June 27, 2022

By Caitlyn R. Culbertson

In 1905, the State of New York adopted a law requiring all persons desiring to carry a concealed firearm to obtain a license, and that to obtain a license an applicant had to demonstrate a “proper-cause” or special need for self-protection.  On June 23, 2022, the United States Supreme Court struck down that law. In its 6-3 ruling, written by Justice Clarence Thomas, the Court concluded that New York’s 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.

In District of Columbia v. Heller, 554 U. S. 570 (2008), the Supreme Court interpreted the Second Amendment to protect the right of law-abiding citizens to possess a handgun in the home for self-defense. Subsequently, in McDonald v. Chicago, 561 U. S. 742 (2010), the Supreme Court held that the Second Amendment was incorporated under the Fourteenth Amendment, thereby prohibiting States and municipalities from infringing on individuals’ Second Amendment rights.  Prior to the Court’s June 23, 2022 ruling, the Supreme Court had never addressed whether the Second Amendment protected the right of an ordinary, law-abiding citizen to carry a concealed handgun for self-defense outside of the home. Now, the Court has confirmed that Second Amendment protection extends beyond the home to protect an individual’s right to carry a concealed handgun for self-defense in public.

The Court also rejected the standard two-part test that lower courts have traditionally used to review challenges to gun-control measures: (1) whether a gun restriction regulates conduct protected by the original scope of the Second Amendment; and (2) whether the restriction is fine-tuned to advance a significant public interest. Instead, the Court held that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The burden is then placed on the government to demonstrate that the regulation is consistent with the historical tradition of firearm regulation for that regulation to stand.

Thus, unless a State or municipality implementing a firearm regulation that directly implicates the right to bear arms can demonstrate that that regulation is consistent with the nation’s historical precedent of firearms regulations in existence at the time of adoption of the Second Amendment, the regulation is unconstitutional.

Applying this new and more stringent standard to the New York proper-cause requirement, the Court found that the desire to carry a concealed handgun in public for self-defense fit within the conduct protected by the Second Amendment. After reviewing nearly seven centuries of historical sources, beginning in the 1200s and going through the early 1900s, the Court determined that although U.S. history has at times placed certain “well-defined restrictions” on the right to carry firearms in public, federal, State, and local governments have not broadly prohibited the public carry of commonly used firearms for personal defense.

The Court found that because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, the State’s licensing regime violates the Constitution. The Court concluded that the Second Amendment is not a second-class right, subject to a different body of rules than other Bill of Rights guarantees and that the Court knows “of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.” The Court then held that New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.

In an effort to support New York’s rule and protect its own ability to enact gun regulations, the City of Chicago took the lead in preparing an amicus brief on behalf of Chicago and 11 other local governments. Chicago argued, unsuccessfully, that Chicago’s enforcement of various state and local firearms regulations “produces results” and “take hundreds of criminals and thousands of firearms off the streets each year.” Although acknowledging the recent “uptick in urban violence,” Chicago argued that the situation would be even worse if the Court relaxed concealed-carry requirements.

Importantly, the Court distinguished New York’s “special need” requirement from what are known as “shall issue” jurisdictions.  In Illinois, along with 42 other states, licenses to carry firearms are issued based on objective criteria. A concealed-carry license must be issued once an applicant satisfies certain threshold requirements.  There is no discretion to deny licenses based on a perceived lack of a special need or suitability. Thus, the Supreme Court did not invalidate the concealed carry regulations in Illinois and the 42 other States that have “shall issue” laws. Justice Kavanaugh specifically pointed this out in his concurring opinion.

Because of the Court’s decision to allow only those firearm regulations that are consistent with the historical tradition of firearm regulation in the United States, it appears likely that challenges will be brought against a variety of state and local firearm regulations, including those that do not impose a “special need” requirement.

The full text of the Supreme Court decision can be found at this link.  For more information about this case, contact Caitlyn Culbertson or any Elrod Friedman attorney.