With much of the nation deeply worried over gun violence and with even a usually reluctant Congress ready to take some action, the Supreme Court by a 6-to-3 vote on Thursday created a new, broad and difficult-to-limit constitutional right to carry a concealed firearm in public.
It took the Justices five opinions totaling 135 pages to decide the first genuinely significant gun dispute since the famous 2008 decision in District of Columbia v. Heller – the first decision to interpret the Second Amendment to include a right to have a gun for personal use.
Although three of the six Justices in the majority made efforts in separate opinions to show that the new decision was not as expansive as it actually seems, the main opinion written by Justice Clarence Thomas did three new things quite clearly – although lower courts will now face considerable challenges in applying the new ruling case by case.
First, the ruling expanded for the first time the Second Amendment right to have a gun for personal use so that the right does not exist only inside one’s home for self-defense, but now also includes a right to carry a gun outside the home for self-defense and in a concealed way.
Second, it cast aside the two-step method that most lower courts had been using to judge the constitutionality of gun-control laws, a method that had upheld quite a few such laws. It ordered lower courts to limit their review to what the text of the Second Amendment itself means, historically and today, and largely barred them from using a more relaxed test permitting government to more easily justify curbs on gun ownership or carrying.
The newly imposed test is this: if a law puts a burden on having or carrying a gun, the law must be struck down unless it satisfies the most compelling policy reason and does so by the narrowest possible controls. It is unclear whether that leaves any room to pass a law, for example, that totally bans a high-velocity automatic weapon – the highly popular and widely used gun that was the weapon used in many recent mass shootings. Indeed, the opinion made clear the new right includes carrying of any “commonly used firearm.”
Third, it barred the states from writing laws or issuing regulations that require persons seeking a gun-carrying permit to show that they have a specific reason for feeling threatened when moving about in public. It specifically struck down a New York state law that requires proof of “good cause” for public carry of firearms. That law, the opinion said, violates “ordinary self-defense needs.”
This left considerable uncertainty about what states may now require before issuing any gun permits, although two Justices argued in one of the separate opinions that existing licensing laws in 43 states would probably not fall.
It was significant that Chief Justice John G. Roberts, Jr., had chosen to assign the task of writing the main opinion to Justice Thomas. That choice practically guaranteed that the result would be a sweeping embrace of the Second Amendment’s widest scope, since Thomas for years has been writing opinions – often speaking only for himself – complaining of treating the Second Amendment as embodying only a “second-class rights.” The final 63-page main opinion appeared to fulfill all of Thomas’s aspirations.
If there was any part that remained quite opaque it was the opinion’s point that the Second Amendment right is enjoyed only by “law-abiding, responsible citizens.” There was no definition who that would include, and might suggest that children are not included, nor are incompetent or convicted individuals. The implication, though, was that restrictions by category of individual would be subjected to rigorous testing in courts.
Aside from what the ruling means to most Americans, one facet of the Thomas opinion that will be intriguing for historians and legal scholars is that it shows a considerable uncertainty about how courts are to use prior American history in judging gun laws’ constitutionality. This is an aspect of so-called “originalist” constitutional theory, which insists on interpreting the meaning of constitutional clauses based upon what they meant at the time they were put into the Constitution.
But Thomas’s opinion is mildly critical of reading too much into, for example, the scope of gun laws at the time the Second Amendment was put into the Constitution (1791) or when many constitutional limits were imposed on state governments by the Fourteenth Amendment (1868). Thomas found little support for the New York gun-permitting limits in that history, thus refuting efforts by lawyers for gun-control advocates to make points drawn from prior America’s story.
The Court’s newest Justice, Amy Coney Barrett, who is fond of “originalist” theory of interpreting the Constitution, joined the opinion in full but wrote a separate two-page opinion – scholarly in tone – to make the point that this ruling did not put new limits on “originalist” analysis.
The Thomas opinion had the full support of the Chief Justice, Justice Barrett and three other Justices who also wrote or joined in separate opinions. Justice Samuel A. Alito, Jr., wrote separately to answer the criticism of the dissenting Justices. Justice Brett M. Kavanaugh (joined by the Chief Justice) wrote separately to argue that the opinion leaves licensing laws in 43 states undisturbed.
The Kavanaugh opinion contended that those other states’ laws make licensing depend upon fingerprinting, personal background checks, mental heath checks, and training in gun handling, or impose criminal penalties for some uses of guns. New York’s laws, like the laws in five other states, Kavanaugh noted, give officials “open-ended discretion” on issuing licenses.
The Court’s remaining liberal Justices – Stephen G. Breyer, Elena Kagan and Sonia Sotomayor – joined a lengthy opinion by Breyer strongly lamenting the amount of gun violence now prevalent across the nation. This was the opening sentence: “In 2020, 45,222 Americans were killed by firearms.”
The dissenters noted that many states have been trying to take action to reduce gun violence, but they protested that the Court majority “today severely burdens states’ efforts to do so.” They complained that the new ruling will keep courts from even inquiring into the “serious dangers and consequences of gun violence” that prompt states to pass gun regulations.
The gun rights decision was one of four that the Court released this morning, as it moves toward completing its current term by the end of the month or early in July. It has nine decisions left, and plans to issue more opinions at least on tomorrow and perhaps during next week.
In another ruling today decided by the same 6-to-3 voting pattern, the Court significantly narrowed the scope of protection that the famous decision on “Miranda rights” gives to criminal suspects when they are in police custody and face questioning about crimes.
Under the 1966 decision in Miranda v. Arizona, the Court required police – before doing any such questioning – to first warn the individual of their right to remain silent, their right to a lawyer, and their risk of answering questions because answers could be used against them at a trial. The officers were required to make sure that the suspect understood those rights.
In a significant decision in 2000, in the case of Dickerson v. U.S., the Court struck down a federal law in which Congress had attempted to overturn the warnings requirement. In doing so, though, the Dickerson decision appeared to put the Miranda decision on a firmer constitutional foundation, saying that the warnings had their basis in the Fifth Amendment right against self-incrimination.
Today, in an opinion written by Justice Alito, the Court declared firmly that the Miranda decision was only a court-devised limitation on how police gathered evidence, and that the warnings themselves were not actually required by the Constitution.
As a result, the decision said, the failure of police to give warnings to a suspect can only be used at a trial to exclude evidence that flowed from the police questioning without the warnings. The individual who was convicted without having been warned of rights, the Court said, is not allowed to sue the officers involved personally, seeking money damages in a separate lawsuit.
The ruling came in the case of Vega v. Tekoh, involving a California hospital worker who had been charged with sexual assault of a patient. What he told police, after not being warned of his rights, was used against him at trial, but he was found not guilty. He then sought in a separate lawsuit to sue the police who failed to give him Miranda warnings, seeking money damages. He sought to do so under federal civil rights law that applies to state employees. Today’s ruling forbids him from pursuing that lawsuit to enforce his rights.