Why NY State Pistol & Rifle Association v. Bruen is a Human Rights Case, Not Just a Second Amendment Case

[Leila Nadya Sadat is the James Carr Professor of International Criminal Law at Washington University, Director of the Crimes Against Humanity Initiative and the Gun Violence and Human Rights Project, Special Advisor on Crimes Against Humanity to the International Criminal Court Prosecutor, and a Senior Research Scholar at Yale Law School. Aaron Fellmeth is the Dennis S. Karjala Professor at Arizona State University, Sandra Day O’Connor College of Law, Chair of the ABILA International Human Rights Committee, and sits on the Board of Directors of Amnesty International USA. Jonathan Hafetz is a Professor of Law at Seton Hall Law School. Jasmeet Sidhu is a Senior Researcher for Amnesty International USA. She led AIUSA’s research into the United States’ obligations to prevent gun violence and its impact on human rights for AIUSA’s End Gun Violence report: In the Line of Fire- Human Rights and the US Gun Violence Crisis.]

It may be surprising to learn that international law has something to say about the gun violence crisis in the United States, but it does. International human rights law – including treaties ratified by the United States – requires parties to use due diligence in protecting the human rights of residents and citizens. These treaties include the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination.  Customary international law, binding on the United States as on all countries, imposes similar obligations. Gun violence kills more than 40,000 Americans every year, and wounds and traumatizes thousands more.  The human rights at stake include the right to life, to personal security, to health, and to be free from discrimination. 

Because of its poor record of protecting these rights against private gun violence the United States has been criticized by the Inter-American Commission on Human Rights, the UN Human Rights Committee, and the UN Human Rights Council. The shocking fact is that the level of private gun violence in the United States is the highest in the developed world. And despite the fact that civilian ownership of firearms is higher in the United States than any other country in the world, with an estimated 390 million weapons in civilian hands in a country with only 330 million persons, access to guns remains largely unregulated. 

That is why we filed an amicus brief in N.Y. State Pistol & Rifle Ass’n v. Bruen, which will be argued before the United States Supreme Court on November 3, 2021. Bruen is the first substantive Second Amendment case to be heard by the Court since District of Columbia v. Heller, decided in 2008. The Second Amendment to the U.S. Constitution provides that “the right of the people to keep and bear Arms, shall not be infringed.” For more than 200 years, it was commonly assumed that the Second Amendment did not confer a private right to bear arms, but governed the right of states to have a militia. In Heller, a deeply divided Supreme Court suddenly “discovered” an individual right to bear arms, Justice Scalia writing for the majority over sharply worded dissents from Justices Breyer and Stevens. (In his book, The Making of a Justice, Stevens states that “Heller was the most clearly incorrect decision that the Court announced during my tenure on the bench.”) Heller only addressed handguns that are in the home for protection. It did not address other types of firearms, guns in public, or firearms owned for other purposes. Morever, even Justice Scalia conceded in Heller that there is a “problem of handgun violence in this country, and [t]he Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.” Scalia also stated that like many other rights guaranteed in the Constitution, Second Amendment rights are not unlimited. 

The Bruen case could change all of that. Bruen poses the question whether the restrictions placed by New York on concealed-carry licenses granted to the two petitioners are constitutional. Both men received licenses from the State; and both men were allowed concealed carry. However neither was given permission to carry concealed weapons everywhere in public, because neither could comply with New York’s requirement that they have a non-speculative “proper purpose” for doing so. New York’s law – which was adopted in 1913 — was upheld by the U.S. Court of Appeals for the Second Circuit in 2020, but the two petitioners challenged the restrictions placed upon their licenses as facially unconstitutional. The Supreme Court granted certiorari in April 2021 (meaning that the Court reached out for the case, which it could have decided not to hear). In granting the writ, the Court limited the question presented to whether the licenses granted to the two individuals were constitutional. Still, a right leaning Court now holding a 6-3 majority might invalidate New York’s longstanding gun safety law in Bruen, opening the door to allowing virtually any person in the United States to carry a handgun, either openly or concealed, anytime, anywhere. So the stakes in Bruen are high.

Petitioners (and the slew of amici supporting them) argue essentially that all regulation of concealed weapons violates the Second Amendment of the Constitution. What they fail to consider, however, is that the actual and potential victims of private gun violence (which include everyone in the United States) have immensely more important rights that the State is obligated to protect, including the right to life. The open carrying of firearms creates an environment of fear and intimidation- which violates the right to security of person.  Because it is well established that reasonable regulation of firearms reduces gun violence rates, and conversely, loosening of gun safety laws directly correlates to increases in gun deaths and injuries, we argue in our amicus filing that the failure to adopt common sense gun safety laws is inconsistent with the obligations of the United States to protect the human rights of its people. Laws like New York’s, which impose licensing requirements on firearm possession and public carry and thereby help fill a gap in the absence of comprehensive and effective federal gun regulation, are therefore not only consistent with the Second Amendment, as New York has argued in the case, but help the United States comply with its international human rights obligations — obligations that are binding on the United States under Article VI of the Constitution and longstanding Supreme Court precedent. 

A careful observer will notice that the Petitioners and their amici have advanced the remarkable argument that one of the problems with New York’s law is that it is racially discriminatory, even though there is absolutely no evidence that the Petitioners were discriminated against in any way. Indeed, this argument is so flawed in both facts and reasoning that it borders on the absurd.  Government data shows that the homicides caused by insufficient federal and state regulation of firearms have a striking racially discriminatory effect. Despite making up just 14.7 % of the U.S. population, Black Americans in 2019 represented almost 60% of all gun homicide victims. The disparate impact of gun violence on minority communities violates their human right to freedom from discrimination and to equal protection of the law, as noted by the U.N. Working Group of Experts on People of African Descent and the Committee on the Elimination of Racial Discrimination and the Human Rights Committee. The naive belief that more guns will solve the problem of gun violence has been disproved by study after study. In fact, higher levels of gun ownership directly correlate with higher levels of harm, which means that accepting the petitioners’ demand for nationwide gun deregulation will only aggravate the disproportionate harm to Black communities and other communities of color in the United States.  

The United States is not the only country that has suffered mass shootings and terrible gun violence. Australia, New Zealand, and the United Kingdom have experienced mass shootings and terrible loss of life. But unlike its English-speaking allies, the United States is the only country that has done almost nothing in the face of the problem. The core of our argument is that gun violence is not only a public health crisis; it is also a human rights crisis that the United States is legally obligated to address. The Supreme Court should affirm Americans’ human rights to life, security, as well as their rights to equal protection to be free from discrimination, and sustain New York’s law. As Eleanor Roosevelt stated many years ago, human rights begin at home.