Manufacturing Outliers

Last term, the Supreme Court issued its first major Second Amendment decision in more than a decade, New York State Rifle and Pistol Association, Inc. v. Bruen. The case concerned a challenge to New York’s century-old “may-issue” regulation, which required applicants to show “proper cause” to receive a license to carry a concealed handgun in public. Petitioners described New York’s may-issue law as an outlier compared to forty-three other states with more relaxed “shall-issue” or permitless carry laws. At oral argument, Paul Clement, representing the petitioners, framed the case as a simple request: “[W]e’d like what they’re having.” In a 6-3 majority opinion striking down New York’s law, Justice Clarence Thomas embraced petitioners’ characterization of the regulation as a contemporary outlier—and went further, casting it as a historical outlier as well. New York and supporting amici had amassed a