This month, June of 2022, the Supreme Court of the United States, in the case of NYSRPA v Bruen, will hold that you have a fundamental individual right to carry a firearm for self-defense outside of your home, in public. Not that you don’t already have that right — it’s just taken SCOTUS 231 years to recognize what is plain to everyone in our Second Amendment (“right of the people to keep and bear arms”).
I am sure of this, not because I am a member of the Supreme Court Bar (I am) or professionally involved with the case, but because like many Americans I watched the oral arguments online. From those arguments it seems clear where the majority stands on the existence of the right and the lack of any rationale for curtailing the right to the home only. Also, there are rumors that Clarence Thomas will be writing the opinion, which is a very good sign as he is the most dependable judicial conservative. It seems that all the scholars, left and right, pretty much agree that the Court will expand Second Amendment protection beyond the home.
The biggest question seems to be not whether the ruling will be good for the Second Amendment, but HOW good. This is the issue of standard of review. After more than a decade of ambiguity and circuit confusion under Heller and McDonald, SCOTUS will almost certainly adopt a particular standard of review to guide Second Amendment jurisprudence. If it adopts a so-called “intermediate standard” or balancing test, then we could have decades of continued gameplaying by the Ninth and similar circuits (although the Ninth is not as bad as it used to be), decades of rulings that continue to deny history, reality, and common sense. If, on the other hand, the court mandates use of “strict scrutiny” under which the government must have a compelling interest to infringe (“shall not infringe” notwithstanding), then we will have a sea change in this area of law extending far beyond right to carry. And the right to carry will be better protected against legislation carving out no-carry “victim disarmament” zones.
Even if we don’t get strict scrutiny, just getting the right to carry outside the home will be a boon politically. Have you thought about the earthquake this will cause here in California? Right now, most people think it’s impossible to get a CCW in California, even though the reality is that the vast majority of counties (even LA) have gotten much better at issuing. Hype from this ruling will educate people at least enough to know they can carry, and that will make a huge difference. (Whether a permit may be required or not remains to be seen once the ruling is out.) Demographics and political strata may undergo a tectonic shift. People that fled California may return, and others that never would consider even visiting may decide to move here. Hispanics and other minorities in urban areas, many of whom I know for a fact have carried for years without a CCW to protect themselves and their families (and I respect them for this), may suddenly become more openly engaged in gun culture and train with other gun owners. I’m not sure the Republican Party here is smart enough to take advantage of this shift (based on the stunning lack of respect for Ukrainian life shown by many GOP candidates), but the shift is coming and some party will take advantage of that somehow. The Second Amendment is about to become VERY popular. Actually, it already is but it will soon be so popular there will be no denying it.
I still think there is more support in history and law for the position that open carry is the fundamental right. I also think open carry is better policy (better deterrence, more accountability, less concern about “sensitive places”, etc.). Concealed carry is sort of a ghetto for gun owners, tucking us away where no one can see us, and there is no accountability to make sure we are actually satisfying our moral duty to carry, and doing so properly. Open carry is ultrasound for the Second Amendment. (I coined this phrase.) And if SCOTUS were ever to hold open carry to be the fundamental right, then every legislature in the country would immediately pass shall-issue concealed carry just to avoid seeing guns everywhere. (This actually happened in Ohio, after the state supreme court ruled in favor of open carry.) There is a chance for such a holding here, which would be bad for NYSRPA, but everyone seems to think Thomas will craft a ruling that treats any carry, open or concealed, as a fundamental right. Concealed carry will always invite limits, especially in “sensitive areas”, and there will be ongoing cases for decades regarding these limits; so my guess is that Thomas might adopt a split standard of review, intermediate for concealed carry and in dicta suggest strict scrutiny for open carry. But we can all hope for a broad application of strict scrutiny.
Regardless of what exact type of ruling we get, the tide turns this month and soon everyone you know will be hearing more and more about bearing arms, and many will be thinking seriously about doing so to protect themselves and their families.
Are you ready? Are you trained? Success tip: The training never ends. And that’s a good thing, because it’s fun!
We offer free concealed carry training in our office, and virtually. Start here: http://guntrust.org
