New York State Rife & Pistol Association v. Bruen, Superintendent of New York State Police, et al.

The State of New York makes it a crime to possess a firearm without a

license, whether inside or outside the home. An individual who wants

to carry a firearm outside his home may obtain an unrestricted license

to "have and carry” a concealed "pistol or revolver” if he can prove that

"proper cause exists” for doing so. N. Y. Penal Law Ann. §400.00(2)(f ).

An applicant satisfies the "proper cause” requirement only if he can

"demonstrate a special need for self-protection distinguishable from

that of the general community.” E.g., In re Klenosky, 75 App. Div. 2d

793, 428 N. Y. S. 2d 256, 257.



Petitioners Brandon Koch and Robert Nash are adult, law-abiding

New York residents who both applied for unrestricted licenses to carry

a handgun in public based on their generalized interest in self-defense.

The State denied both of their applications for unrestricted licenses,

allegedly because Koch and Nash failed to satisfy the "proper cause”

requirement. Petitioners then sued respondents—state officials who

oversee the processing of licensing applications—for declaratory and

injunctive relief, alleging that respondents violated their Second and

Fourteenth Amendment rights by denying their unrestricted-license

applications for failure to demonstrate a unique need for self-defense.

The District Court dismissed petitioners' complaint and the Court of

Appeals affirmed. Both courts relied on the Second Circuit's prior de-

cision in Kachalsky v. County of Westchester, 701 F. 3d 81, which had

sustained New York's proper-cause standard, holding that the require-

ment was "substantially related to the achievement of an important

governmental interest.” Id., at 96.



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Held: New York's proper-cause requirement violates the Fourteenth

Amendment by preventing law-abiding citizens with ordinary self-de-

fense needs from exercising their Second Amendment right to keep and

bear arms in public for self-defense. Pp. 8–63.



(a) In District of Columbia v. Heller, 554 U. S. 570, and McDonald v.

Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth

Amendments protect an individual right to keep and bear arms for

self-defense. Under Heller, when the Second Amendment's plain text

covers an individual's conduct, the Constitution presumptively pro-

tects that conduct, and to justify a firearm regulation the government

must demonstrate that the regulation is consistent with the Nation's

historical tradition of firearm regulation. Pp. 8–22.

(1) Since Heller and McDonald, the Courts of Appeals have devel-

oped a "two-step” framework for analyzing Second Amendment chal-

lenges that combines history with means-end scrutiny. The Court re-

jects that two-part approach as having one step too many. Step one is

broadly consistent with Heller, which demands a test rooted in the Sec-

ond Amendment's text, as informed by history. But Heller and McDon-

ald do not support a second step that applies means-end scrutiny in

the Second Amendment context. Heller's methodology centered on

constitutional text and history. It did not invoke any means-end test

such as strict or intermediate scrutiny, and it expressly rejected any

interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.

(2) Historical analysis can sometimes be difficult and nuanced,

but reliance on history to inform the meaning of constitutional text is

more legitimate, and more administrable, than asking judges to "make

difficult empirical judgments” about "the costs and benefits of firearms

restrictions,” especially given their "lack [of] expertise” in the field.

McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts

tasked with making difficult empirical judgments regarding firearm

regulations under the banner of "intermediate scrutiny” often defer to

the determinations of legislatures. While judicial deference to legisla-

tive interest balancing is understandable—and, elsewhere, appropri-

ate—it is not deference that the Constitution demands here. The Sec-

ond Amendment "is the very product of an interest balancing by the

people,” and it "surely elevates above all other interests the right of

law-abiding, responsible citizens to use arms” for self-defense. Heller,

554 U. S., at 635. Pp. 15–17.



(3) The test that the Court set forth in Heller and applies today

requires courts to assess whether modern firearms regulations are

consistent with the Second Amendment's text and historical under-

standing. Of course, the regulatory challenges posed by firearms today

are not always the same as those that preoccupied the Founders in

1791 or the Reconstruction generation in 1868. But the Constitution



3Cite as: 597 U. S. ____ (2022)



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can, and must, apply to circumstances beyond those the Founders spe-

cifically anticipated, even though its meaning is fixed according to the

understandings of those who ratified it. See, e.g., United States v.

Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller

at least one way in which the Second Amendment's historically fixed

meaning applies to new circumstances: Its reference to "arms” does not

apply "only [to] those arms in existence in the 18th century.” 554 U. S.,

at 582.



