Public Carry and Criminal Law After Bruen
135 Harv. L. Rev. F. 505 (2022)
7 Pages Posted: 21 Mar 2022 Last revised: 27 Jun 2022
Date Written: February 28, 2022
Gun rights supporters appear to be on the cusp of achieving a decades-long goal: defanging licensing laws for carrying handguns in public nationwide. More than 20 states have removed all licensing requirements for concealed carry, and most of the others now require little more than a background check. At oral argument in New York State Rifle & Pistol Ass’n v. Bruen, meanwhile, the Supreme Court seemed poised to strike down policies in the remaining states that limit licenses to those who can show a heightened need, or “good cause,” to carry a gun. If that happens, what comes next?
This short essay contends that if strong licensing regimes are off the table, a key focus of regulation will be how criminal law otherwise governs gun carry and use. The essay highlights two intersections between criminal law and public carry beyond licensing: the “he was going for my gun” defense invoked in several recent, high-profile trials and the deadly weapon doctrine. These intersections show how criminal law can both grant legal benefits to and erect legal hurdles for those who chose to carry a gun in public. On one hand, the “he was going for my gun” defense advantages armed defendants with greater legal leeway to use deadly defensive force, lest they are disarmed. On the other hand, the deadly weapon doctrine disadvantages such defendants by allowing juries to infer requisite mens rea for murder from the use of a gun in a homicide. If the Supreme Court in Bruen limits states’ ability to restrict public carry directly, judges, policymakers, and scholars will need to consider the propriety and efficacy of criminal law mechanisms like these in a world where many more people will be armed.
Keywords: Bruen, Second Amendment, Criminal Law, Deadly Weapon Doctrine
Suggested Citation: Suggested Citation