Scholarship Highlight: Presumptively Lawful Regulations, Insurance Mandates, and Categorical Bans

This is the fourth post in our series summarizing new legal scholarship regarding the Bruen decision (see the earlier highlights here, here, and here).

In a new paper forthcoming in the Belmont Law Review, Kevin Schascheck considers how Heller’s list of presumptively lawful regulations might continue to influence Second Amendment jurisprudence post-Bruen.  Schascheck observes that, “[d]espite the fact that the Court did not explain how the historical analogue and presumptively lawful doctrines interact, at least five justices in Bruen were clear that the presumptively lawful doctrine remains good law.”  Schascheck ultimately argues for a burden-shifting approach within the Bruen framework to give effect to Heller’s presumptively lawful list:

[T]he government bears the burden of persuasion to demonstrate that a given law can rationally be classified as part of a presumptively lawful category. The party challenging the law may counter this claim by arguing, among other things, that the specific law at issue has an effect which is far greater than the category itself.

Adam Shniderman has a new article (forthcoming in the South Carolina Law Review) that evaluates the legal, historical, and policy considerations implicated by gun insurance mandates of the type recently enacted in San Jose, California and New Jersey.  Shniderman evaluates potential historical analogues and argues that such mandates are likely unconstitutional under Bruen:

Applying this framework to gun insurance mandates, the surety stands as the most analogous historical regulation. But these laws are distinguishable from insurance mandates in both “how” they burden the right to own or carry a gun and “why” they are being imposed. Insurance requirements lack individualization. The mandates apply to all gun owners. And premiums are not risk-adjusted. So, unlike sureties, there is little financial incentive to avoid breaching the peace.

Dave Kopel and Joseph Greenlee, in a new article titled The History of Bans on Types of Arms Before 1900, survey "one aspect of the legal history of the right to keep arms: prohibitions on particular types of arms" enacted by colonies, states, and territories.  They argue in summary that "prohibitions on semiautomatic rifles and magazines lack foundation in American legal history[, while] other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis."

Kevin G. Schascheck II, The Procedural Vitality of Heller’s Presumptively Lawful Categories (Belmont Law Review, forthcoming) (Feb. 26, 2023)

Abstract:

After Bruen, the prevailing assumption was that the Second Amendment framework shifted radically. Courts throughout the country have already invalidated key gun safety statutes while applying the new test. However, such holdings fail to grapple with the full weight of Second Amendment doctrines. A proper application of the doctrine in toto will result in no significant changes to the constitutionality of the vast majority of gun laws after Bruen.

This Article explains the underdeveloped interaction between two principal Second Amendment doctrines—presumptions of legal validity and historical analyses. The interaction, framed in its simplest terms, is that the presumption acts either conclusively or as a burden-shifting device when considering historical evidence. By making explicit the procedural assumptions in Second Amendment cases, courts applying the doctrine properly will reduce the political pressures inherent in the doctrine and maintain the constitutionality of gun safety laws.

Adam B. Shniderman, Gun Insurance Mandates and the Second Amendment (South Carolina Law Review, forthcoming) (Feb. 26, 2023)

Abstract:

In response to the Supreme Court’s Second Amendment jurisprudence, the federal, state, and local governments have searched for creative solutions to the billion dollar per year problem of gun violence. Their hope is to solve the billion-dollar problem and escape the Second Amendment’s broadening protection of gun rights. One solution pops up frequently—require gun owners to purchase liability insurance. Until recently, no mandate had been enacted. In 2022, San Jose, California and New Jersey passed laws requiring gun owners to carry liability insurance. But are insurance mandates likely to affect either the incidence of gun violence or the economic burden borne by the government or the victim? And are they likely to escape the courts unscathed?

With NYSRPA v. Bruen as a guiding framework, I dive into both the insurance and constitutional law principles at issue. Proponents argue that insurers will incentivize increased caution through risk-adjusted premiums and actuarial analysis and insurance mandates will avoid violating Second Amendment. They are wrong—policy exclusions bar coverage for most gun incidents and leave insurers with little incentive to regulate gun-related conduct. And the mandates are unlikely to survive the courts. Following Bruen, courts must examine the text and history, sometimes reasoning by analogy, to evaluate gun regulations. True, historical analysis does not eliminate the problem of judgment—there is still plenty of wiggle room in assessing gun laws. But there are several key features that distinguish surety laws, the most likely analogue, and insurance mandates. And, while the Court has yet to clarify how similar modern analogues must be or what defining features matter most, it seems unlikely that insurance mandates will pass constitutional muster.

David B. Kopel and Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900

Abstract:

This Article examines all American state, territorial, and colonial laws that prohibited possession or sale of any type of arm. Also covered are English laws before 1776, and the Dutch and Swedish colonies in America. Among the arms studied are handguns, repeating guns, Bowie knives, daggers, slungshots, blackjacks, brass knuckles, and cannons. The U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen directs lower courts to review modern gun control laws in part by analogy to historic laws before 1900. This Article provides the resources to do so, and offers its own analysis.

Besides describing prohibitory laws, the Article details other types of regulation, such as forbidding concealed carry, forbidding all carry, restricting sales to minors, licensing dealers, or taxing possession. It is the first comprehensive study of historic American laws about knives, swords, and blunt weapons. It is also the first comprehensive study of the types of arms for which colonies and states required ownership by militiamen, by some men not in the militia, and by some women. The arms regulation laws and cases of the 19th century are examined in the context of the century's tremendous advances in firearms. The century that began with the single-shot muzzle-loading musket ended with modern semiautomatic handguns and magazines. Synthesizing Supreme Court doctrine with historic statutes and cases, the Article concludes that prohibitions on semiautomatic rifles and magazines lack foundation in American legal history. In contrast, other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis.