What To Know Today
NEW from THE TRACE: SCOTUS strikes down New York gun permit law. In a 6-3 ruling, the court struck down the state’s law requiring applicants to demonstrate a special need to obtain a concealed carry handgun permit. The ruling is likely to imperil at least five other states with similar discretionary laws and is also the first time that the court has held that the Second Amendment confers a right for people to carry a gun in public. (In 2008’s District of Columbia v. Heller, the court identified that right for the home.) Writing for the majority, Justice Clarence Thomas argued that people have a two-part right to “keep” guns in their homes and “bear” them in public. The court did not go as far as calling into question all gun licensing schemes, including in the 43 states that have “shall-issue” permitting laws, but it did leave the door open for challenges. Chip Brownlee and Jennifer Mascia have the story.
The ruling’s new standard for how courts assess gun laws puts many restrictions at risk. Until now, lower courts have fashioned their own “two-step test” test through which to run Second Amendment challenges, and that has meant considering a local government’s justifications for enacting a gun regulation — for instance, public safety concerns. The Bruen decision changes all of that by instructing federal courts to adopt a so-called history and tradition test. We wrote in 2020 about what such a shift would mean: “This ‘text, history, and tradition’ test calls on courts to ask only one question: Is there some kind of historical precedent for a current gun law? If the answer is yes, then the court should uphold the gun regulation as constitutional. If the answer is no, then the court must strike down the gun regulation.”
How will courts interpret “history and tradition” for gun laws? The Bruen case will set off a scramble by states to amend laws to avoid a slew of expected gun rights challenges over discretionary permit laws and many other local restrictions. “It’s not entirely clear what it will look like in practice, but it is clear that courts are not going to be able to take into account things that they have done under the current framework,” Jake Charles, head of the Duke Center for Firearms Law, told us. “They’re not going to be concerned about things like, ‘Does this law actually reduce gun violence?’ Lead lawyers who successfully argued the Bruen case departed from their law firm. Former Solicitor General Paul Clement and litigator Erin Murphy said they would form their own firm after Chicago-based Kirkland & Ellis announced it would stop handling gun cases after Bruen.
New York leaders scramble to consider alternative options for limiting guns in public. NYC Mayor Eric Adams and Governor Kathy Hochul haveworried the ruling could dramatically increase public carrying in crowded spots like Times Square or the subway. One option city officials are now exploring is a law that would declare any area with more than 10,000 people per square mile a “sensitive location” where handguns will still be prohibited, The City reports in a piece we re-published. The Bruen ruling left open gun bans on sensitive locations, though a new law with a broad scope being considered in New York City would likely draw fresh lawsuits. Hochul also said Friday she was calling for a special legislative session next week.
New York’s law is still in place….for now. While the decision invalidates the state’s permit law, the Supreme Court will send its decision back down to lower federal courts that are likely to give New York State a grace period to amend its law, The New York Times reports. In the meantime, New York City Police Commissioner Keechant Sewell said that nothing has changed yet: “If you carry a gun illegally in New York City you will be arrested.”
Senate approves bipartisan gun reform bill. In a 65 to 33 vote, the Senate passed the Bipartisan Safer Communities Act, a wide-ranging bill that addresses the so-called boyfriend loophole, clarifies which gun sellers need to seek a Federal Firearms License (thus requiring more background checks), and mandates an enhanced background check process for gun purchasers between the ages of 18 and 21. It is the first significant gun reform bill to make it out of the Senate in nearly three decades. The bill would also provide $750 million to states to enact and support red flag laws and other crisis intervention programs, $250 million in funding for community violence intervention efforts, at least $2.35 billion for schools, and more than $1 billion in funding for mental health programs. It would also stiffen penalties for and create a federal statute that specifically covers interstate gun trafficking and straw purchasing. (Read more on what’s in the Senate bill here.) Fifteen Republicans joined every Democrat in voting for the bill, which now heads to the House, where Speaker Nancy Pelosi promised a swift vote.
SCOTUS decision casts a legal shadow on this bill, too. “The court’s Second Amendment ruling calls into question key parts of the Senate gun bill,” said gun law expert Adam Winkler. “[Supreme Court Justice Clarence] Thomas says only gun regulations consistent with historical regulation of guns are permissible. Red flag laws, however, are a modern invention. So too bans on domestic abusers.”
House budget setters want to increase what the feds spend on gun violence research. The House Appropriations Committee released a draft FY2023 funding bill that includes an increase in funding levels for gun injury/mortality prevention research, with $35 million for the CDC ($23 million above the last year’s enacted level), and $25 million for the National Institutes of Health (an increase of $12.5 million above the FY2022). Those figures could still change.
Data Point
About 25 percent — the share of the U.S. population represented by the eight states — California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New York, and New Jersey — that have discretionary “may-issue” gun permitting rules for concealed carrying. [The Reload]
