How Have State Gun Laws Changed Since Bruen?

In just over ten months since Bruen was decided last June, there has been significant movement on gun regulation at the state level.  On the surface, these developments aren’t all that surprising because they generally track what one would expect given the partisan balance in each state legislature: red states have tended to roll back gun regulations, while blue states have tended to enact new gun laws.  With that said, one thing that does not seem to have changed with Bruen is that mass shooting events continue to spur some level of bipartisan agreement on certain regulations.

Several states have recently enacted (or are considering) “assault weapons” bans, an interesting trend given that no new state laws prohibiting assault weapons were enacted in more than two decades preceding Bruen.  In fact, no state had banned assault weapons since the expiration of the federal assault weapons ban in 2004 until Delaware did so shortly after the Bruen decision, on June 30, 2022.  Illinois followed with its own assault weapons ban in January, Washington state banned assault weapons on April 25 , and state legislators in Rhode Island and New Mexico have introduced their own assault weapons bans in recent months.  In Colorado, a proposed assault weapons ban narrowly failed to advance out of the House judiciary committee in an April 20 vote and will not be enacted at this time despite a large Democratic majority in the state legislature.

The Delaware and Illinois bans have been challenged in court and, in both instances, a federal judge has declined to issue an injunction.  On February 17, a judge in the Northern District of Illinois rejected a legal challenge to the Illinois ban, finding that “[t]he history of firearm regulation [] establishes that governments enjoy the ability to regulate highly dangerous arms (and related dangerous accessories)."  A second judge in the same district largely adopted that analysis and similarly upheld the Illinois law in an April 25 opinion.  On March 27, a federal judge in Delaware denied a motion to enjoin that state’s ban because he determined that historical laws were similarly “enacted in response to pressing public safety concerns regarding weapons determined to be dangerous” and (similar to Delaware’s law) did not substantially burden the right to armed self-defense.  Unlike the federal decision from Illinois, the Delaware opinion conducted a detailed analysis of the “common use” test and found that the banned weapons were in common use for lawful purposes (as I’ve written previously, I believe that judges are especially likely to focus on this inquiry post-Bruen).  A state judge partially enjoined Illinois' ban on equal protection grounds, and the state supreme court is slated to hear an appeal of that decision in May. 

We can also expect some appellate decisions shortly dealing with challenges to pre-Bruen state assault weapons bans—although some of these cases may be delayed if they are ultimately decided en banc.  Challenges to the Maryland and California bans are pending, and the Fourth Circuit heard oral argument in the Maryland case earlier this year.  The Illinois and Delaware laws mentioned above both restrict large-capacity magazines as well, and other states including Rhode Island and Oregon have passed their own standalone large-capacity magazine bans in the past ten months (these laws often implicate similar Second Amendment issues as assault weapons bans; we covered a federal decision on the Rhode Island large-capacity magazine ban here).

Another major area of movement post-Bruen is that a number of former may-issue states have passed sweeping new public-carry licensing laws and locational restrictions.  In addition to New York and New Jersey—where the laws have been challenged on Second Amendment grounds, enjoined in part at the district court level, and the cases appealed to the Second and Third Circuits, respectively—Maryland recently passed a similar law that is expected to be signed shortly by the governor.  California is debating comparable legislation, and certain Hawaii counties are considering or have enacted analogous restrictions.  In general, these laws require additional training and certifications to obtain a concealed carry permit, raise the minimum age for public carry (in some instances), and designate sensitive locations where guns are banned.  While it’s unclear how the ongoing litigation will play out, it seems almost certain that some of the sensitive-location bans will ultimately be struck down under Bruen.  Oregon went a different route and enacted a permit-to-purchase requirement by ballot initiative—the state’s implementation of that requirement has been delayed, but the state legislature is currently considering legislation on the topic.  

New York, New Jersey, Delaware and California have all acted since Bruen to pass so-called gun-industry liability laws, which generally authorize lawsuits against gun manufacturers and dealers within the predicate exception to the federal Protection of Lawful Commerce in Arms Act, or PLCAA (we discussed New Jersey’s law here, as well as an ongoing lawsuit pursuant to which that law is currently enjoined).  Michigan moved in April to pass a law requiring background checks for all gun purchases in the state and impose safe-storage requirements, and other states like Wisconsin have similarly considered proposals to expand background checks for sales not subject to the federal background-check requirements for licensed dealers.

