US Supreme Court Eliminates the “Special Need” Requirement for Carry Permits
June 24, 2022- Posted by Larry E. Holtz, Esq.
In New York State Rifle & Pistol Assoc. v. Bruen, (2022), the United States Supreme Court invalidated New York state’s system for issuing concealed firearm permits, ruling that New York’s law requiring applicants to demonstrate “proper cause,” that is, a “special need for self-protection,” violates the Second Amendment.
Previously, in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), the Court recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. Here, in Bruen, the Court now holds, consistent with Heller and McDonald, that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
According to the Court, 43 states are “shall issue” jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special or urgent need. Because New York State issues public-carry licenses only when an applicant demonstrates a special need for self-defense, the Court held that the licensing regime violates the Constitution.
Writing for the Court, Justice Thomas specifically mentioned that carry permit laws in California, the District of Columbia, Hawaii, Maryland, Massachusetts and New Jersey shared New York’s constitutional flaw.
In New York, a license applicant who wants to possess a firearm at home (or in his place of business) must convince a “licensing officer”—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that “no good cause exists for the denial of the license.” If the applicant wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” That requires the applicant to prove that “proper cause exists” to issue it. New York case law provides that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” In this regard, the Court noted that the “special need” standard is “demanding.” For example, living or working in an area “noted for criminal activity” does not suffice. “Rather, New York courts generally require evidence “of particular threats, attacks or other extraordinary danger to personal safety.” This requirement, held the Court, violates the Second Amendment and Fourteenth Amendments. Said the Court:
"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.” … We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense."
"New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. …"
Going forward, consistent with Heller and McDonald, to determine whether a firearm regulation is consistent with the Second Amendment, courts should consider “at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, 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 determining whether the particular regulation is constitutional permissible.