On Thursday, the Supreme Court struck down a New York law that required citizens to show a “proper cause” for a license to carry a handgun in public. In New York State Rifle & Pistol Association v. Bruen, the Court determined the state’s practice, which forced applicants to show more than a desire to defend themselves to be granted a permit, violated the Second Amendment’s individual right to self-defense with a firearm. The ruling overturns New York’s law, as well as similar statutes in California, Hawaii, Maryland, Massachusetts, and New Jersey. Justice Thomas wrote for the majority in the 6-3 decision, with Alito and Kavanaugh penning concurring opinions. Justice Breyer dissented and was joined by Kagan and Sotomayor.

Bruen builds on the Court’s rulings in Heller and McDonald and provides some clear principles for lower courts. Heller and McDonald established the Second Amendment protected an individual right to keep and bear arms for self-defense. This behavior is presumed to be constitutional. After Heller and McDonald, lower courts were generally upholding gun laws using a two-step method. First, they would require a textual analysis informed by history, and then apply a “means-end test,” often of intermediate scrutiny, which would require the state to show a substantial relationship between the policy and the stated goal of curbing gun violence. Bruen essentially forces lower courts to stick to the first step of the process and discard the second.

Thomas clarifies:

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

Progressives have reacted in a manner that suggests they did not read Thomas’s argument, or did not absorb Kavanaugh’s concurrence. The fear is that using this standard, all gun regulations are in jeopardy. This is simply not the case. Thomas’s focus is on the differential treatment of citizens, by allowing those in specific circumstances to have a permit, while denying it to others. Those who can show a pattern of threats may be able to carry in public, while others could not. This distinction does not fit with the general right to “keep and bear arms.” States can still require background checks, safety courses, mental health records checks, or fingerprinting so long as those requirements are broadly applied and not conditional upon special, unique circumstances.

Kavanaugh, joined by Chief Justice Roberts, makes this plain: “…the Court’s decision does not prohibit states from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’d decision does not affect the existing licensing regimes–known as ‘shall-issue’ regimes–that are employed in 43 states.” New York’s approach, classified as “may-issue,” is defective because it “grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.” Bruen, like Heller and McDonald, allows a range of regulations within this framework.

Justice Alito and Justice Breyer argue, to a degree, based on current events. Breyer, in his dissent, argues the Court should be more sensitive to state efforts to curb the kind of violence in Buffalo and Uvalde (which tells you these opinions were recently written and revised). As such, they should be given discretion to regulate, not only to avoid mass shootings, but other forms of gun violence. Alito, rather tartly, points out “that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case did not stop that perpetrator.”

Bruen is a necessary for the Court to develop a firm jurisprudence of the Second Amendment, and it will not significantly impact gun control. While shootings in Buffalo and Uvalde are horrific, and states should consider a variety of means to curb mass violence, we do not want the Court to reflexively make decisions in light of the nightly news. Court decisions are rooted in a time and place, and cannot fully avoid that context, but for courts to function well, decisions must consider the past, present, and future. Unlike legislatures, courts should strive to be above passion, and beyond the heat of public opinion.