Employer Considerations For Navigating Evolving Gun Laws

• Published date: 28 July 2022
• Subject Matter: Employment and HR, Health & Safety
• Law Firm: Littler Mendelson
• Author: Ms Kelli C. Fuqua, David Gartenberg, Rebecca Goldstein, Liran Messinger and Terri Solomon

In 2022, gun laws remain top of mind for many Americans, but particularly employers. The Supreme Court ended its 2022 term with a series of bombshell opinions, and one opinion in particular may indirectly impact gun rights in the workplace. The Supreme Court's opinion in New York State Rifle and Pistol Association v. Bruen resulted in the overturning of a century-old New York gun safety law, which required a license to carry concealed weapons in public places. The Supreme Court ruled that this law was unconstitutional, meaning that New York's law-and similar laws covering roughly a quarter of the people in the United States-are no longer viable. This article discusses the implications of Bruen for employers, as well as recent congressional and state action related to gun safety, before providing a general overview of workplace-related gun laws on a state-by-state level.

New York State Rifle & Pistol Association v. Bruen

Bruen was the first significant Second Amendment decision from the Supreme Court since District of Columbia v. Heller was decided in 2008. In Heller, the Supreme Court held that the Second Amendment protects an individual's right to possess a handgun for traditionally lawful purposes disconnected with service in a militia, such as the self-defense of one's home. The Supreme Court also acknowledged, though, that "the right to bear arms" is not a right without limits. To this end, the Court held that gun restrictions in "sensitive places"-such as areas outside of one's home, like schools, churches, or other public places-remained permissible.

Bruen tested the limits of Heller's caveat, examining exactly what type of gun restrictions could be enacted in these "sensitive places." The facts of Bruen were as follows. Petitioners are two members of the New York State Rifle & Pistol Association, each of whom applied for a license to carry a firearm on a concealed basis in New York for the purpose of self-defense. Under the challenged New York law, a resident could obtain an unrestricted license to have and carry a concealed firearm outside their home or business for self-defense only if they could establish, among other things, that "proper cause" for the license existed. New York courts defined proper cause as requiring the applicant to "demonstrate a special need for self-protection distinguishable from that of the general community."¹ If an applicant could make that showing, they would receive a license for public carry, which allowed the applicant to carry a firearm for a limited purpose.

Applying this standard, a licensing officer denied both of the petitioners' applications, finding that neither individual met the "proper cause" standard dictated by New York law. The petitioners subsequently filed suit against the state official who oversees the process of licensing applications, alleging their Second and Fourteenth Amendment rights were violated when the licensing officer denied their unrestricted-license applications for failure to meet the proper cause requirement. They argued that New York's law violated the Second Amendment by requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense.

The district court dismissed the suit, and the United States Court of Appeals for the Second Circuit affirmed, relying on a previous Second Circuit opinion holding that New York's proper cause requirement did not violate the Second Amendment because it was substantially related to an important governmental interest. The petitioners then appealed to the U.S. Supreme Court.

The Supreme Court began its analysis by rejecting the two-step framework that the Second Circuit had applied for analyzing Second Amendment challenges, which combined history with a means-end scrutiny. It did so because, according to the Court, applying means-end scrutiny would result in interest balancing by judges, and "a constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional...