Last week, in Firearms Policy Coalition v. McCraw, Judge Mark Pittman of the U.S. District Court for the Northern District of Texas struck down a Texas law that prohibited those under 21 from carrying handguns in public. The case illustrates many of the hallmarks that are likely to characterize post-Bruen litigation over contemporary gun laws. And it reinforces, for me at least, the problems that Bruen’s history-only test imposes on judges and policymakers alike.
After determining that the plaintiff organization and individual plaintiffs had standing, the court turned to Bruen. Like I and others have pointed out, including on this blog, Bruen doesn’t really discard the two-part framework that had been used across the federal appellate courts. Instead, it just refashions that test into a new two-part framework. Under Bruen Step One, as Judge Pittman noted, the court first must determine whether or not the challenged conduct is protected by the Second Amendment’s text. If the answer is yes, then the burden shifts to the government at Bruen Step Two to justify its regulation by sufficiently analogous historical laws.
At the first step, the court concluded that the Second Amendment covers the public carry of handguns by 18-20 year-olds and that the conduct is therefore presumptively protected. (While the plaintiffs framed the lawsuit as a facial challenge only as to the 18-20 age group, the challenged law applies to everyone under 21 and it’s not clear why the court’s reasoning would not also encompass 14-, 15-, or 16-year-olds.) The court observed that the constitutional text doesn’t contain any age limits (unlike the Constitution’s express age qualifications for office), and that other constitutional rights referring to “the people” are not restricted by age. This, to me, is a remarkably curious argument. What it seems to logically entail is that a law barring toddlers from carrying handguns in public presumptively covers conduct protected by the Second Amendment? And then the *only way* the court could uphold the toddler-carry ban would be to require the government to find historical analogues (analogues I suspect are lacking, at that level of specificity). Bruen wouldn’t allow the government to justify such a ban based on obvious safety rationales. What a strange, strange way to do constitutional law. Of course, the court did invoke Heller’s language about the right extending to those who are members of the “political community,” but similar rights of “the people” in the other amendments it cites do not apply only to those who are 18 or older.
At the second step, the court rejected Texas’s defense of the law as grounded in either (a) binding Fifth Circuit precedent, or (b) a rich historical tradition. Several pre-Bruen Fifth Circuit cases upheld age-based restrictions, including a 2013 decision that upheld the specific Texas law at issue. Another, the 2012 case NRA v. ATF, conducted an in-depth historical analysis but ultimately decided the case under step two of the pre-Bruen framework. And the analysis at step one, Judge Pittman said, wasn’t persuasive enough to follow. The court also found historical laws (canvassed in the NRA opinion) to be insufficiently analogous. Those laws arose around Reconstruction, and the court noted that Bruen left open the question of whether 1791 or 1868 is the relevant benchmark for finding historical tradition. However, the court essentially rejected laws arising around 1868. Those laws directly related to the purchase or use of firearms by those under 21. But the court found them insufficient:
The earliest law cited is from 1856. Accordingly, NRA’s “thorough and compelling” historical analysis is void of any laws from the Founding Era. On this point, the historical record before the Court establishes (at most) that between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the ability of those under 21 to “purchase or use firearms.” And by 1923, three more states joined with similar laws. But the record stops short and does not show any “historical analogs” from the Founding Era.
The court stated that the tradition had to go back to the Founding to justify a modern regulation. Yet, even if it did consider those laws, the court said, they still wouldn’t be enough.
At most, Texas’s historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on “the purchase or use of firearms” for those younger than 21. Based on Bruen’s guidance, however, the Court concludes these laws cannot sufficiently establish that a prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent with this Nation’s historical tradition of firearm regulation.
So almost half the states had laws regulating 18-20 year-olds less than 25 years after the Fourteenth Amendment was ratified. Not enough, said the court. It didn’t say what would have been enough or why these weren’t. The court provided no analysis for why this kind of widespread tradition wouldn’t satisfy the Bruen test, merely suggesting that these laws did not impose similar burdens because they did not prohibit public carry.
The case is problematic, not so much for its outcome (reasonable minds can differ, I think), but for its application of Bruen. I suspect this kind of bare-boned analysis and unreasoned discussion of historical tradition will be the norm—on both sides of the issue. After all, Bruen doesn’t give much else to work with.
Despite the Bruen majority’s insistence otherwise, the history-only test neither circumscribes judicial discretion nor provides clarity or predictability to the law. In many ways, Bruen magnifies discretion, offering judges the opportunity to choose from whichever historical sources they want, with little guidance or guardrails. And it certainly doesn’t make outcomes predictable or consistent. The problem with Bruen (or, at least, one big problem) is that it allows judges to make policy decisions under the guise of historical judgment. If a judge prefers stronger gun rights, then she can hold the government’s feet to the fire and reject what can at points seem like quite close historical analogues; if she is inclined in the other direction, then she can loosen that required fit (as, perhaps, was the case in the litigation over San Jose’s insurance requirement).
Some might levy a similar complaint against the pre-Bruen cases, but at least the prior framework required judges to put their cards on the table. The reason it’s pretty easy to critique the Second Circuit’s NYSRPA I decision, for example, is that the court held up the weak empirical evidence New York used to justify its law. Now, all we get is a bare conclusion that X or Y law is or is not “close enough” to the modern one. Bruen has impoverished legal analysis in Second Amendment cases and contributed to the further perception that judges deciding constitutional cases are doing so based merely on policy preferences.