On the deregulatory side, the former may-issue states acted via either legislation or legal opinion letter to remove their proper-cause standards for concealed carry licensing after Bruen.  Perhaps the most high-profile deregulatory move, however, has been the increasing movement toward permitless carry.  Since last June, four states have passed legislation allowing the permitless concealed carry of handguns: Indiana, Alabama, Florida, and Nebraska (Ohio’s law approving permitless carry went into effect in early June 2022; Louisiana allowed permitless carry by military veterans and is currently considering a broader permitless carry bill).  Once the Florida and Nebraska laws take effect (Florida’s is effective on July 1 and Nebraska's law, which was just signed earlier this week, will take effect on September 10), 27 states will allow permitless carry.  That is a major shift from even one decade ago, as most of these laws have been enacted since 2015.  North Carolina repealed its permit-to-purchase requirement for handguns in late March, with the state legislature overriding Governor Roy Cooper’s veto.

The past ten months have also seen a number of deregulatory changes not made directly by state legislatures, but rather by state attorneys general choosing not to defend gun laws in court.  In Tennessee, the state agreed to settle a challenge to its 21-year-old age minimum for permitless carry by lowering the age to 18 and paying the plaintiffs’ costs and attorneys’ fees.  After the August 2022 decision in McGraw, where a district judge struck down Texas’ ban on 18-20-year-olds carrying handguns in public with or without a permit (Jake summarized that decision here), the state initially filed a notice of appeal with the Fifth Circuit but later withdrew its appeal and allowed the district court ruling to take effect.  Age-based restrictions have been a frequent subject of post-Bruen litigation, and—as noted in the Eleventh Circuit’s recent decision in Bondi upholding the state’s under-21 purchase ban (which we covered here)—the Florida legislature is currently considering a proposal to drop the age minimum despite the state's successful defense of the law in court thus far. 

On one hand, recent developments suggest that red and blue states are growing further apart in their approaches to gun regulation since Bruen.  That’s not surprising, as Bruen predictably triggered a renewed effort in blue states to regulate firearms and did nothing to disrupt the deregulatory trend in red states that has been ongoing, especially with regard to public carry, for some time.  However, legal challenges to certain regulations such as assault weapons bans and locational restrictions could still shift the landscape significantly (we can expect to see major decisions from the federal appellate courts on some of these laws in the coming months). 

Another (potentially less obvious) conclusion from state-level developments over the past ten months is that Bruen has not changed the fact that mass shootings—like the recent tragic shootings at Michigan State and a parochial school in Nashville—still generate support for certain new regulatory measures no matter where they occur.  As noted above, Michigan passed background-check enhancements and safe-storage requirements after the Michigan State shooting, and the state currently seems poised to enact an extreme-risk protection order (or “red flag” law).  Similarly, in Tennessee, Republican Governor Bill Lee intends to sign an order strengthening background checks and has called on legislators to pass a version of a red flag law (however, it seems highly unlikely that such a law will actually be considered in the current legislative session).  Notably, Michigan and Tennessee would be the first two states since Bruen to enact red flag laws; such laws are currently on the books in 19 states and the District of Columbia.  While two trial courts in New York state have invalidated New York’s red flag law in recent months (we covered one of those decisions here), another court recently upheld the law and there are reasons to doubt that appellate courts will ultimately endorse the reasoning that has led some lower state courts to strike down red flag laws.  For one, there is substantial confusion in these decisions about whether the challenge is under the Second Amendment (which would mean applying Bruen’s test) or whether the challenge sounds in procedural due process. 

While bipartisan agreement on regulations such as red flag laws seems at least conceivable in the weeks and months ahead, it’s unclear how much staying power these measures will have.  Florida’s current deregulatory push includes efforts to undo age restrictions enacted in the immediate aftermath of the 2018 Parkland shooting.  If the state legislators advocating this repeal are successful, it will be difficult to accept that the reversal is data-driven (i.e., that the law failed to have its intended effect of increasing public safety).  There just isn’t enough data available yet from Florida to draw strong conclusions one way or the other—a leading empirical study on the impact of Connecticut’s red-flag law by Center faculty affiliate Jeffrey Swanson, for example, uses more than 13 years of data to reach its conclusions.  Developments in Florida, Texas, and Tennessee suggest to me that there’s perhaps an increased risk that even policy changes with bipartisan support upon enactment may devolve into partisan repeal fights in the near future.  

Bruen’s emphasis on historical tradition over empirical evidence of effectiveness in reducing homicides, suicides, and injuries may also be playing a role in these current state legislative trends.  While Bruen sets forth a legal test and does nothing to preclude considering empirical evidence in the legislative process, lawmakers must now also consider whether proposed policy changes that implicate the Second Amendment have historical support.  Even where courts have not opined directly on the post-Bruen constitutionality of specific legislation (or where courts have reached conflicting outcomes), politicians and lobbying groups who oppose certain laws often invoke unconstitutionality as a primary argument against enactment.  To me, at least, there’s an important distinction between observing that a law is likely to be challenged in court and that taxpayers will have to foot the bill for a costly legal defense—which is certainly a legitimate factor to consider during legislative debate—and asserting that a law is unconstitutional when there is, as yet, no judicial consensus.