The Supreme Court begins its new term on Monday with no shortage of high-stakes cases to wrestle with. One of them is New York State Rifle and Pistol Association v. Bruen, where the justices will consider the constitutionality of a New York law that dispenses concealed-carry licenses very sparingly, mostly to ex-cops and a select group of famous celebrities. As one might expect, gun rights advocates and gun-control groups alike are jockeying for the court to adopt an interpretation of the Second Amendment that fits their vision for the right to bear arms. Beneath that surface, however, a more intriguing debate about the Second Amendment is taking place between two groups that usually aren’t at odds.
On one side is the American Civil Liberties Union and its New York state counterpart, which contend that the state law is justified to protect First Amendment rights in the public sphere. On the other side are a coalition of New York–based public defender groups who contend that the law actually gives cops a license to discriminate and harm indigent and minority New Yorkers who try to exercise their Second Amendment rights. The result is two starkly different visions of how the law affects civil rights, public safety, and the Constitution.
Bruen is slated to produce the first major Supreme Court ruling on the scope of the Second Amendment in nearly a decade. (It was previously known as New York State Rifle and Pistol Association v. Corlett.) As I noted when the court agreed to hear the case earlier this year, the dispute revolves around New York’s highly restrictive scheme for obtaining a concealed-carry license. The New York State Rifle and Pistol Association and two plaintiffs who failed to obtain licenses argue that the Second Amendment protects a right to carry arms outside the home and that New York is violating that right. The state, for its part, counters that its law fits within traditional restrictions on gun possession and is necessary to reduce crime.
But it might be the friend-of-the-court briefs that provide more insight on the stakes of this case. The ACLU’s official position on the Second Amendment is that it protects a collective right to self-defense and not an individual one, a stance it admits is at odds with current constitutional law. “For seven decades, the Supreme Court’s 1939 decision in United States v. Miller was widely understood to have endorsed that view,” the group stated in an explainer on its website. “This position is currently under review and is being updated by the ACLU National Board in light of the U.S. Supreme Court decision in D.C. v. Heller in 2008.” A review of that page’s history on the Internet Archive shows that it has not been updated since at least 2016, if not longer.
Like many discussions of the Second Amendment and its breadth, the ACLU’s brief discusses the history of the right to bear arms in Anglo-American law. The organization argued that English and early American laws often limited the public’s right to carry weapons in public “in order to preserve the peace necessary for a robust civic life.” It noted that in the English legal tradition, the idea of the “King’s Peace” had emerged as the mediating force of everyday life, with the rule of law supplanting violence or the threat thereof. “Laws protecting public spaces from the threat presented by people carrying weapons are as old as the concept of ‘the peace’ itself,” it added.
Though medieval English legal theory might seem ill-fitting for contemporary American life, the ACLU argued that restrictions on carrying arms in public are just as important, if not more so, in a modern democracy. “Self-government depends on the ability of the people to participate fully in civic, political, and economic life,” the ACLU argued in its brief. “People need to feel safe to vote, to go to school and work, to walk the streets, and to assemble, associate, and speak freely in public. While these rights have not always been equally available to all, the goal of maintaining the peace to allow all people to participate in public life, including to speak out on political, religious, and other sensitive topics, is critically important to our democracy.”
In addition to historical evidence, the ACLU also pointed to more contemporary examples. The group cited reports that some participants in the January 6 attack on Capitol Hill consciously decided to leave their guns at home beforehand because of the District of Columbia’s strict laws on carrying firearms in public. Other recent instances of armed groups carrying out political activities also brought an undercurrent of urgency to the ACLU’s argument. “As these examples make vivid, states have a sound basis for determining that liberal public carry may jeopardize the safety vital to a robust civic life,” they concluded.
Siding with gun rights groups in a friend-of-the-court brief is a coalition of New York–based public defender groups: Black Attorneys of Legal Aid, the Bronx Defenders, Brooklyn Defender Services, and seven county public defense offices. “For our clients, New York’s licensing regime renders the Second Amendment a legal fiction,” they told the court. “Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.”
A large portion of the groups’ brief is devoted to stories about their clients’ run-ins with the statute in question. One of them, Jasmine Phillips, is a veteran from Texas who brought a pistol licensed to her in that state to New York while visiting family. According to the brief, officers pulled Phillips out of her car without warning while it was parked, put her in a chokehold and threw her to the ground, then searched the car and found the gun. Though the case was eventually dismissed, her arrest and weeks-long detention on Rikers Island had long-lasting effects. Phillips lost her job and her car, her landlord in Texas terminated her lease, and a Texas judge cited the arrest when ruling against her in a later child-custody hearing.
Another client, Gary Smith, is a former New York City employee who retired after a cancer diagnosis. According to the brief, NYPD officers charged him with unlawful possession after searching his home and finding a “loaded” handgun even though the ammunition was stored in a separate bag. “The prosecutors accused him of possessing a loaded firearm with intent to use it unlawfully because New York presumes that intent from unlicensed possession alone,” the groups told the court. “New York’s law considered the firearm ‘loaded’ because the ammunition was in the same area as the firearm. And the ‘home’ exception … did not apply to him because he had previously been convicted of a class A misdemeanor for jumping a subway turnstile.”
Other stories depict other ordinary citizens at the mercy of police officers who can wield the state’s laws against unlicensed gun ownership against them with unfettered discretion and relative impunity. Though the two briefs do not address each other, it’s hard not to read the defenders’ conclusions as a rebuttal to the ACLU’s public safety argument. “What these stories and our experience illustrate is that New York’s licensing requirements—which cause criminal penalties for unlicensed possession—themselves have controversial public safety implications,” the public defenders groups argued. They noted that it can also be considered unsafe to lose one’s job and/or children after an arrest, or to be sent to New York’s troubled and dangerous jails and prisons to await trial or serve a sentence.
Some of the court’s conservative justices have written extensively about the Second Amendment as a civil right in the more popularly understood sense, a framework not typically adopted by their liberal colleagues. While serving on the Seventh Circuit Court of Appeals, Justice Amy Coney Barrett wrote in one case that state and federal laws that criminalize firearm possession by people with felony convictions may not be constitutional. She noted that there was no evidence of founding-era laws that imposed similar punishments when the Second Amendment was drafted. “Felons serving a term of years did not suffer civil death; their rights were suspended but not destroyed,” Barrett wrote. “In sum, a felony conviction and the loss of all rights did not necessarily go hand-in-hand.”
In the 2010 case McDonald v. Chicago, which applied Heller to the states, Justice Clarence Thomas wrote at length in a concurring opinion on the historical context of nineteenth-century state laws on gun possession. He noted that many of the restrictions, particularly in Southern states, were designed to suppress uprisings by enslaved people and free Black Americans. After the Civil War, Radical Republicans in Congress drafted the Fourteenth Amendment to protect emancipated Americans’ civil rights in the South, including the right to bear arms. Those efforts failed in part because the Supreme Court sapped the Fourteenth Amendment’s strength in the Slaughterhouse Cases and United States v. Cruikshank during Reconstruction.
Tragedy soon followed. The high court’s ruling in Cruikshank in particular “enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery,” Thomas wrote. “Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.”
The ACLU did not ignore this grim history. Its brief noted that while many states curtailed gun rights in discriminatory ways after Reconstruction, some also imposed restrictions on carrying firearms in public in ways that affected white Americans as well. The ACLU argued that these quandaries are best left to the other branches to wrestle with. “Discriminatory law enforcement, of gun laws, or any other laws, is an Equal Protection [Clause] problem, and warrants serious attention from courts, the police, and our political leaders,” the group argued. “The question before the Court in this case, however, is whether the Second Amendment permits the state to regulate concealed carry.” The court’s answer—and which of the two paths it took to get there—could be clear as soon as next spring.