[This is a guest post by Anant Prakash Mishra.]

On June 23, 2022 the American Supreme Court gave its ruling in the case of N.Y State Rifle and Pistol Assn. vs. Bruen, which left the political spectrum of the nation divided. Conservatives largely hailed the court’s verdict as championing their right to ‘bear firearms’ as enshrined in the constitution. Most liberals, on the other hand, protested against it with misgivings about the aftermath of the verdict and viewed the state of affairs with skepticism. Even among constitutional law scholars, there has never been a consensus as to what qualifies as a correct interpretation of the Second Amendment. Interestingly, the second amendment of the US Constitution mentions that “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.”

In order to understand the root of the debate, let me first sketch out the facts which led to the present dispute before the US Supreme Court.

The State of New York had a law that in order to carry a fire-arm ‘inside’ or ‘outside’ of one’s home; the concerned individual would have to procure a license by satisfying a ‘proper cause’ requirement under the statute. An individual who satisfied that a ‘proper cause existed’, ‘may’ at the discretion of the authorities be issued an unrestricted license to carry such weapon in a concealed manner outside of their homes. The petitioners in the instant case applied for a license and were denied the same. Hence, they challenged this law, which had been in place for about a period of 109 years. They were unsuccessful in the inferior courts but ultimately succeeded at the US Supreme Court. The Supreme Court in a 6-3 verdict, held that the New York state law ran afoul of the Fourteenth Amendment of the American Constitution as it created an impediment for a citizen in the exercise of their Second Amendment right. The verdict was partisan in nature as the Court’s Conservative majority leaned on the side of relaxed gun ownership while the liberal minority joined the dissenting camp led by Justice Stephen Breyer.

Why the majority has erred in the judgement

The language of the Second Amendment is rather uncanny and poses a significant question as to whether the ‘right to bear arms’ was mentioned only in the context of a militia? The usage of the word ‘militia’ and ‘bear arms’ in the same vein does hint towards this interpretation. If this premise were to be accepted, then no individual will have a constitutional right to bear arms.

However, the position was clarified by the US Supreme Court in its 2008 decision in the case of District of Columbia vs Heller. The Court ruled that there is a constitutionally protected right to keep fire-arms in one’s homes for self defence. It was again re-affirmed in 2010 in the case of McDonald vs Chicago.

Yale law Prof. Akhil Amar, in his book ‘The Constitution Today’ has argued that keeping  firearms is ingrained in the American way of life and the same has a constitutional basis rooted in history. Looking from this perspective, it appears that the Supreme Court’s ratio decidendi in the Heller case is tenable and judicially sound. However, the present decision is stretching the relaxation too far and the same appears to be constitutionally unfounded. ‘Keeping a gun in one’s house’ and ‘carrying a gun in public’ cannot be put on the same pedestal because the consequences of both lie on different tangents.

If in fact, the state had a propensity to exercise its administrative discretion on license arbitrarily; the same could have been reviewed judicially on a case-to-case basis. The Supreme Court could have avoided the one-scoop sweeping approach by which it struck down the New York statute’s ‘proper cause’ requirement.

The obligation to show ‘proper cause’ in furtherance of issuing an unrestricted gun license for outdoors was a very reasonable condition formulated by the state of New York. In actual practice, the courts of New York while determining the ‘proper cause’ requirement judged  whether ‘the person in need of an unrestricted license has in fact a greater degree of danger than the general community’. Although, the Supreme Court majority frowns upon this standard and terms it as ‘demanding’; in my view, this is a perfectly balanced approach. It is to be understood that the state has a legitimate interest in regulating the said right because it is trying to ensure the safety of its own people. Additionally, not a single word in the American Constitution or any historical material on record has ever indicated that the ‘right to bear arms’ is an absolute and unconditional right. Imposing a sound and justified criterion for issuing a gun license cannot per se be deemed to have an ‘infringing’ effect on the right in question.

The majority in this case rejects the ‘means-end approach’ and instead adopts an amorphous ‘historical approach’ to adjudicate upon the dispute in question. What seems interesting is that the court appears more absorbed in the history of the second amendment combined with the framers’ will to unravel the proper context of the right. The court almost exclusively relies on the ‘Heller case’ (aforementioned) to dig into the American tradition with regards to the gun laws. The obvious irony here is that the law in scrutiny itself is a 109 years old legislation.  It is to be understood that there is only a limit to what history can teach us; under no circumstance can it serve as an exclusive guidebook for posterity. These shortcomings/limitations of an originalist interpretation admittedly involve a long-running debate and have now been understood by multiple jurisdictions. The United States is an outlier in this regard as no other jurisdiction across the globe is strictly wedded to originalism.

What does the verdict mean

While America is still in mourning and acutely wounded from the incessant episodes of harrowing mass shootings at schools and other public places, this judgement in my view further aggravates the brunt. Simply put; with the ‘proper cause’ requirement revoked, it would be well understood that the second amendment enables the citizens to bear arms in public. The question that still remains unanswered is, “In a civilized-modern state are guns necessarily the need of the hour for the citizenry?”  The court’s indifference in realizing the perils of the verdict is something that needs to be discussed and debated. The fact that more than 45000 Americans died in gun violence in the year 2020 is enough to indicate that the issue at hand is grave. In parting, I wish to express that the ‘second amendment’ or the ‘gun control’ debate is much more than a discussion on constitutional interpretation; it is a human rights issue and should be perceived that way!