On June 23, 2022, the Supreme Court of the United States, in New York State Rifle and Pistol Association v. Bruen, overturned a New York gun safety law. The law at issue required New Yorkers who want to carry a handgun in public to show a special need to defend themselves, or “proper cause,” in order to obtain a license. New York courts interpreted the “proper cause” phrase to require applicants to demonstrate more than a general desire to protect themselves or their property. They must demonstrate a “special need” for self-defense, for example, if the individual faced a pattern of physical threats. New York argued that this gun law was an effort to regulate guns in “sensitive places” like crowded urban areas where people are likely to gather. The Court ruled that New York’s law requiring a license to carry concealed weapons in public places is unconstitutional.
This law is similar to laws in at least seven other states. These seven other states combine to make-up twenty-five percent of the population of the United States. Thus, those laws, like the New York law, are in jeopardy of being struck down. For example, two weeks after the Bruen decision, Maryland suspended a law similar to New York’s law. As such, Maryland gun owners are no longer required to prove they have a “good and substantial reason” to obtain a license to carry a concealed weapon.
In California, its law provided local law enforcement with broad discretion to issue or deny Concealed Carry Weapons (CCW) licenses and to require applicants for CCW licenses to demonstrate “good cause” to qualify for such license. Accordingly, many local agencies exercised this discretion by generally issuing CCW licenses only to applicants who identified a particularized safety concern or other unique reason (or “cause”) for wanting to carry deadly weapons in public spaces that differentiated them from the general public. However, the Bruen decision has been interpreted as invalidating these specific aspects of California’s CCW licensing laws. Additionally, on September 14, 2022, D.C. police rescinded a rule from 1975 prohibiting concealed gun licensees from carrying more than twenty rounds of ammunition. Note, the repeal does not affect the District’s magazine capacity cap of ten rounds. Moreover, in New Jersey, acting Attorney General Matthew J. Platkin told prosecutors and law enforcement agencies that the state’s “justifiable need” requirement was no longer enforceable. Platkin emphasized that “the ruling does not change any other aspect of New Jersey’s public carry laws,” which include comprehensive background checks, character references from three people you have known for at least three years, and firearms training.
Accordingly, states and localities are responding swiftly to the Bruen decision – invalidating firearm-related laws that have been on the books for years. Thus, the open question for law enforcement officers and legal practitioners is how will the Bruen decision impact previously decided cases which have unanimously upheld certain restrictions on the public’s possession of guns? Lower courts are now reviewing challenges to existing statutes and regulations pursuant to the mandate in Bruen.
For example, on August 1, 2022, the California Rifle and Pistol Association filed suit to overturn the state’s 1999 Unsafe Handgun Act, which established safety standards for handguns. If a pistol is deemed unsafe, it cannot be sold by licensed dealers. The plaintiffs argue that the regulation would not pass the history-and-tradition test set forth in Bruen. At least two previous attempts to void the law have failed.
In Hawaii, on September 6, 2022, the National Association for Gun Rights filed a lawsuit on behalf of two private citizens challenging the state’s three-decade-old ban on so-called “assault pistols,” which the state defines as a semiautomatic handgun that accepts a detachable magazine and has two or more characteristics typically associated with semiautomatic rifles, including a threaded barrel capable of accepting a flash suppressor or forward hand grip. The suit also seeks to void a ban on the use of magazines that hold more than ten rounds with such pistols. The plaintiffs argue that assault pistols are in common use, and that Bruen “established that there is no tradition of banning commonly possessed arms.” State Attorney General Holly Shikada is named as the defendant in the suit.
In Illinois, on September 7, 2022, the National Association for Gun Rights filed a lawsuit on behalf of a private citizen challenging the city’s nine-year-old ban on semiautomatic rifles and magazines that hold more than ten bullets, which were enacted in response to the 2012 Sandy Hook massacre. The suit comes two months after a gunman used a semiautomatic rifle and three 30-round magazines to kill seven people and wound dozens of others at a Fourth of July parade in the Chicago suburb. Again, the plaintiffs argue that Bruen “established that there is no tradition of banning commonly possessed arms.”
In Tennessee, the state appeals court struck down a ban on guns in public housing, ruling that no historical analogue justifies such a prohibition. A “tenant’s private home,” they wrote, “is not the kind of ‘sensitive place’ where the government may categorically ban firearm possession.”
And in Texas, a federal judge declared it was unconstitutional to disarm someone who is under a protective order. According to the court, banning those under a protective order from possessing a gun infringes on their Second Amendment rights. Thus, the federal statute which makes it a felony for an individual who has an order of protection issued against them is prohibited from possessing a firearm is unconstitutional.
With these new laws and mandates from the courts, there will be an increased prevalence of guns outside and in public places. Because almost anyone of legal age can carry concealed weapons in about half of the states, the threat level to law enforcement – active and retired – rises exponentially. Officers must navigate these changing laws on who may possess firearms and where it is lawful to do so.
Since 2001, Crabbe, Brown & James Managing Partner, Larry H. James, has served as general counsel to the National Fraternal Order of Police. The NFOP is the world’s largest police union serving 365,000 members across more than 2,100 lodges in the United States.