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Constitutional Basis for the Right to Bear Arms
Second and Fourteenth Amendments
On December 15, 1791, the United States ratified the Second Amendment, which states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The Second Amendment has roots dating back to the 1600s, where King James II used militias to suppress and disarm political opposition. When the opposition revolted and ultimately displaced him in 1688, William and Mary, King James II’s successors, assured their subjects that they would never disarm them, and in 1689, they codified this assurance as the English Bill of Rights, providing Englishmen with a fundamental right to firearm possession. [1]
Fast forward to the time leading up to the American Revolution when the British army was occupying colonial America, and one can begin to understand even more clearly the need for the Second Amendment. Indeed, during that time, the British army had taken over the colonies as an imperial occupying force, and the colonists were helpless. For instance, in Boston where it consisted of a population of around 15-16,000 people and the colonial government was suspended, by 1775, British had stationed standing armies of 4,000 soldiers there (more than the population of military-age males there) to rule over and control the colonists. Worse, due to the Quartering Act that the British Parliament passed on May 15, 1765, colonies were required to house British soldiers in barracks, local inns, and many other places including private homes, although not explicitly allowed by the act. The British soldiers thus became an overwhelming force in all parts of the colonists’ lives, including in their homes. [2], [3]
The Second Amendment has roots dating back to the 1600s, where King James II used militias to suppress and disarm political opposition. When the opposition revolted and ultimately displaced him in 1688, William and Mary, King James II’s successors, assured their subjects that they would never disarm them, and in 1689, they codified this assurance as the English Bill of Rights, providing Englishmen with a fundamental right to firearm possession. [1]
Fast forward to the time leading up to the American Revolution when the British army was occupying colonial America, and one can begin to understand even more clearly the need for the Second Amendment. Indeed, during that time, the British army had taken over the colonies as an imperial occupying force, and the colonists were helpless. For instance, in Boston where it consisted of a population of around 15-16,000 people and the colonial government was suspended, by 1775, British had stationed standing armies of 4,000 soldiers there (more than the population of military-age males there) to rule over and control the colonists. Worse, due to the Quartering Act that the British Parliament passed on May 15, 1765, colonies were required to house British soldiers in barracks, local inns, and many other places including private homes, although not explicitly allowed by the act. The British soldiers thus became an overwhelming force in all parts of the colonists’ lives, including in their homes. [2], [3]
The Founders feared a national army filled with professional soldiers, like the British, could occur again, and that such standing armies would again lead to tyranny. The Founders thus knew it was necessary to ensure that the American people be able to better protect themselves through local militias. To ensure that the people can protect themselves, they ratified the Second Amendment in 1791 to protect the people’s ability to arm themselves without fear of the national government disarming them. [2]
Further, on July 9, 1868, the United States ratified the Fourteenth Amendment, which states, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” This particular provision, known as the Fourteenth Amendment’s Due Process Clause, provides both procedural and substantive due process for citizens. With respect to substantive due process, the Supreme Court held that there are certain fundamental rights that the government may not infringe even if it provides procedural protections. Why is this important here? Because prior to the Fourteenth Amendment, the Bill of Rights restricted only the actions of the federal government, not the states. However, the Fourteenth Amendment’s Due Process Clause rendered many of the Bill of Rights amendments applicable to the states. [4]
Further, on July 9, 1868, the United States ratified the Fourteenth Amendment, which states, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” This particular provision, known as the Fourteenth Amendment’s Due Process Clause, provides both procedural and substantive due process for citizens. With respect to substantive due process, the Supreme Court held that there are certain fundamental rights that the government may not infringe even if it provides procedural protections. Why is this important here? Because prior to the Fourteenth Amendment, the Bill of Rights restricted only the actions of the federal government, not the states. However, the Fourteenth Amendment’s Due Process Clause rendered many of the Bill of Rights amendments applicable to the states. [4]
And for the avoidance of any doubt that the Second Amendment applies to the states, the Supreme Court held that it does. On June 26, 2008, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Two years later, on June 28, 2010, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court held, in no uncertain terms, that “the Second Amendment right is fully applicable to the States.” Indeed, the Supreme Court stated that “it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”
New York Law Prior to the Bruen Decision
By way of background, New York’s strict standard stems back to the 1900s. In 1905, New York made it a misdemeanor for anyone over the age of 16 to “have or carry concealed upon his person in any city or village of [New York], any pistol, revolver or other firearm without a written license . . . issued to him by a police magistrate.” “In 1911, New York’s ‘Sullivan Law’ expanded the State’s criminal prohibition to the possession of all handguns—concealed or otherwise—without a government-issued license.” Two years later, in 1913, New York “amended the Sullivan Law to clarify the licensing standard: Magistrates could ‘issue to [a] person a license to have and carry concealed a pistol or revolver without regard to employment or place of possessing such weapon’ only if that person proved ‘good moral character’ and ‘proper cause.’” New York’s law leading up to the Bruen decision “largely track[ed] that of the early 1900s.” [5]
