The Supreme Court’s nine fine minds are about to ponder the meaning of a verb. What they decide will have important state and municipal policy consequences. How they decide — their reasoning — might have momentous implications for how the current court construes the Constitution.
The Second Amendment — “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” — includes a 13-word preamble that was not explicitly interpreted until 217 years after the amendment’s ratification in 1791. The court decided in 2008 that the preamble did not mean that the right to possess firearms was conditional on membership in a militia.
Thirteen years have passed since this ruling that the amendment guarantees an individual right, independent of militia membership. But the particular right at issue in 2008 was the right to keep a functioning handgun in one’s home for self-defense. Now, the court must construe one of the amendment’s 14 other words: “bear.”
On Wednesday, the court will hear oral arguments in a challenge to a New York statute, essentially unchanged since 1913, which requires people seeking a license to carry gunsoutside their home to demonstrate a “proper cause.” The statute does not define this, but in practice the state says it means an “actual and articulable” need for self-protection, a criterion that New York officials apply to few New Yorkers.
Hawaii is one of seven states with laws similar to New York’s, and last March the U.S. Court of Appeals for the 9th Circuit, noting a long tradition of governments regulating “firearms in the public square,” ruled (7 to 4) that Hawaii’s law is constitutional because there is no Second Amendment right “to carry arms openly.” Five years ago, the 9th Circuit, which includes 67 million Americans, said the same about concealed carrying. A scathing dissent in March said the 9th Circuit “has decided that the Second Amendment does not mean what it says.”
No other circuit has been so bold; other circuits have disagreed to varying extents. So, the Supreme Court must bring some regularity to a nation where in 2020 almost 20 million Americans had concealed-carry permits, and today at least 21 states generally allow concealed guns to be carried without a permit.
Briefs supporting and opposing New York have excavated historical examples of laws protecting, and laws circumscribing, the right to carry guns in public. Even 19th century Tombstone, Arizona, when it was a wilder part of the Wild West than it wanted to be, required new arrivals to deposit their guns at the edge of town, or to register them with the sheriff.
But 25 Republican U.S. senators say these various laws, which illustrate the history of legislatures balancing gun rights and consideration of public safety, are irrelevant because such legislative balancing is impermissible. The senators’ amicus brief says the Second Amendment’s framers did the balancing with finality: They decided that the benefits of guaranteeing the right to bear arms “outweigh” any costs, and by writing this judgment into the Constitution they precluded any future legislature from adopting a different risk-benefit calculation. Bearing arms is a right “the people” enjoy without seeking permission; it is not a “mere privilege” for a few government-favored categories of people. The senators say the right to “bear” as well as “keep” arms means that the amendment’s framers meant the right to apply “both at home and out in the world.” This “constitutional choice made in 1791” stands until the Constitution is amended.
The senators’ argument has a beguiling clarity that essentially eliminates the need for, or possibility of, making policy judgments. It must, however, accommodate what Justice Antonin Scalia, writing for the majority, said in 2008: Nothing “in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Furthermore, the opinion protected the sort of weapons “in common use” when the amendment was ratified, and acknowledged “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
So, some balancing of the Second Amendment individual right with concerns about public safety, although supposedly proscribed in 1791, was contemplated in 2008. It would be astonishing for the court to say, when it decides New York’s case, this: The individual right first explicitly affirmed in 2008 is unique among constitutional rights in being absolutely immune from limits.