Restoring the Right to Bear Arms: New York State Rifle & Pistol Association v. Bruen

Abstract

This article explains the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen. Under Bruen, a person applying for a concealed handgun carry permit need not prove some unique need, distinct from the general risk of crime.

Part I briefly summarizes the Supreme Court's treatment of the Second Amendment from the Miller case in 1939 to Heller in 2008 and McDonald in 2010.

Part II describes the Supreme Court's torpor in taking Second Amendment cases in 2011-21.

Part III explicates Bruen's legal standards of review for the Second Amendment, based on text, history, and tradition. Bruen's subrules show how the government may meet its burden of proof, the "how" and "why" of potential historical analogies, the relative importance of different historical periods, and permissible controls on bearing arms. Part III also discusses the three concurring opinions in Bruen, and the dissent.

Part IV looks at the post-Bruen legal landscape. First, how the six states directly affected by the case are responding. Second, at three cert. petitions that were granted, vacated, and remanded after Bruen--involving bans on magazines or on common firearms. Finally, the current gun control laws that are most likely and least likely to be successfully changed under Bruen's standards.

Keywords: Second Amendment, New York State Rifle and Pistol Associaton v. Bruen, standard of review

JEL Classification: K14, K19, K39