Indeed, prior to the Supreme Court’s June 23, 2022 decision in Bruen, New York required, inter alia, individuals to prove that “proper cause exists” to receive an unrestricted concealed carry permit, i.e., a permit to have and carry a firearm outside of one’s home for no particular reason. If “proper cause” was not demonstrated, New York had the right to (and did) reject individuals’ applications for unrestricted concealed carry permits. In such a situation, the applicant could only receive, at most, “a ‘restricted’ license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment.” [5]
Indeed, prior to the Supreme Court’s June 23, 2022 decision in Bruen, New York required, inter alia, individuals to prove that “proper cause exists” to receive an unrestricted concealed carry permit, i.e., a permit to have and carry a firearm outside of one’s home for no particular reason. If “proper cause” was not demonstrated, New York had the right to (and did) reject individuals’ applications for unrestricted concealed carry permits. In such a situation, the applicant could only receive, at most, “a ‘restricted’ license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment.” [5]
Notably, while no New York statute defined “proper cause,” New York courts interpreted the term very narrowly, finding that an “applicant shows proper cause only if he can ‘demonstrate a special need for self-protection distinguishable from that of the general community.’” Further, courts held the “special need” standard was demanding, finding that “living or working in an area ‘noted for criminal activity’ d[id] not suffice,” but instead “generally require[d] evidence ‘of particular threats, attacks or other extraordinary danger to personal safety.’” In other words, wanting to obtain an unrestricted concealed carry permit for self-defense, without more, failed to satisfy the “proper cause” standard, in turn making one ineligible to receive such permit. [5]
The Bruen Decision
On June 23, 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court issued a landmark decision, holding that “New York’s proper-cause requirement violates the Second and Fourteenth Amendments in that it prevents citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”
There, Petitioners Brandon Koch and Robert Nash were two New York residents, who were also members of the New York State Rifle & Pistol Association, Inc., a public-interest group organized to defend the Second Amendment rights of New Yorkers (and also a petitioner in Bruen). In 2014, Nash “applied for an unrestricted license to carry a handgun in public” simply for self-defense purposes, without claiming any unique danger to his personal safety. In early 2015, New York denied his application for an unrestricted license but granted one for a restricted license for hunting and target shooting. In late 2016, Nash requested the removal of the restrictions, but the licensing officer denied his request. Koch similarly wanted an unrestricted license for general self-defense, but New York granted him only a restricted license permitting him to carry outside the home for hunting and target shooting because he faced no special dangers. In late 2017, Koch likewise requested the removal of the restrictions, but the licensing officer denied his request.
There, Petitioners Brandon Koch and Robert Nash were two New York residents, who were also members of the New York State Rifle & Pistol Association, Inc., a public-interest group organized to defend the Second Amendment rights of New Yorkers (and also a petitioner in Bruen). In 2014, Nash “applied for an unrestricted license to carry a handgun in public” simply for self-defense purposes, without claiming any unique danger to his personal safety. In early 2015, New York denied his application for an unrestricted license but granted one for a restricted license for hunting and target shooting. In late 2016, Nash requested the removal of the restrictions, but the licensing officer denied his request. Koch similarly wanted an unrestricted license for general self-defense, but New York granted him only a restricted license permitting him to carry outside the home for hunting and target shooting because he faced no special dangers. In late 2017, Koch likewise requested the removal of the restrictions, but the licensing officer denied his request.
Respondents were the New York State Police superintendent, who oversees the enforcement of New York’s licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County. Petitioners sued respondents for declaratory and injunctive relief, “alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted license applications on the basis that they had failed to show ‘proper cause,’ i.e., had failed to demonstrate a unique need for self-defense.” The district court dismissed petitioners’ complaint and the Second Circuit affirmed. The Supreme Court thereafter granted certiorari.
In finding that the “proper cause” requirement was unconstitutional, the Supreme Court reasoned that 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,’” and explained that “[w]e know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.” Additionally, in rejecting respondents’ attempt to characterize the proper cause requirement as a “sensitive-place” law, and thus purportedly entitling the state to disarm citizens, the Supreme Court found that “there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the [NYPD].”
In finding that the “proper cause” requirement was unconstitutional, the Supreme Court reasoned that 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,’” and explained that “[w]e know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.” Additionally, in rejecting respondents’ attempt to characterize the proper cause requirement as a “sensitive-place” law, and thus purportedly entitling the state to disarm citizens, the Supreme Court found that “there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the [NYPD].”
