The simple truth is, the policy impact of the New York gun case recently decided by the Supreme Court, New York State Rifle & Pistol Association v. Bruen (Bruen), is not likely to be significant. Even Justice Thomas’ decision as further refined by the concurring opinions of Justices Kavanaugh and Alito, seemingly provides ample space for regulation of gun ownership and possession. Justice Kavanaugh made a point of declaring that the Second Amendment “is neither a regulatory straight jacket nor a regulatory blank check.” Justice Alito added that the “holding [of a firearm] decides nothing about who may lawfully possess a firearm …Nor does it decide anything about the kinds of weapons that people may possess.” Taking the concurring justices at their word, New York, Governor Hochul has already signed replacement legislation (which is not to say that this new piece of legislation is free of constitutional headaches).
To be sure, while the Bruen decision will not make it impossible for states to regulate gun ownership, it will make it more difficult. But the problem runs much deeper than that. The most disturbing aspect of the Bruen decision, as argued by retired Justice Breyer in his dissent, is the new paradigm Justice Thomas seeks to impose upon constitutional interpretation. Justice Thomas insisted that current constitutional conflicts can only be resolved by exclusive reliance upon historical analogy. And, by-the-way, it’s not only Justice Thomas who seeks to impose this constitutional constraint, Justice Alito in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion, insisted upon reliance to historical references as well.
Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. She is the author of When Freedom Speaks: The Boundaries and Boundlessness of the First Amendment. You can follow her on Instagram @LynnGreenky.