When the Supreme Court decided New York State Rifle & Pistol Association v. Bruen in June of 2022, it made it clear that federal, state and local governments must respect the fundamental right to bear arms outside the home for self-defense. Because, as the Court pointed out, a homebound right to “bear” arms between the living room and kitchen isn’t much of a right at all.
While some have claimed that the decision leaves many openings for regulation, it seems to me that the conclusion of Justice Clarence Thomas’ opinion forecloses any law that generally prohibits law-abiding Americans from defending themselves and their loved ones.
“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.”
But, before the “ink” on Justice Thomas’ opinion was even dry, anti-gun lawmakers and academics began working on ways to undermine and minimize the Supreme Court’s decision. The Court released its opinion on June 23, and by July 1, the New York State Legislature had adopted sweeping legislation to completely rewrite its laws on public carry of firearms. Such an impactful piece of legislation should take months to work its way through the legislative process, with ample opportunity for input from the public, but New York lawmakers were just working toward a foregone conclusion: undermine the right to carry in every way possible.
The cornerstone of the Empire State’s new legislation was a novel provision that flipped the default rule for carrying arms on private property. Instead of the normal rule of people generally being able to enter private property that is open to the public, the law made it unlawful to enter private property with a firearm unless the person in control of the property had posted a sign affirmatively allowing firearm possession.
Imagine if this rule were broadly applied. Could a state legislature make an ever-changing list of items that otherwise law-abiding people can’t take to their local grocery store without risking criminal penalties? There is a good reason that rules for private property are left to the property owners and not hidden in an ever-changing statute book. But this terrible idea is spreading.
California, Hawaii, Maryland and New Jersey have all adopted similar laws that include the new “default rule” for private property, as well as many other location restrictions.
This idea came from a 2020 book written by two academics that first suggested switching the default rule. Initially, there was little interest in this idea because, pre-Bruen, anti-gun states were happy to discriminate on the basis of who could exercise their right to bear arms. When the Bruen decision clearly made this discrimination unlawful, anti-gun lawmakers latched onto the default-rule idea to limit the places where a person could lawfully carry.
Anti-gun lawmakers couldn’t completely hide their true intent when adopting this new default rule. In the new law, there are several exceptions for who is bound by it. The New York law exempted both active and retired police officers, and laws adopted in other states have included even more exceptions. If the states were honestly trying to change the default rule for entry onto private property, then there wouldn’t be any exceptions. What they’re really trying to do is exercise the state’s police power to regulate the right to bear arms in an unconstitutional way and to use private-property rights as a pretext for their unconstitutional ends.
To put it another way, if anti-gun states are going to be forced to “allow” average, law-abiding Americans to carry firearms for self-defense (as if a state had the authority to allow or disallow the exercise of any fundamental right), then those states are going to ensure that this right to bear arms is as hollow a right as possible.
Shortly after New York adopted its law, NRA and other pro-gun organizations filed suit to block the New York law and the laws in every other state that have adopted what are colloquially being called “Bruen-response bills.” While these lawsuits are still working their way through various courts, one thing has been clear in each case: The default-rule change has no basis in the history of the Second Amendment and is clearly a pretextual attempt to ban lawful carry in as many locations as possible. Four courts have considered the constitutionality of the new default rule, and four courts have blocked its enforcement because it is unconstitutional.
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