Public Carry and Criminal Law after Bruen

By  Eric Ruben

Gun rights supporters appear to be on the cusp of achieving a decades-long goal: defanging licensing laws nationwide for carrying handguns in public. More than twenty 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 “proper cause,” to carry a gun. If that happens, what comes next?

More people carrying guns in public can have negative consequences. Among other things, additional gun carriers might engage in more serious crimes than they otherwise would and might threaten the public sphere in ways beyond deaths and injuries. Under those circumstances, regulation will remain a priority in much of the country. With strong licensing regimes off the table, a key focal point will be how criminal law otherwise governs gun carry and use.

This 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 be 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 ability to restrict public carry directly through meaningful licensing regimes becomes politically or constitutionally infeasible, judges, policymakers, and scholars will need to consider the propriety and efficacy of criminal law mechanisms like these to achieve optimal outcomes in a world where many more people will be armed.

Harvard Law Review, VOLUME 135. ISSUE 8. JUNE 2022