There are several extremely worrying trends from what I’ve seen in the still nascent post-Bruen Second Amendment case law. These concerns don’t arise from disagreement with constitutional originalism or with the Supreme Court’s interpretation of the Second Amendment. They are concerns about lower courts’ capacity (and perhaps willingness) to apply a historical method in a way that appropriately sets the boundaries around the state’s role in securing public safety given the individual’s right to keep and bear arms. Whatever one’s views of the ultimate issue in these cases, the lower courts’ muddied attempts to implement Bruen should be concerning.
Bruen ushered in a test that requires courts to undertake a two-step inquiry when assessing challenges to gun laws. At step one, courts determine whether the “plain text” of the Second Amendment covers the challenged action. If the text does cover the action, the government then bears the burden of showing that the challenged regulation is consistent with the nation’s historical tradition of regulating firearms. In just the three months since the Court decided Bruen, lower courts are already showing the limits of a strictly historical test—at both stages of the Bruen inquiry.
Recall that step one requires courts to ascertain whether what the challenger wants to do falls within the “plain text” of the Constitution. One could certainly take issue with that as the standard, ripe as it is with ambiguity and lack of guidance over what constitutes “plainness.” But even taking it at face value, lower courts are botching the inquiry.
In a case decided on September 23, Rigby v. Jennings, a federal judge in Delaware struck down provisions of Delaware’s new “ghost gun” law that prohibited distribution, possession, and manufacturing of unserialized firearms. Whatever one thinks of the outcome, the court’s reasoning is quite weak. In fact, it doesn’t even correctly apply what has long been—and Bruen seems to confirm as—the test for deciphering whether a weapon constitutes a protected “arm” at all: whether the weapon is in common use by law-abiding citizens for lawful purposes. Instead of requiring the plaintiffs to offer evidence that ghost guns are commonly used for lawful purposes, the court said the state “ha[d] offered no evidence to support the assertion [that such guns were not in common use].” It even expressly rejected the notion that the plaintiff bears the burden to show the weapons are part of the “plain text,” writing that “[i]t is, however, Defendant’s burden to prove that the challenged regulation does not implicate the Second Amendment.” But it simply cannot be the case that every weapon is presumptively covered unless the government proves it is not in common use. At the very least, it seems like the statistics offered by Delaware showing that ghost guns are frequently recovered from crime scenes would shift the burden back to the plaintiff to rebut that showing (for example, by offering some evidence of lawful use). The plain text Bruen step is a threshold inquiry and Bruen talks about the burden falling on the government at the second step, which only makes sense if the plaintiff bears the burden at step one.
In United States v. Quiroz, decided on September 19, the Western District of Texas struck down the federal law barring those under indictment for a felony offense from receiving (but not possessing) firearms during the pendency of the charges. At Bruen step one, the court misread the decision. The court read Bruen to allow only an inquiry into whether “the conduct” fell within the scope of the Second Amendment’s plain text and said that, for example, bans on felon firearm possession would clearly be within the Second Amendment’s plain text because they bar “possession,” i.e, “keep[ing]” arms and the person’s status is adjudicated only at the step two. That’s a mistaken reading of the opinion. Bruen frames the inquiry at step one in terms of “conduct” only because the case concerned conduct—public carry—not a question about what weapons are protected (“Arms”) or what people are covered (“the People”). In fact, when applying the method it announced, Bruen showed that these other inquiries are properly step-one “plain text” inquiries:
It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.
(Citations omitted). The Court understood step one to require that the person, weapon, and conduct fell within the Second Amendment’s “plain text” before moving to step two. The Quiroz court failed to apprehend this important point by focusing too narrowly on the specific challenge in Bruen. That decision matters for a host of reasons, including that if certain people, weapons, or conduct are outside the scope of the Second Amendment at step one, the government doesn’t then bear the burden of presenting a historical tradition to support its regulation (which may be all the harder if the original ratifying public understood something to be outside the scope altogether and so didn’t debate it as thoroughly as modern legislatures might).
In Heller, the Court declared that governments may prohibit guns in certain “sensitive places” like schools and government buildings. Bruen reaffirmed the sensitive places carveout, and in fact used sensitive places as a prime example of how to conduct the analogical reasoning it now demands. But on August 31, 2022, a judge in the Northern District of New York, in Antonyuk v. Bruen, declared nearly the whole set of New York’s post-Bruen sensitive place designations unconstitutional with barely any analogical reasoning at all. What’s worse, the court stated that “the Supreme Court in [Bruen] effectively barred the expansion of sensitive locations beyond schools, government buildings, legislative assemblies, polling places, and courthouses.” Such a statement directly contradicts Bruen’s own language describing analogical reasoning and sensitive places. There, after listing several sensitive locations, the Court wrote that lower “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” The emphasis in the original Bruen opinion on “new” makes the Antonyuk court’s reasoning all the more perplexing.
Bruen’s second step requires the government to prove that a regulation implicating people, conduct, or arms falling within the “plain text” of the Second Amendment is consistent with the American historical tradition of firearms regulation. Bruen didn’t offer any guidance for how widespread—geographically or temporally—such a tradition must be, and lower court treatment to date does not provide confidence that district judges can figure out this question in a way likely to lead to predictability, consistency, or judicial restraint. Two cases—reaching opposite conclusions on the constitutionality of a challenged law—illustrate the problem.
Consider first the August 25, 2022 decision in Firearms Policy Coalition v. McCraw, issued by the Western District of Texas. In that case, the judge struck down Texas’s prohibition on handgun carrying by those under 21 years old, holding that 18-20 year olds have a Second Amendment right to carry and that the state had not met its burden to show that such restrictions were part of the nation’s historical tradition. Even though this was a challenge to a state law, where the Fourteenth Amendment’s incorporation of the Second Amendment made that amendment binding on Texas, the court considered Founding-era tradition to be the relevant benchmark. (Bruen helped create this mess by explicitly not deciding whether 1791 or 1868 should be the relevant time period for challenges to state laws under the Second Amendment.) That choice is debatable, but then the District Court stated that, even if it looked to Reconstruction-era history, Texas still failed to carry its burden because “[a]t 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.” (Emphasis added.) But those restrictions, said the court, can’t support Texas’s prohibition. That’s quite a strange reading of history and use of analogical reasoning, and it seems to make the existence of regulations in nearly half the states insufficient to create a historical tradition!
Contrast FPC v. McCraw with National Association for Gun Rights v. City of San Jose, decided by the Northern District of California on August 3, 2022. There, the District Court upheld San Jose’s requirement that gun owners procure firearms liability insurance. In finding that the city had “presented a sufficiently ‘relevantly similar’ historical regulation” the court relied on surety laws—which could be used to require an armed person to post a peace bond upon a complaint or suspicion that they would breach the peace—as a relevant analogue. It granted the plaintiffs’ point that one distinction between the insurance mandate and surety laws was that the latter operated after-the-fact based on individualized suspicion of potential gun misuse. But the court held such a distinction immaterial for the purposes of establishing an analogue. The court did not mention or explore how widespread surety laws were, how often they were applied or enforced, or how long such laws stayed in effect. Bruen itself focused on these aspects of surety laws, so the absence of such investigation in this decision is strange. Although the bottom line conclusion is again debatable (in my opinion), the vastly different ways that a federal court in California and a federal court in Texas looked for historical analogues indicates that Bruen isn’t delivering on its promise of consistency, reliability, and a check on judicial imposition of policy preferences.