And to alleviate any doubt that the Second Amendment affords the right to carry firearms in public (as opposed to simply keeping firearms in one’s home), the Supreme Court instructed that the “definition of ‘bear’ naturally encompasses public carry” as “[m]ost gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table.” “Although individuals often ‘keep’ firearms in their home, at the ready for self-defense, most do not ‘bear’ (i.e., carry) them in the home beyond moments of actual confrontation.” The Supreme Court thus found that “[t]o confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.”
Critically, the Supreme Court further found, after a lengthy and fulsome discussion of this country’s traditions and history, that there is no “such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” Id. at 30. The Supreme Court thus ultimately held: “At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement.”
Accordingly, the Supreme Court held that “the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.” [5]
Critically, the Supreme Court further found, after a lengthy and fulsome discussion of this country’s traditions and history, that there is no “such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” Id. at 30. The Supreme Court thus ultimately held: “At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement.”
Accordingly, the Supreme Court held that “the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.” [5]
Concealed Carry Improvement Act
In the wake of, and in response to, the Bruen decision, New York immediately implemented and enforced one of the strictest sets of gun regulations in the Nation. Specifically, one week after the Bruen decision, Governor Hochul signed legislation known as the Concealed Carry Improvement Act (“CCIA”), effective September 1, 2022, to hinder citizens’ ability to obtain concealed carry permits and increase restrictions on concealed carry weapons. Indeed, the CCIA (codified in various New York statutes, including New York Penal Law Section 400 and Section 265) created more stringent requirements to obtain a concealed carry permit while also expanding and creating additional restrictive and so-called sensitive locations where firearms are prohibited.
Constitutional Challenges to the CCIA
United States District Court Decisions
In late 2022, a quad of New York federal district court decisions rendered several aspects of the CCIA’s provisions unconstitutional and enjoined the state from enforcing such provisions. The district court decisions were as follows: (1) Antonyuk v. Hochul, 639 F. Supp. 3d 232 (N.D.N.Y. 2022) (Suddaby, J.); (2) Hardaway v. Nigrelli, 639 F. Supp. 3d 422 (W.D.N.Y. 2022) (Sinatra, J.); (3) Christian v. Nigrelli, 642 F. Supp. 3d 393 (W.D.N.Y. 2022) (Sinatra, J.); and (4) Spencer v. Nigrelli, 648 F. Supp. 3d 451 (W.D.N.Y. 2022) (Sinatra, J.).
Collectively, these decisions enjoined the CCIA's licensing requirements that required (a) an applicant have good moral character and (b) an applicant to disclose to a licensing officer (i) a list of applicant's current spouse and all adult cohabitants, (ii) a list of all former and current social media accounts from the preceding three years, and (iii) such other information as the officer may require. The decisions also enjoined the CCIA's sensitive locations provisions concerning (a) locations providing behavioral health or chemical dependence care or services, (b) places of worship, (c) public parks and zoos, (d) buses and airports, (e) places licensed for on-premise alcohol consumption, (f), theaters, conference centers, and banquet halls, and (g) gatherings of individuals to collectively express their constitutional rights to protest or assemble. The decisions also enjoined the CCIA's restricted locations provision.
These decisions have been affirmed in part and denied in part by the Second Circuit.
Collectively, these decisions enjoined the CCIA's licensing requirements that required (a) an applicant have good moral character and (b) an applicant to disclose to a licensing officer (i) a list of applicant's current spouse and all adult cohabitants, (ii) a list of all former and current social media accounts from the preceding three years, and (iii) such other information as the officer may require. The decisions also enjoined the CCIA's sensitive locations provisions concerning (a) locations providing behavioral health or chemical dependence care or services, (b) places of worship, (c) public parks and zoos, (d) buses and airports, (e) places licensed for on-premise alcohol consumption, (f), theaters, conference centers, and banquet halls, and (g) gatherings of individuals to collectively express their constitutional rights to protest or assemble. The decisions also enjoined the CCIA's restricted locations provision.
These decisions have been affirmed in part and denied in part by the Second Circuit.
United States Court of Appeals for the Second Circuit
Given the importance and substantial overlap among the 2022 district court decisions, the Second Circuit, in Antonyuk v. Chiumento, 89 F. 4th 271 (2d Cir. 2023), heard argument in tandem on March 20, 2023, ultimately rendering a decision on December 8, 2023 whereby the Second Circuit affirmed the injunctions in part, vacated in part, and remanded for proceedings consistent with its opinion. Ultimately, the Second Circuit upheld the district court’s injunctions with respect to NY Penal Law § 400.00(1)(o)(iv) (social media disclosure); NY Penal Law § 265.01-d (restricted locations) as applied to private property held open to the general public; and NY Penal Law § 265.01-e(2)(c) (places of worship) as applied to Pastor Spencer, the Tabernacle Family Church, its members, or their agents and licensees. However, the Second Circuit vacated the injunctions in all other respects, having concluded either that the district court lacked jurisdiction or that the challenged laws do not violate the Constitution on their face.
