History in Practice: How Have Lower Courts Applied Bruen So Far?

  • Date:
  • August 03, 2022

Since Bruen was issued on June 23, lower courts have begun to apply its new framework to Second Amendment challenges.  As of today there are no major developments in the four cases that the Court GVR’ed shortly after Bruen, which include a challenge to Hawaii’s proper-cause analogue, two magazine-capacity cases, and a challenge to Maryland’s assault weapons ban.  However, in the month following Bruen, some state and lower federal courts have issued decisions invoking Bruen.  This post summarizes a handful of notable decisions.

  • In Fooks v. State, a Maryland state appellate court rejected a criminal defendant’s challenge to the state’s felon prohibitor—which encompasses a conviction for any common law crime that results in more than two years’ imprisonment. The plaintiff in Fooks was convicted of criminal contempt for failing to pay child support and sentenced to over four years in prison.  He was then charged with, and pled guilty to, illegal possession of a firearm because of his felon status.  The court held that Maryland’s felon prohibitor was “presumptively lawful,” that serious criminal offenders are not law-abiding citizens even if their crimes were nonviolent, and that the challenge therefore failed at the first “step” of Bruen because the regulated conduct was not within the scope of the Second Amendment.
  • United States v. Daniels, from the Southern District of Mississippi, considered a challenge to the federal statute that prohibits drug users or addicts from possessing guns, 18 U.S.C. § 922(g)(3). In contrast to Fooks, Daniels assumed that 922(g)(3) does regulate conduct covered by the Second Amendment—although the court noted that “there is some doubt” about this because of Heller and Bruen’s repeated references to “law-abiding” citizens.  On the second prong of Bruen, the Court relied heavily on the 7th Circuit’s 2010 decision in United States v. YanceyYancey concluded that there is a historical tradition of disarming dangerous or “unvirtuous” citizens such as “intoxicated persons.”  Accordingly, the court held that 922(g)(3) is supported by historical analogues and rejected the Second Amendment challenge.
  • A judge in the Eastern District of California noted, in Pervez v. Becerra, that Bruen did not impact California’s state law prohibiting those certified as mentally ill from possessing guns. The opinion made only a passing mention of Bruen in a footnote, but it did suggest that the question can be answered at step one because of the “presumptively lawful” language, without conducting a historical analysis.
  • In Clifton v. Department of Justice, a judge in the Eastern District of California rejected a challenge to the mentally-ill prohibitor in 18 U.S.C. § 922(g)(4). The court ultimately decided the case on an alternate basis: because the plaintiff plausibly alleged that he had never been “committed” as required by 922(g)(4), the motion to dismiss was denied.  However, the judge noted in dicta that, “[b]ased on the presumptive constitutionality of § 922(g)(4) due to the historical evidence supporting laws barring the mentally ill from owning firearms, the undersigned strongly believes that § 922(g)(4) would be upheld by the Supreme Court” even after Bruen.
  • People v. Rodriguez, a New York trial court opinion, dealt with a criminal defendant arrested for illegally possessing guns without a license. The court rejected the argument that Bruen “confers an absolute entitlement to possess concealed firearms in public, license be damned.”  The defendant in the case conceded that he had never applied for a state license to carry a gun in public.  Therefore, the court found that he lacked standing to challenge New York’s licensing regime and rejected his Second Amendment challenge because Bruen recognizes that states may continue to condition concealed carry licenses on objective application criteria.
  • On July 22, a Colorado federal judge granted a TRO and restrained enforcement of a Colorado town’s assault weapons ban in Rocky Mountain Gun Owners v. Superior.  The Superior law defines “assault weapons” to include many semi-automatic weapons, as do other state and local assault weapons bans. This was an emergency application and there is not a great deal of analysis: the judge determined that the plaintiffs had a substantial likelihood of success on the merits of their Second Amendment claim because semiautomatic weapons are in common use for self-defense and therefore covered by the text of the Second Amendment, and went on to note that “the Court is unaware of historical precedent that would permit a governmental entity to entirely ban a type of weapon that is commonly used by law-abiding citizens for lawful purposes, whether in an individual’s home or in public.”  The opinion cited Judge Traxler’s dissent in Kolbe and other federal decisions for statistics showing that semiautomatic weapons are popular and thus in common use.  Notably, though, because of the emergency posture, the town had no opportunity to defend its ban—either by arguing that covered weapons are not “in common use,” or by pointing to analogous historical restrictions. 
  • The Maryland Court of Appeals applied Bruen directly in Matter of Rounds, a challenge to the state’s “good and substantial reason” requirement for concealed carry applicants. The court found that this proper-cause analogue was unconstitutional after Bruen and held that the applicant was entitled to a license.  That said, it bears noting that Rounds was previously denied a public carry license despite asserting that “he frequently purchases silver . . . from persons unknown to him, and he sometimes carries [large amounts of] cash . . . to make these purchases.”