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Abstract
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New York State Rifle & Pistol Association, Inc. v. Bruen is a major change to Second Amendment jurisprudence and could eventually lead to large-scale changes in the U.S. firearm regulatory landscape. Nevertheless, key ambiguities and contradictions in the decision and its concurring opinions lead the authors to conclude that sharp departures from the regulatory regimes currently pursued by states are unlikely until new cases are heard by the Supreme Court that resolve those ambiguities. Therefore, states wishing to impose restrictive firearm regulations will continue to be able to do so, though sometimes in modified ways, and those wishing to make their laws more permissive will similarly find arguments under Bruen to support that course. Although the Bruen decision limits the role of science and contemporary evidence in influencing how firearm regulations are evaluated, there are some limited empirical questions for which research could still help inform future court decisions on the regulation of firearms.
Key Insights
Bruen is a major change to Second Amendment jurisprudence and could eventually lead to large-scale changes in the U.S. firearm regulatory landscape. Nevertheless, key ambiguities and contradictions in the decision and its concurring opinions lead us to conclude that sharp departures from the regulatory regimes currently pursued by states are unlikely until new cases are heard by the Supreme Court that resolve those ambiguities. Therefore, states wishing to impose restrictive firearm regulations will continue to be able to do so, though sometimes in modified ways, and those wishing to make their laws more permissive will similarly find arguments under Bruen to support that course.
In addition, we conclude the following:
• The Court's determination that New York state's concealed carry law was unconstitutional was narrowly focused on the use of subjective discretionary standards in issuing permits and seems to explicitly allow for states to use objective suitability and perhaps even good moral character standards that could serve similar risk management objectives as the former discretionary standards.
• Because the decision allows states to enact permitting systems that use objective standards for eligibility, state regulations that set objective training and competency standards for the acquisition, use, and carrying of firearms may be defensible under Bruen.
• Although the decision allows that firearms can be banned from certain sensitive places, no clear guidance on how to determine the legitimacy of such regulations was offered in Bruen, meaning that states wishing to broaden or limit bans on firearms in sensitive places may be able to justify their choices.
• Although prohibitions against gun possession by, for instance, children, those posing a risk to themselves or others, and those dishonorably discharged from the military could well be challenged on the basis of Bruen's new method for evaluating Second Amendment claims, the Court again seems unlikely to reject most regulations specifying those who are prohibited from gun ownership.
• Because the Court emphasizes that weapons in common use cannot be considered dangerous and unusual, technologies that a state wishes to prohibit may need to be banned before they are in wide circulation.
Finally, although the Bruen decision limits the role of science and contemporary evidence in influencing how firearm regulations are evaluated, there are some limited empirical questions for which research could still help inform future court decisions on the regulation of firearms |