To determine whether a firearm regulation is consistent with the

Second Amendment, Heller and McDonald point toward at least two

relevant metrics: first, whether modern and historical regulations im-

pose a comparable burden on the right of armed self-defense, and sec-

ond, whether that regulatory burden is comparably justified. Because

"individual self-defense is 'the central component' of the Second

Amendment right,” these two metrics are " 'central' ” considerations

when engaging in an analogical inquiry. McDonald, 561 U. S., at 767



(quoting Heller, 554 U. S., at 599).



To be clear, even if a modern-day regulation is not a dead ringer for

historical precursors, it still may be analogous enough to pass consti-

tutional muster. For example, courts can use analogies to "longstand-

ing” "laws forbidding the carrying of firearms in sensitive places such

as schools and government buildings” to determine whether modern

regulations are constitutionally permissible. Id., at 626. That said,

respondents' attempt to characterize New York's proper-cause require-

ment as a "sensitive-place” law lacks merit because there is no histor-

ical basis for New York to effectively declare the island of Manhattan

a "sensitive place” simply because it is crowded and protected gener-

ally by the New York City Police Department. Pp. 17–22.

(b) Having made the constitutional standard endorsed in Heller

more explicit, the Court applies that standard to New York's proper-

cause requirement. Pp. 23–62.



(1) It is undisputed that petitioners Koch and Nash—two ordi-

nary, law-abiding, adult citizens—are part of "the people” whom the

Second Amendment protects. See Heller, 554 U. S., at 580. And no

party disputes that handguns are weapons "in common use” today for

self-defense. See id., at 627. The Court has little difficulty concluding

also that the plain text of the Second Amendment protects Koch's and

Nash's proposed course of conduct—carrying handguns publicly for

self-defense. Nothing in the Second Amendment's text draws a

home/public distinction with respect to the right to keep and bear

arms, and the definition of "bear” naturally encompasses public carry.

Moreover, the Second Amendment guarantees an "individual right to

possess and carry weapons in case of confrontation,” id., at 592, and

confrontation can surely take place outside the home. Pp. 23–24.



4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN



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(2) The burden then falls on respondents to show that New York's

proper-cause requirement is consistent with this Nation's historical

tradition of firearm regulation. To do so, respondents appeal to a va-

riety of historical sources from the late 1200s to the early 1900s. But

when it comes to interpreting the Constitution, not all history is cre-

ated equal. "Constitutional rights are enshrined with the scope they

were understood to have when the people adopted them.” Heller, 554

U. S., at 634–635. The Second Amendment was adopted in 1791; the

Fourteenth in 1868. Historical evidence that long predates or post-

dates either time may not illuminate the scope of the right. With these

principles in mind, the Court concludes that respondents have failed

to meet their burden to identify an American tradition justifying New

York's proper-cause requirement. Pp. 24–62.



(i) Respondents' substantial reliance on English history and

custom before the founding makes some sense given Heller's statement

that the Second Amendment "codified a right 'inherited from our Eng-

lish ancestors.' ” 554 U. S., at 599. But the Court finds that history

ambiguous at best and sees little reason to think that the Framers

would have thought it applicable in the New World. The Court cannot

conclude from this historical record that, by the time of the founding,

English law would have justified restricting the right to publicly bear

arms suited for self-defense only to those who demonstrate some spe-

cial need for self-protection. Pp. 30–37.



(ii) Respondents next direct the Court to the history of the Col-

onies and early Republic, but they identify only three restrictions on

public carry from that time. While the Court doubts that just three

colonial regulations could suffice to show a tradition of public-carry

regulation, even looking at these laws on their own terms, the Court is

not convinced that they regulated public carry akin to the New York

law at issue. The statutes essentially prohibited bearing arms in a

way that spread "fear” or "terror” among the people, including by car-

rying of "dangerous and unusual weapons.” See 554 U. S., at 627.

Whatever the likelihood that handguns were considered "dangerous

and unusual” during the colonial period, they are today "the quintes-

sential self-defense weapon.” Id., at 629. Thus, these colonial laws

provide no justification for laws restricting the public carry of weapons

that are unquestionably in common use today. Pp. 37–42.



(iii) Only after the ratification of the Second Amendment in

1791 did public-carry restrictions proliferate. Respondents rely heav-

ily on these restrictions, which generally fell into three categories:

common-law offenses, statutory prohibitions, and "surety” statutes.

None of these restrictions imposed a substantial burden on public

carry analogous to that imposed by New York's restrictive licensing

regime.



5Cite as: 597 U. S. ____ (2022)



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Common-Law Offenses. As during the colonial and founding peri-

ods, the common-law offenses of "affray” or going armed "to the terror

of the people” continued to impose some limits on firearm carry in the

antebellum period. But there is no evidence indicating that these com-

mon-law limitations impaired the right of the general population to

peaceable public carry.



