Public Carry versus Public Health — The Harms to Come from the Supreme Court’s Decision in Bruen

In June, the U.S. Supreme Court ruled in New York State Rifle & Pistol Association v. Bruen that the Second Amendment provides a constitutionally protected right to carry firearms in public. The decision is already creating turmoil in the form of political and public backlash and a scramble by policymakers to find new ways to combat the growing gun-violence epidemic in the United States. The majority opinion in Bruen, written by Justice Clarence Thomas, will have a devastating impact on efforts to mitigate gun violence and address racial disparities, but the reasoning used in the decision could cause even more havoc moving forward.

In Bruen, the Supreme Court struck down a 1913 New York law requiring persons seeking a permit to carry guns in public to show they had a specific need for doing so. To meet this “proper cause” requirement, an applicant had to provide more justification than a general desire to have a weapon in case a need for self-defense arose. Often referred to as a “may issue” licensing regime — which was present in five other states and the District of Columbia, collectively covering approximately 80 million people — this type of law gave local law enforcement some discretion to determine whether there was sufficient reason for issuing a permit to carry a concealed weapon.

In striking down the law, the Court paid no attention to escalating gun homicides — which have reached rates this country has not seen in decades — or to the fact that the law was New York’s attempt to balance protection of Second Amendment rights with public safety. Although the Court could have ruled that the law was being enforced too strictly, it instead invalidated the law entirely, on the basis of its radically expanded interpretation of the Second Amendment, while giving no weight to the state’s interest in reducing the number of firearms in the public sphere. Ultimately, all that mattered was the right of “law-abiding citizens” — an ambiguous term not further defined — to decide they wanted to carry a gun to protect themselves.

Declaring may-issue regimes invalid and creating a constitutional right to carry firearms in public will harm public health. First, research using large data sets and increasingly sophisticated analytic techniques has linked lax regimes allowing people to carry guns in public with increased gun violence.1 Moreover, allowing more guns in public does nothing to address the real drivers of criminal behavior, which include social determinants such as poverty, neighborhood violence, poor education, and substandard housing.2 Instead, an increased presence of firearms in public is likely to escalate confrontations, with data suggesting either that people who act aggressively are more likely to arm themselves or that people who are armed are more likely to act aggressively — or perhaps both.1

Second, an increase in the number of firearms in public is likely to exacerbate both racial disparities in gun violence and racial injustice. Historically marginalized communities — especially Black men — already suffer disproportionately from gun violence.3 When such violence increases in response to Bruen, it will undoubtedly be used to justify more intensive policing that disproportionately affects Black men and other marginalized communities, increasing the risk of government-inflicted harm. We need only consider well-known cases such as those of Philando Castile, Tamir Rice, and John Crawford III to recognize the high prevalence of racial biases and prejudice in law enforcement.

A more heavily armed public is likely to magnify this risk. Although the concept of the law-abiding citizen may have some appeal, it takes just a single pull of the trigger for a person to transform from law-abiding citizen to murderer. People are incapable of predicting with any accuracy when an armed stranger in public might make this shift. Instead, stereotypes and biases are likely to inform perceptions of who is a risk and who is not. Data reveal that viewing Black faces and bodies triggers thoughts of crime, that Black men and boys are often perceived to be larger and stronger than they actually are, and that young Black males are perceived as older and more physically threatening than they are.4

Meanwhile, the chances of getting justice retroactively for violence between citizens are small, since the same biases influence judges’ and juries’ determinations of whether a lethal act was “reasonable.” For example, in so-called stand-your-ground jurisdictions, people are empowered to use lethal force in public without any attempt to retreat if they “reasonably” fear for their safety. The odds that this line of defense will be used successfully when the shooter is White and the victim is Black are five times as high as the odds when the roles are reversed.5

These consequences also lead to broader public harm in the form of continued deterioration of mental health. Our conception of gun violence is often too narrow and should include harms beyond gun deaths, such as isolation, stress, anxiety, and post-traumatic stress disorder. Increased gun violence, fear of other people carrying firearms, and tension with police could cause many people to self-isolate to avoid frightening public settings, which could further exacerbate mental health problems. We have seen during the Covid pandemic what isolation and public health crises can do to mental health. Meanwhile, mass shootings are already creating a generation of schoolchildren who live in constant fear of shootings in their school or community, and active-shooter trainings themselves can cause mental health problems.3 All these risks have been increased by Bruen.

Even as the Court’s decision may directly exacerbate gun violence, the reasoning behind it could make matters even worse. The Court held that a firearm restriction is constitutional only if the government provides ample evidence that similar laws were in place in the 18th and 19th centuries, to demonstrate consistency with the traditional regulation of firearms. Setting aside the problems with relying on policies that were in force at the country’s founding (such as legal slavery) and during Reconstruction (Black Codes and lynching), the notion that the policies available for addressing modern gun violence are limited to those that held sway hundreds of years ago is illogical.3 Yet because Bruen dismissed New York’s law despite the fact that it was strikingly similar to restrictions permitted in several jurisdictions in the past, near-exact historical consensus is apparently the new standard. Such a standard raises serious doubt about restrictions on certain firearms, such as the AR-15, and bans on large-capacity magazines, because Bruen also states that Second Amendment protections extend to “modern instruments that facilitate armed self-defense.” Thus, history evidently constrains policies addressing gun violence but not the weaponry used to carry it out.

No right is absolute, and the government is able — if not obligated — to prevent harm to the broader public even in the exercise of constitutional rights. Such authority holds for the speech and religious practices covered by the First Amendment, and the Second Amendment should be no different. But the Court’s new theory of the Second Amendment compels lower courts to ignore public health research, empirical evidence, the current gun-violence epidemic, and other rights and liberties of the broader public. Work to stem gun violence can and will persist, including efforts currently under way in New York and California, but the Supreme Court’s elevation of history above all other concerns has undoubtedly created a much more difficult path forward to accomplish that goal.