What the Supreme Court’s Second Amendment expansion means for gun safety

Virtually every element of Massachusetts's gun laws will be open to challenge

THE SUPREME COURT ruled last week, in New York Rifle and Pistol Ass’n v. Bruen, that all “law-abiding” Americans have a right to carry a gun outside the home for self-defense. The decision will have serious implications for gun safety and, as its most near-term consequence, will limit the scope of existing gun license procedures in at least five states, including Massachusetts.

The Attorney General’s Office and the Executive Office of Public Safety and Security have now made clear that Massachusetts law will be altered because Bruen eliminates an important aspect of current Massachusetts licensing practice – which had been to evaluate whether a gun license applicant has a good reason to carry a gun outside their home.  This inquiry had allowed police chiefs across the Commonwealth to grant licenses to people for hunting, target shooting or self-defense at home, without also allowing the licensee to carry a gun in public wherever they go.  The “good reason” requirement thus tended to limit the number of people in Massachusetts walking around with guns on their hips.

Perhaps more importantly, SCOTUS reached its decision in a way that broadly modifies the analytical structure that courts will be required to use to evaluate the constitutionality of restrictions on gun ownership — throwing out the widely used, two part “intermediate scrutiny” test. Under intermediate scrutiny, courts had considered whether the burden on second amendment rights was outweighed by significant government interests such as public safety.

By doing so, the Court eliminated consideration of the potential consequences, including consequences to public safety, of any particular government restriction on the right to own and carry a gun. So, for example, the potential for expanded gun violence associated with a gun law, including gun safety laws, is no longer something courts are allowed to consider in determining whether that gun law is consistent with the Second Amendment.

This means that virtually every element of the Commonwealth’s gun laws is going to be open to challenge or rechallenge by the gun lobby under a standard that is very highly weighted in favor of overturning regulations that place any conceivable burden on gun ownership.

As a practical matter, more guns in public places means more gun violence. People who carry guns, no matter how “law abiding,” who get into any type of challenging situation are highly likely to use their weapon, sometimes in the mistaken belief that they are engaging in necessary self-defense. In addition, when more guns are carried in public, there is a higher likelihood that they will, for convenience, sometimes be locked in cars or left around the house when brought home, making them vulnerable to theft by criminals or misuse by children and other unauthorized persons. Massachusetts’ safe storage laws and compliance with those laws, which remain in effect, will be more essential than ever.

One legislative response to Bruen is likely to be to create “safe spaces” where firearms are prohibited. Even Justice Thomas concluded that it may be appropriate to ban public carry in “legislative assemblies, polling places and courthouses.” Others might appropriately add, at a minimum, eating establishments that serve alcohol, bars, sporting events, concert venues, places of worship, and schools. However, in creating safe spaces, the legislature should be mindful of unintended consequences. When people have to put their guns aside to enter a safe space, they will naturally store them in their cars.  Those who choose to engage in public carry will need clear rules about storing their guns to avoid being targeted for theft.

Similarly, legislators should think long and hard about regulating the manner in which guns can be carried in public. Guns carried in pockets or waistbands often cause gun accidents. Guns carried in purses and backpacks can also be dangerous or create risk of theft. Laws requiring that guns carried in public be properly holstered with a manual safety engaged would mitigate some of those risks.

Finally, under Bruen, the perils of policing have gone way up. Law enforcement officers have no way to distinguish people carrying guns lawfully from those carrying them for illicit purposes. Not only does this undermine public safety, it disincentivizes law enforcement from challenging anyone who is carrying a gun.

At the same time, as we saw in countless incidents over the last several years, police may also sometimes shoot armed but innocent people when they feel threatened. As always, this is most likely to happen in communities of color. When more people are carrying, it is reasonable to expect that these incidents will become more frequent. Police departments have little choice other than to continue to rethink their rules for engagement and de-escalation when interacting with members of the public, not just to mitigate their own risks, but also those of the people with whom they interact.

Meet the Author

Gary Klein

Principal, GKlein Consulting
Ultimately, we must continue to prioritize gun safety and to defend laws that do so under the Supreme Court’s new analytical rubric. Our lives depend on it.

Gary Klein is a former Massachusetts Assistant Attorney General, who was responsible for civil enforcement of gun safety regulations.