When the Supreme Court struck down New York state’s concealed carry law Thursday, it didn’t just get rid of a gun law that’s been in effect since 1911. In NYSRPA v. Bruen, the high court has tossed aside the lessons — and facts — of law, history and good public policy. I say that as someone who not only studies the U.S. Constitution and firearms policy, but also as someone who personally holds a New York concealed carry permit. I do not believe the New York law impinged on my rights, but the court obviously did.
The pop culture image of American gun-toting throughout history, unencumbered by laws, is mostly a fiction.
The 2008 case of District of Columbia v. Heller established the right of individuals to own guns for protection within their homes. Until then, the Second Amendment’s language was understood to apply only in the context of militia service, as referenced in the amendment. Now, in a 6-3 ruling, the Supreme Court has said that the Second Amendment protects “an individual’s right to carry a handgun for self-defense outside the home,” so concealed carry laws like New York’s are unconstitutional.
It also said that states “may continue to require licenses for carrying handguns for self-defense,” but that this license must be granted unless the applicant falls into the categories barred from gun ownership, such as felons, those adjudged mentally incompetent and the like.
The Supreme Court majority claims to be guided by the original intent of the Constitution, using relevant history as a guide to determine how to apply its language to modern court cases. In this case, as they often do, the justices turned to history, asserting that there was “little evidence of an early American practice of regulating public carry by the general public.” But to reach that conclusion means not only deliberately overlooking, but also actually contradicting that historical record.
The pop culture image of American gun-toting throughout history, unencumbered by laws, is mostly a fiction. Yes, Americans have owned guns since the country’s earliest days, but handgun ownership was relatively uncommon until after the Civil War, partly because handguns were relatively expensive, inaccurate and almost entirely single-shot weapons.
Thanks to the invention of practical and reliable multishot handguns, improved manufacturing techniques and heavy marketing, civilian ownership rose (ironically, much of it in Eastern cities). But the proliferation of these guns in the late 19th century was accompanied by the rapid spread of laws restricting or barring concealed carry precisely because of their contribution to escalating interpersonal violence. Even in the Wild West of the late 1800s, carrying of guns was heavily regulated.
Similarly, contrary to popular impression, gun laws are not a creation of the 20th century but are as old as the country’s beginnings. Chief among early gun laws were strict and ubiquitous restrictions on concealed (and sometimes open) gun carrying in public. (These laws invariably included exceptions for gun transport, and for military and police to carry them.)
As early as 1686, New Jersey enacted a law against wearing weapons in public because they induced “great Fear and Quarrels.” Massachusetts did the same for those armed and “tumultuously assembled” in 1750. North Carolina enacted such a law in 1792 and Virginia in 1786 and 1794 (the period when the Constitution was written and ratified). In the 1800s, as interpersonal violence and gun carrying spread, 38 states enacted laws that restricted or barred concealed (and sometimes open) gun carrying. Five more did so in the early 1900s, yielding a total of 47 states. As the historian Saul Cornell concluded in his exhaustive study, “There was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons.”
Closely related to restrictions on concealed gun carrying were laws that criminalized brandishing and displaying weapons. These, too, date to the country’s early years. My research on early gun laws found that from the 1600s to the 1930s, at least 36 states enacted laws that penalized the brandishing or display of weapons. Half of these laws penalized the mere display or wearing of firearms and other “deadly weapons.”
The 1686 New Jersey law barred the wearing of pistols and other “unusual or unlawful weapons.” New Hampshire enacted a law in 1699 that punished anyone who “went armed offensively.” Throughout our history, the mere act of carrying guns in public was well-understood to be a threat — regardless of the carrier’s intent. That is, it was seen as increasing danger, not self-protection.
Declamations to the contrary, the same is no less true today. In fact, modern research confirms that the presence of firearms makes the likelihood of conflict escalation greater, not less. A recent study of over 30,000 demonstrations nationwide from 2020 to 2021 done by the Armed Conflict Location & Event Data Project found that armed demonstrations turned violent or destructive over six times as often as unarmed demonstrations. The fatality rate in armed demonstrations was five times that of unarmed demonstrations. If our legal past shows anything, it’s that there was no such thing as an unfettered, unregulated right of civilians to carry deadly weapons in society.
And what of the concern over personal self-defense in public, the chief justification for bringing gun carrying under the Second Amendment umbrella? During oral arguments before the Supreme Court in November, self-defense was mentioned over 50 times.
Yet, numerous studies confirm that “deregulating concealed carry restrictions increases violent crime.” One study found that the loosening of gun carry laws increased violent crime 13-15 percent. Another found that the change increased the handgun murder rate by over 10 percent. Yet another study found that gun homicide rates were 11 percent higher in states with lax carry laws compared to those with stricter laws, and that mass shootings were 53 percent higher in lax law states. Other studies confirm that restricting gun carrying reduces gun mayhem. It is thus no surprise that gun deaths in 2020 hit a record high of over 45,000, coinciding with record gun purchases and the further loosening of gun carry laws.
This dramatic and sweeping expansion of Second Amendment gun rights will have at least three consequences. First, New York and other states with similar laws will scramble to rewrite their permitting regulations in accordance with the court’s new standard. Second, the ruling will embolden a new round of legal challenges to all manner of gun laws — even if the laws challenged do not relate strictly to the Bruen ruling — because litigants will hope that this expansion will be stretched to fit other gun laws. Third, as the research shows, more gun carrying will occur, and it will lead to more gun mayhem, as our country’s founders and leaders well understood; sadly, this is one history lesson that the court majority has not learned.