The Supreme Court will soon decide whether Americans have a constitutional right to carry loaded concealed weapons in public and in public places, wherever and whenever they believe they might need their guns for self-defense. Practically, that could mean everywhere and at all times.
The announcement of such an absolute and unfettered right would be shocking and disquieting to most Americans, not just to Americans in the many states where the people, through their elected legislatures, have for centuries restricted the carrying of handguns in public. It would also be concerning to many Americans who support gun rights. They, too, would understandably be unsettled and frightened by the idea that everywhere they went, their fellow citizens might be carrying loaded guns.
At stake in New York State Rifle & Pistol Association v. Bruen is whether the Supreme Court will claim for itself the power to decide where and when Americans can carry loaded handguns in public — a power that the Constitution reserves for the people and their elected representatives.
The court should affirm the constitutionality of New York’s public-carry statute and the other statutes nationwide that limit and restrict the public carry of handguns. The court has a newly reconstituted conservative majority who may want to expand Second Amendment rights and protections. But that would be a mistake in this case because the framers of our Constitution intended the people and their democratically elected legislatures to decide where and when to permit the carry of firearms in public, as they have done for centuries.
The Supreme Court is not constitutionally empowered to make these decisions, and it is ill suited to make them. For the justices to begin deciding for the people exactly where and when a person has a right to carry a handgun in public would be to establish the court as essentially a National Review Board for Public-Carry Regulations, precisely the kind of constitutional commandeering of the democratic process that conservatives and conservative jurists have long lamented in other areas of the law, such as abortion. It would be hypocritical for this conservative court to assume what essentially would be a legislative oversight role over public-carry rights, when conservatives on and off the court have for almost 50 years roundly criticized the court for assuming that same role over abortion rights.
New York isn’t the only state that authorizes local officials to issue residents unrestricted licenses to carry a loaded handgun in public if they show a particular need. (In 2018 and 2019, at least 65 percent of New Yorkers who applied for such an unrestricted license were granted one.) Seven other states have similar statutes. And these are not the only laws that would be rendered unconstitutional by an adverse ruling in Bruen. Most other jurisdictions restrict the carrying of handguns in myriad public places, including schools, courthouses, parks, public transit, restaurants and bars, malls, businesses and houses of worship. These laws restricting public carry would fall, too, were the gun advocates to prevail, as would the District of Columbia’s.
The District of Columbia bans handguns in public in many places — including at or near protests, in broad areas near the Capitol and the White House, and on public transit. Two days before the Capitol riot, the district’s then-acting police chief publicly warned protesters they would be jailed if they brought their handguns to the protest. A large majority heeded his warning and left their guns at home. Had the district’s strict restrictions on public carry not been on the books, there would doubtless have been even more lives lost and more mayhem on Jan. 6 as the rioters tried to prevent the Electoral College vote count that day.
Striking down all of these laws would upend the entire country’s regulatory scheme for the public carry of guns that has been meticulously designed over the course of the past two centuries, laying waste to legislative efforts to curb gun violence in America.
Bruen presents a test for this conservative Supreme Court. As a matter of public policy, some justices might favor an absolute or near-absolute right to carry a handgun in public. But most judges, and certainly conservative judges, believe that their personal policy preferences should not play a role in the interpretation of the Constitution and laws. What is more, centuries of unbroken history and tradition show that there has never been such an unrestricted constitutional right to bear arms outside the home.
Historically and traditionally, legislatures have restricted the public carry of guns, from medieval England to colonial times, through the founding and to the present day. In fact, many of those early laws were more draconian than our own, banning the carry of guns in public places generally, without offering any exceptions like those New York provides for people who can demonstrate an actual need to defend themselves. Those restrictions extended far beyond public locations with a large and continuous armed police presence, such as government buildings and courthouses, to almost any public place — fairs, markets and indeed wherever a person would “go armed.”
Two years ago, then-Judge Amy Coney Barrett called English and founding era statutes “the best historical support for a legislative power” to restrict firearms. Other conservative justices should agree. Here, the early statutes restricting public carry establish that, as originally understood, the right to carry guns either concealed or openly is not only limitable but also has been limited by legislatures from before the beginning of the Republic.
Conservatives, textualists and originalists believe — or should — that the Second Amendment ought not be interpreted to take from the people and their legislatures the historical and traditional authority they have had for centuries to decide where handguns may be carried in public and in public places.
The people and their representatives have responsibly made the decisions where and when to allow the carry of handguns in public since long before our country’s founding. As contemplated by our federalism, the various colonies, states and jurisdictions have regulated and restricted public carry differently, each in response to the different needs of public safety and self-defense in their particular public spaces and locations. Whatever its policy misgivings and temptation, this conservative Supreme Court would be wise, not to mention true to its conservative principles, to leave these decisions for the people and their elected representatives to make — as the framers of our Constitution intended.
J. Michael Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Richard D. Bernstein is an appellate lawyer. With others, they filed an amicus brief in the Supreme Court in support of the State of New York in New York State Rifle & Pistol Association v. Bruen.
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