In light of the Second Circuit’s December 8, 2023 decision, the plaintiffs in Antonyuk petitioned the United States Supreme Court for writ of certiorari. The Supreme Court granted writ of certiorari and stated, in Antonyuk v. James, 144 S. Ct. 2709 (2024), that “[t]he judgment of the [Second Circuit] is vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United States v. Rahimi, [602 U.S. 680 (2024)].”
In light of the Second Circuit’s December 8, 2023 decision, the plaintiffs in Antonyuk petitioned the United States Supreme Court for writ of certiorari. The Supreme Court granted writ of certiorari and stated, in Antonyuk v. James, 144 S. Ct. 2709 (2024), that “[t]he judgment of the [Second Circuit] is vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United States v. Rahimi, [602 U.S. 680 (2024)].”
On October 24, 2024, in Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), the Second Circuit issued an order whereby it reconsidered its prior decision in Antonyuk in light of the Supreme Court’s direction to take into account the Rahimi Supreme Court ruling. In doing so, the Second Circuit issued a nearly identical opinion and reached the same conclusions that it had previously reached. With respect to Rahimi’s impact on the issues at hand, the Second Circuit found that “Rahimi involved a regulation of firearms that is quite different from any of those at issue in the present case, and thus has little direct bearing on our conclusions.” By way of background, the Supreme Court, in United States v. Rahimi, held that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” 602 U.S. 680, 702 (2024). In doing so, the Supreme Court upheld the facial constitutionality of 18 U.S.C. § 922(g)(8), which criminalizes the possession of firearms by certain individuals subject to domestic violence restraining orders. Id. at 700-01.
The Antonyuk plaintiffs appealed the Second Circuit's decision to the Supreme Court.
The Antonyuk plaintiffs appealed the Second Circuit's decision to the Supreme Court.
On April 7, 2025, the Supreme Court denied certiorari, declining to review the Second Circuit's decision on the preliminary injunctions.
Additional District Court Challenges
In addition to the above-referenced court decisions and challenges, there are other ongoing actions seeking to enjoin certain of the CCIA's provisions. For example, plaintiffs have brought actions to challenge the ammunition background check in New York State Firearms Association v. James, 2024 WL 1932050 (W.D.N.Y. May 2, 2024), to challenge the training requirement in Corbett v. Hochul, 2024 WL 3553132 (S.D.N.Y. July 26, 2024), and to challenge the fees, gun registration, and purchasing requirements in Mills v. NYC, 2024 WL 4979387 (S.D.N.Y. Dec. 4, 2024).
Sources:
[1] Strom, The Second Amendment Right to Keep and Bear Arms, FINDLAW (July 21, 2022), https://constitution.findlaw.com/amendment2.html#:~:text=In%20the%20late%201600s%2C%20King,fundamental%20right%20of%20all%20Englishmen; Historical Background on Second Amendment, https://constitution.congress.gov/browse/essay/amdt2-2/ALDE_00013262/.
[2] Mosvick & Donnelly, Scholar Exchange: Second Amendment Briefing Document, at 2, NATIONAL CONSTITUTION CENTER, https://constitutioncenter.org/media/files/Second_Amendment_Briefing_Document.pdf.
[3] History.com Editors, Parliament passes the Quartering Act, HISTORY (last updated Mar. 18, 2024), https://www.history.com/this-day-in-history/parliament-passes-the-quartering-act.
[4] Amdt14.S1.3 Due Process Generally, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S1-3/ALDE_00013743/#essay-4.
[5] New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
[1] Strom, The Second Amendment Right to Keep and Bear Arms, FINDLAW (July 21, 2022), https://constitution.findlaw.com/amendment2.html#:~:text=In%20the%20late%201600s%2C%20King,fundamental%20right%20of%20all%20Englishmen; Historical Background on Second Amendment, https://constitution.congress.gov/browse/essay/amdt2-2/ALDE_00013262/.
[2] Mosvick & Donnelly, Scholar Exchange: Second Amendment Briefing Document, at 2, NATIONAL CONSTITUTION CENTER, https://constitutioncenter.org/media/files/Second_Amendment_Briefing_Document.pdf.
[3] History.com Editors, Parliament passes the Quartering Act, HISTORY (last updated Mar. 18, 2024), https://www.history.com/this-day-in-history/parliament-passes-the-quartering-act.
[4] Amdt14.S1.3 Due Process Generally, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S1-3/ALDE_00013743/#essay-4.
[5] New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
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