Statutory Prohibitions. In the early to mid-19th century, some

States began enacting laws that proscribed the concealed carry of pis-

tols and other small weapons. But the antebellum state-court deci-

sions upholding them evince a consensus view that States could not

altogether prohibit the public carry of arms protected by the Second

Amendment or state analogues.



Surety Statutes. In the mid-19th century, many jurisdictions began

adopting laws that required certain individuals to post bond before

carrying weapons in public. Contrary to respondents' position, these

surety statutes in no way represented direct precursors to New York's

proper-cause requirement. While New York presumes that individu-

als have no public carry right without a showing of heightened need,

the surety statutes presumed that individuals had a right to public

carry that could be burdened only if another could make out a specific

showing of "reasonable cause to fear an injury, or breach of the peace.”

Mass. Rev. Stat., ch. 134, §16 (1836). Thus, unlike New York's regime,

a showing of special need was required only after an individual was

reasonably accused of intending to injure another or breach the peace.

And, even then, proving special need simply avoided a fee.



In sum, the historical evidence from antebellum America does

demonstrate that the manner of public carry was subject to reasonable

regulation, but none of these limitations on the right to bear arms op-

erated to prevent law-abiding citizens with ordinary self-defense needs

from carrying arms in public for that purpose. Pp. 42–51.



(iv) Evidence from around the adoption of the Fourteenth

Amendment also does not support respondents' position. The "discus-

sion of the [right to keep and bear arms] in Congress and in public

discourse, as people debated whether and how to secure constitutional

rights for newly free slaves,” Heller, 554 U. S., at 614, generally

demonstrates that during Reconstruction the right to keep and bear

arms had limits that were consistent with a right of the public to peace-

ably carry handguns for self-defense. The Court acknowledges two

Texas cases—English v. State, 35 Tex. 473 and State v. Duke, 42 Tex.

455—that approved a statutory "reasonable grounds” standard for

public carry analogous to New York's proper-cause requirement. But

these decisions were outliers and therefore provide little insight into

how postbellum courts viewed the right to carry protected arms in pub-

lic. See Heller, 554 U. S., at 632. Pp. 52–58.



6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN



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(v) Finally, respondents point to the slight uptick in gun regu-

lation during the late-19th century. As the Court suggested in Heller,

however, late-19th-century evidence cannot provide much insight into

the meaning of the Second Amendment when it contradicts earlier ev-

idence. In addition, the vast majority of the statutes that respondents

invoke come from the Western Territories. The bare existence of these

localized restrictions cannot overcome the overwhelming evidence of

an otherwise enduring American tradition permitting public carry.

See Heller, 554 U. S., at 614. Moreover, these territorial laws were

rarely subject to judicial scrutiny, and absent any evidence explaining

why these unprecedented prohibitions on all public carry were under-

stood to comport with the Second Amendment, they do little to inform

"the origins and continuing significance of the Amendment.” Ibid.; see

also The Federalist No. 37, p. 229. Finally, these territorial re-

strictions deserve little weight because they were, consistent with the

transitory nature of territorial government, short lived. Some were

held unconstitutional shortly after passage, and others did not survive

a Territory's admission to the Union as a State. Pp. 58–62.



(vi) After reviewing the Anglo-American history of public carry,

the Court concludes that respondents have not met their burden to

identify an American tradition justifying New York's proper-cause re-

quirement. Apart from a few late-19th-century outlier jurisdictions,

American governments simply have not broadly prohibited the public

carry of commonly used firearms for personal defense. Nor have they

generally required law-abiding, responsible citizens to "demonstrate a

special need for self-protection distinguishable from that of the general

community” to carry arms in public. Klenosky, 75 App. Div. 2d, at 793,

428 N. Y. S. 2d, at 257. P. 62.



(c) The constitutional right to bear arms in public for self-defense is

not "a second-class right, subject to an entirely different body of rules

than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780

(plurality opinion). The exercise of other constitutional rights does not

require individuals to demonstrate to government officers some special

need. The Second Amendment right to carry arms in public for self-

defense is no different. New York's proper-cause requirement violates

the Fourteenth Amendment by preventing law-abiding citizens with

ordinary self-defense needs from exercising their right to keep and

bear arms in public. Pp. 62–63.



818 Fed. Appx. 99, reversed and remanded.

Reversed and remanded.



[W]e hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its

regulation, the government may not simply posit that theregulation promotes an important interest. Rather, thegovernment must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s

“unqualified command.” Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).



See: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf