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Problems Bruen

Why Does the Second Amendment Only Apply to “Law-Abiding” Gun Owners?

A recent lower court ruling has neatly exposed the Supreme Court’s conservative majority’s funny ideas about the Bill of Rights.

Scott Olson/Getty Images

I’ve written a few times about New York State Rifle & Pistol Association v. Bruen, the Supreme Court’s major ruling on concealed-carry licensing last term, and how lower courts are using its history-and-tradition test to strike down restrictions on concealed carry in strange ways. It’s also worth exploring another aspect that’s flown under the radar: the ruling’s use of the phrase “law-abiding citizens” and the assumptions baked into that understanding. A decision this week by a federal judge in New Jersey highlighted some of the incongruities that have followed this particular rhetorical turn.

Judge Renée Marie Bumb ruled against multiple provisions in the state’s recently enacted law for concealed-carry licenses in Koons v. Platkin. State lawmakers passed the law in the wake of Bruen, which struck down the long-standing concealed-carry law in neighboring New York. A group of gun owners in New Jersey subsequently challenged these new restrictions in court on the grounds that they violated their Second Amendment right to bear arms. They sought to overturn a variety of permitting restrictions as well as various limitations on where and when concealed-carry weapons could be brought.

Bumb’s ruling, like other recent decisions, reviewed the historical record for late-eighteenth- and early-nineteenth-century laws that were similar to modern restrictions. Following Bruen’s lead, she upheld provisions with historical analogues and blocked ones without them. This occasionally led to some strange results, the most glaring of which came when she struck down the ban on carrying a gun in a casino. Though legal in New Jersey today, casinos were generally illegal in the Thirteen Colonies and the early republic, leaving today’s Americans with no clues as to what early American legislatures would have done.

Bumb got around this problem by noting that, in her view, not every state actually banned casinos in the eighteenth century. “In fact, in 1753, Louisiana established a government-run casino,” she noted, referring to an enterprise set up by Governor Louis Billouart de Kerlérec in a bid to rein in the French colony’s rampant gambling habits. Bumb also referenced horse racing in New York and casual “dice or card games at various saloons,” none of which are casinos. For the latter points, she cited a nonscholarly article published in 2008 by the Colonial Williamsburg Foundation.

“The state has presented no firearm law from states that allowed gambling that restricted firearms at gambling establishments,” she noted. “Even if several states outlawed gambling, history shows that Louisiana did not. And besides one law from New Orleans that banned firearms at public ballrooms, the state presented no law from Louisiana that banned firearms from its government-operated casino.” The history-and-tradition inquiry, which is supposed to tell today’s Americans what their forefathers would have done in the founding era, hinged in this case on the actions of a single foreign colonial governor sent by the Kingdom of France to a territory that would not be acquired by the United States for another half-century.

But beyond the history-and-tradition test, references to “law-abiding citizens” also suffused the opinion in a noteworthy way. This is not surprising: Justice Clarence Thomas’s majority opinion in Bruen featured 13 uses of the phrase. Some of them are even more specific than the basic version. He referred to “ordinary, law-abiding citizens” in his opening paragraph. A few pages later, he described the plaintiffs as “law-abiding, adult citizens.” He quotes a reference from District of Columbia v. Heller that mentioned “law-abiding, responsible citizens.” Justices Samuel Alito and Brett Kavanaugh included similar descriptors in their concurring opinions; a stray one even made it into Justice Stephen Breyer’s dissent.

The limitation to “citizens” as the category of persons for whom the Second Amendment applies is already notable. Thomas insisted in Bruen that the Second Amendment was on equal footing with the rest of the Bill of Rights; it is not a “second-class right,” which is how he often said his colleagues treated it in the years between Heller and Bruen. And yet it might be the only provision in the Bill of Rights that meaningfully distinguishes between the rights of citizens and the rights of the more than 40 million noncitizens currently living in the U.S. Lower courts are divided on this very question: The Seventh Circuit Court of Appeals ruled in 2015 that undocumented immigrants have an individual right to bear arms, while some other courts have ruled otherwise. The Supreme Court may eventually need to clarify that issue.

