice Alito’s concurrence with the majority seems written expressly to rebuke Breyer's opinion.

MA: Is this a new dawn in America for the Second Amendment, Scott?

SDC: I keep pinching myself to see if it’s a dream.