What’s Brewing with Bruen?
By Kenneth Cooper*
On June 23, 2022, the United States Supreme Court vitiated a century-old licensing scheme regulating firearms in New York. While the impact from New York State Rifle & Pistol Association v. Bruen was felt immediately by those pursuing gun control measures to reduce gun violence, its shockwaves were felt also in criminal law, reviving a question of whether the benefit to public safety provided by gun control outweighed the harm created by its racially discriminatory enforcement.
Background on Bruen
Prior to Bruen, New York’s gun licensing law, also referred to as the “Sullivan Law” required applicants seeking to carry concealed firearms to show “proper cause” to be issued an unrestricted license (i.e., the license to carry a concealed firearm). Courts had previously interpreted proper cause to require a showing of a special need for self-defense “distinguishable from that of the general community or of persons engaged in the same profession.”
Enter the New York State Rifle & Pistol Association. The association, on behalf of two of its members, brought an action against the superintendent of the New York State Police and the local state district court judge who oversees licensing applications after the two members were denied to have their already granted firearms licenses be “unrestricted.” The Plaintiff brought a 42 U.S.C. § 1983 claim alleging the Second and Fourth Amendment rights of its members were deprived. The U.S. District Court for the District of Northern District of New York dismissed Plaintiff’s claim, and the Second Circuit Court of Appeals affirmed. Both courts relied on Second Circuit precedent upholding the proper-cause standard. The U.S. Supreme Court took issue with the Second Circuit’s analysis which consisted first of a consideration of the historical interpretation of firearm regulation and second of an application of intermediate or strict scrutiny, to be inconsistent with previous cases which expressly reject the application of intermediate or strict scrutiny. Then, applying the historical analysis, the Court found the respondents failed to “identify an American tradition justifying New York’s proper-cause requirement.” Accordingly, the Court found the licensing regulations to violate the Second and Fourteenth Amendments.
Impact on Criminal Justice
Bruen’s aftermath, through the lens of the Second Amendment and gun control, is relatively clear: it expands previous Second Amendment case law (e.g., District of Columbia v. Heller) and reads the Second and Fourteenth Amendments to protect the right to carry firearms outside of the home. Moreover, from the standpoint of civil liberties and analyzing government restrictions thereof, Bruen adds an interesting nuance to Second Amendment cases, rejecting the analysis using intermediate and strict scrutiny and instead favoring a historical analysis of the Second Amendment.Its impact on criminal law, on the other hand, is not immediately apparent. However, throughout Bruen’s litigation, the New York State Rifle & Pistol Association received support from an amicus brief filed by unexpected parties who shed light on Bruen’s impact on criminal law: public defenders. In the Brief for Black Attorneys of Legal Aid, the Bronx Defenders, and Brooklyn Defenders Services, the amicus underscore Bruen’s potential impact through the lens of criminal law and emphasizes the reevaluation that must be held following the invalidation of the licensing law.
The public defenders’ argument is twofold: that the “licensing regime criminalizes the exercise of the Second Amendment,” and that as a result, their clients are often prosecuted for exercising their rights. The brief goes to great detail in highlighting the severity of the statutes criminalizing the unlicensed possession of a firearm. For example, N.Y. Penal Law § 265.15(4) makes the unlicensed possession of a firearm “presumptive evidence to use the same unlawfully against another.” As a result, unlicensed possession “is legally sufficient to establish” second-degree criminal possession of a weapon, a violent felony. What’s more, the brief demonstrates the disparity in both the enforcement and the prosecution of the licensing regime. For example, the New York Police Department grants a special certification to former officers to make it easier to obtain a license. Additionally, statutes expressly waive licensing application fees for former police officers. Not only is there a disparity in how difficult it is to obtain a license, the brief argues, but disparities also exist in the enforcement against and prosecution of unlicensed possession. Looking at the NYPD historic arrests data for the arrests made for gun possession in 2020, “96% of arrests . . . were of Black or Latino people.” Out of the prosecution of the same charge (criminal possession of a weapon in the second degree), “80% of people in New York who are arraigned are Black while 5% are non-Hispanic white.” In short, the public defenders assert that the “NYPD unilaterally decides whose firearm possession is an unlicensed crime and whose is a licensed right.”
