Gun rights and gun control advocates alike are watching the Supreme Court, to see what happens in New York State Rifle & Pistol Association, Inc. v. Bruen. In this pivotal Second Amendment case, the Court finds its first opportunity to substantially extend its 2008 decision in District of Columbia v. Heller, and to define the scope of the Second Amendment right to bear arms outside the home. The Court can decide this case narrowly by limiting its decision to the statutes at issue, New York’s “proper cause” regime (the “New York law”). Alternatively, the Court can rule broadly and use this case to shift Second Amendment doctrine away from the predominant “two-part inquiry” to the “text, history, and tradition” (“THT”) approach, which has been relied upon in Second Amendment jurisprudence when these three types of sources provide reasonably clear guidance. Second Amendment advocates hope the Court will use the “text, history, and tradition” approach to affirm that arms kept and born outside the home (“public carry”) are constitutionally protected.
Since Heller, there has been some debate about which interpretive approach to apply when analyzing Second Amendment cases. The Heller Court concluded that the Amendment granted individuals the right to keep and bear arms, and found self-defense in the home to be a hallmark of Second Amendment protections. Yet, in coming to this conclusion, the Court failed to provide guidance on what type of analytical test lower courts should employ when faced with Second Amendment challenges to gun regulations. Most lower courts have since established a two-part inquiry, while others have endorsed an alternative approach that focuses on “text, history, and tradition.” Given its current composition, the Court will likely strike down the New York law. Additionally, with Justice Kavanaugh, a key advocate of the THT approach now on the Court, it appears the Court may also adopt this interpretive framework. Nevertheless, both of these outcomes would be inappropriate because neither would be consistent with Heller.