For now, however, the most interesting descriptor is “law-abiding.” The court has not dwelled on exactly what that phrase means or how it should affect the analysis by lower courts. There are no other contextual analogues to it in the rest of the Bill of Rights. The First Amendment generally protects speech that advocates for illegal acts in all but the most immediate circumstances. The Fourth, Fifth, and Sixth Amendments explicitly protect people accused or suspected of committing crimes; they would make little sense if they applied only to “law-abiding” people. And the Eighth Amendment would be all but pointless since it typically protects people already convicted of a crime and facing punishment for it.

Nonetheless, the Supreme Court and the lower federal courts have apparently concluded that the Second Amendment does not apply to “the people” in its broadest sense as written, but only to “law-abiding” people. Alito came perhaps the closest to explaining the difference in his concurring opinion in Bruen. “While the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense,” he explained, referring to Breyer’s dissent.

Alito then went on to describe how “law-abiding citizens” interact with and can be distinguished from “criminals” in more detail. “No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law,” he wrote, referring to the New York statute at the heart of the case. “Each year, the [NYPD] confiscates thousands of guns, and it is fair to assume that the number of guns seized is a fraction of the total number held unlawfully.” He went on to state, citing statistics and anecdotes alike, that “ordinary citizens frequently use firearms to protect themselves from criminal attack.”

Some of this is a bit obvious. A mugger carrying a gun is not law-abiding; a person defending themselves from a mugger is law-abiding. But Alito’s reference to the NYPD’s confiscation of guns “held unlawfully” is where things break down a bit. The whole point of the legal challenge in Bruen was that otherwise “law-abiding” New Yorkers who lacked concealed-carry permits could not go to certain places in New York City with their guns without facing arrest and seizure. According to the friend-of-the-court briefs filed in Bruen, more than a few people whose guns were seized by the NYPD in recent years intended to use them for self-defense, or at the very least did not intend to use them to commit a crime. Criminality, in other words, is more than just whatever a state decides to criminalize.

Bumb echoed Alito’s thinking in her own opinion. Under Bruen, courts are no longer allowed to do a cost-benefit analysis of gun restrictions when weighing their constitutionality. The history-and-tradition test now reigns supreme. But the costs and benefits still come up when deciding procedural aspects of litigation, like whether to grant a preliminary injunction to prevent a gun restriction from taking effect. That led Bumb to consider the practical merits of the New Jersey law and its potential effect on gun violence and homicides.

The judge brushed aside most of the scholarly research for one reason or another, largely because the studies looked at changes from a permitless regime to a permitted one. “Whatever the permitting regime—shall, may, or permitless—opportunistic criminals and individuals bent on breaking the law will obtain firearms and use them unlawfully,” she wrote. “Indeed, criminals are not deterred by firearm laws.” She cited Alito’s own reasoning in his Bruen concurring opinion to support that statement. In other words, if “opportunistic criminals” and “individuals bent on not breaking the law” will always have guns because they ignore restrictions on them, then restrictions on “law-abiding” gun owners should also fall so they can defend themselves.

But Bumb did not go quite this far in practice: She left much of the New Jersey concealed-carry law intact, save for its insurance requirement and some of its place-based restrictions. The Garden State’s residents can now carry guns to zoos, film sets, and airport pickup and drop-off lounges, just as the founding generation of Americans probably imagined they could. Many other provisions were left intact, reflecting the high court’s reasoning in Heller that the Second Amendment is “not unlimited” and that several major restrictions were “presumptively lawful,” which it emphasized again in Bruen.

The Second Amendment’s actual text praises a “well-regulated” militia while declaring that the right to bear arms for it “shall not be infringed,” so perhaps it’s not surprising that interpreting it also leads to incongruities. On one hand, the justices have told lower courts not to treat the Second Amendment as a “second-class right,” insisting that it is a full and equal part of the Bill of Rights. On the other hand, they are consciously limiting that right in ways that would be unthinkable for any other portion of the Bill of Rights—not because they themselves think it’s a second-class right but because they all know what would happen if they treated it like a first-class one.