With this in mind, the Court’s opinion in Bruen directly relates to preventing racially discriminatory enforcement by targeting the law that was enforced in the first place. Perhaps this impact could lead those in authority to rethink the amount of discretion given to law enforcement, taking more steps to create fair enforcement of the law and not one based on unilateral whims.
Fight Against Gun Violence Continues
Shortly after the Bruen opinion was published, New York passed the Concealed Carry Improvement Act, enhancing storage requirements, setting a minimum age requirement, and creating zones which prohibit the carrying of firearms. Moreover, the new legislation has eliminated the “proper cause” requirement. Even so, Bruen opened the proverbial floodgates against seemingly any effort towards gun control. At the beginning of October, a federal judge in the Northern District of New York blocked the Concealed Carry Improvement Act’s regulation of “sensitive” zones which do not permit firearms, including museums, theaters, stadiums, and Times Square. Shortly thereafter, a federal judge in the Western District of New York blocked the Act’s ability to regulate firearms in places of worship.
The amicus brief by the New York Defenders challenges the tension between eliminating racial disparities in prosecution and enforcement of the law and reducing gun violence. These objectives obviously are not mutually exclusive. The clear fact that they are not mutually exclusive illustrates a likely pitfall of any subsequent legislation: the discretion behind the enforcement and prosecution of firearm possession. Though enforcement and prosecutorial discretion may be necessary for the practice of law and for public safety, prosecutorial discretion has as much potential to harm as it does to help if left unchecked. Given that the central thesis of the amicus brief calls attention to the flawed enforcement practices, there is a notable difference between the position of the amicus and the position the aforementioned federal courts have taken. Namely, the amicus brief targeted the Sullivan Law because of the way it regulated who can carry firearms; whereas the two opinions which came out of the federal courts in New York prevent any regulation of where firearms can be carried, rather than who can carry them.
 New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022).
 Press Release, New York Att’y Gen. Office, Attorney General James Successfully Defends New York’s Gun Control Laws, https://ag.ny.gov/press-release/2022/attorney-general-james-successfully-defends-new-yorks-gun-control-laws.
 Bruen, 142 S.Ct. at 2122.
 N.Y. Penal Law § 400.00(2) (2021).
 E.g., In re Klenosky, 428 N.Y.S.2d 256, 257 (1980).
 Bruen, 142 S.Ct. at 2125.
 Id. at 2129–30 (citing District of Columbia v. Heller, 554 U.S. 570 (2008)).
 Id. at 2138, 2156.
 Id. at 2156.
 Id. at 2135.
 Id. at 2131.
 Brief for Black Attorneys of Legal Aid, the Bronx Defenders, Brooklyn Defender Services, et al., as Amici Curiae in New York State Rifle and Pistol Association, Inc. v. Bruens, 142 S.Ct. 2111 (2022) [hereinafter “Brief”].
 Id. at 6, 15.
 Id. at 7–8.
 Id. at 11.
 Id. at 11; N.Y. Penal Law § 400.00(14).
 Brief at 15.
 Id. at 15.
 Id. at 12.
 Press Release, New York Governor’s Office, Governor Hochul Announces New Concealed Carry Laws Passed in Response to Reckless Supreme Court Decision Take Effect September 1, 2022, https://www.governor.ny.gov/news/governor-hochul-announces-new-concealed-carry-laws-passed-response-reckless-supreme-court.
 People v. Rodriguez, 171 N.Y.S.3d 802, 806 n.6 (2022).
 Jonah E. Bromwich, Federal Judge Blocks N.Y. Gun Law, Finding Much of It Unconstitutional, N.Y. Times (Oct. 6, 2022).
 Hurubie Meko, New York’s Gun Law, Already in Jeopardy, Is Dealt Another Blow, N.Y. Times (Oct. 21, 2022).
*Kenneth Cooper, J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 41 Managing Editor