Is the Right to Carry about to be Federally Recognized?


Legislative Alert: Supreme Court Holds Oral Arguments in New York State Rifle and Pistol Association v. Bruen

One November 3, 2021, the Supreme Court heard oral arguments in a Second Amendment dispute that could have a major impact on state laws restricting the carrying of concealed firearms outside the home. The case, New York State Rifle and Pistol Association v. Bruen, challenges New York state’s 108-year-old handgun licensing law. The Court has not issued a ruling on the Second Amendment since the McDonald case in 2010 following its landmark decision in Heller in 2008. The Heller decision confirmed that the Second Amendment protects an individual right to keep and bear arms, regardless of service in an organized militia. The McDonald decision held that states and local governments, not just the federal government, are required to respect that right.

The New York law at issue in Bruen is like gun-control measures in several other states, including California, Hawaii, Maryland, Massachusetts, and New Jersey. Various cities also have similar ordinances. The law requires anyone who wants a license to carry a concealed firearm outside the home to show “proper cause” before a license will be granted. Courts in New York, and in the various other states with similar licensing schemes, require the applicants to show a “special need” to defend themselves. As an example, a person who has not been the target of repeated physical threats would be denied a license. As such, the New York law resulted in the presumptive denial of most applications, with only those showing an “extraordinary need” for self defense that distinguishes them from the general population are eligible for a license. The practical result was that the right was treated like a privilege for only the few.

The challengers to the New York law argued that the Second Amendment enshrines a right to bear arms, and the history and traditions of the United States confirm that the text of the amendment protects an individual right to carry a firearm for self-defense. Carrying a firearm outside the home is a fundamental right that 43 other states respect and it is unconstitutional to be required to satisfy a government licensing official that you have an “extraordinary need” to exercise it.

During oral argument the court’s conservative justices seemed sympathetic to a broad application of the right but also seemed sympathetic to certain carry restrictions in “sensitive areas” such as courthouses, schools, and airports. As to be expected, the more liberal members of the court expressed support the New York licensing scheme and suggested that the case be sent back down to the lower courts for a more fact finding regarding how often and under what circumstances New York officials grant licenses.

While it is impossible to predict the outcome of the case, it appears the Court is poised to issue another landmark decision interpreting the Second Amendment that could very well clarify the extent to which the amendment protects an individual’s right to carry a firearm outside the home. A decision is expected in early summer 2022.


"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."
- Thomas Jefferson

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