The Most Disputed Federal Law Post-Bruen

  • Date:
  • May 03, 2023

One federal law has generated more dissensus in the lower federal courts post-Bruen than any other: 18 U.S.C. § 922(n). That provision bars individuals under felony indictment from shipping or transporting guns or ammunition in interstate commerce or receiving guns or ammunition that have been shipped or transported in interstate commerce. Just over a week ago, a federal court in the Western District of Texas upheld the law, acknowledging that its decision parted ways with two other Western District of Texas decisions striking down the law. These split decisions are emblematic of the discord among district courts applying Bruen’s new historical method for Second Amendment claims.

There have been at least 15 lower court decisions addressing the constitutionality of the statute since Bruen. The chart below shows the breakdown among the 14 district court decisions, with a 10-4 margin in favor of those upholding the law’s constitutionality. In the 15th decision, United States v. Avila, the Fifth Circuit also upheld the provision on plain-error review, a much less searching form of scrutiny applied when a challenger did not raise the argument in the court below. Since that may not represent the view of the court after full consideration, it is not on the chart below. (Indeed, the Fifth Circuit has pending before it an appeal from the first case striking down the law, which Brandon Beck wrote about for this blog; the government recently filed a supplemental brief in that case.)

Upholding the Law

Striking the Law Down

United States v. Kays, No. CR-22-40-D, 2022 WL 3718519, (W.D. Okla. Aug. 29, 2022)

United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482 (W.D. Tex. Sept. 19, 2022)

United States v. Kelly, No. 3:22-CR-00037, 2022 WL 17336578 (M.D. Tenn. Nov. 16, 2022)

United States v. Holden, No. 3:22-CR-30 RLM-MGG, 2022 WL 17103509 (N.D. Ind. Oct. 31, 2022)

United States v. Rowson, No. 22 CR. 310 (PAE), 2023 WL 431037 (S.D.N.Y. Jan. 26, 2023)

United States v. Stambaugh, No. CR-22-00218-PRW-2, 2022 WL 16936043 (W.D. Okla. Nov. 14, 2022)

United States v. Simien, No. SA-22-CR-00379-JKP, 2023 WL 1980487 (W.D. Tex. Feb. 10, 2023)

United States v. Hicks, No. W:21-CR-00060-ADA, 2023 WL 164170 (W.D. Tex. Jan. 9, 2023)

United States v. Gore, No. 2:23-CR-04, 2023 WL 2141032 (S.D. Ohio Feb. 21, 2023)


United States v. Stennerson, No. CR 22-139-BLG-SPW, 2023 WL 2214351 (D. Mont. Feb. 24, 2023)


United States v. Bartucci, No. 1:19-CR-00244-ADA-BAM, 2023 WL 2189530 (E.D. Cal. Feb. 23, 2023)


United States v. Jackson, No. CR-ELH-22-141, 2023 WL 2242873 (D. Md. Feb. 27, 2023)


United States v. Smith, No. CR 122-081, 2023 WL 3012007 (S.D. Ga. Mar. 29, 2023), report and recommendation adopted, No. CR 122-081, 2023 WL 3010178 (S.D. Ga. Apr. 19, 2023)


United States v. Posada, No. EP-22-CR-1944(1)-KC, 2023 WL 3027877 (W.D. Tex. Apr. 20, 2023)


The disagreement over this law is deeper than just outcomes. Many of these courts disagree about how to apply the Bruen method. For example, while some of these courts consider the first step in Bruen to ask only whether the conduct is covered by the plain text, others (appropriately, in my view) consider whether the person himself is included. The courts evaluate different historical regulations when they review the law and afford them different weight. Even when viewing the same historical regulations, some courts find them analogous while others don’t, without much more than impressionistic reasoning to explain that conclusion. As Joseph Blocher & Eric Ruben detail in their forthcoming Yale Law Journal piece, this method of reasoning analogically across time is badly under-theorized, and particularly under-explained in Bruen. In many ways, 922(n) is a microcosm of the way that lower courts are floundering in trying to grasp consistent principles for applying the new test.

The four district court decisions striking down the law are noteworthy not only because they show Bruen’s disruptive effect, but also for how novel they are. Section 922(n) has a predecessor in one of the earliest federal firearms laws, the Federal Firearms Act of 1938, which barred those under indictment for crimes of violence from shipping or transporting firearms. The provision has existed, in largely its present form, since the 1960s. Yet, until September 2022, just three months after Bruen, not a single federal court had declared the law invalid (many had upheld it). The law survived for over 80 years before Bruen came along. In a five-month period after Bruen, four federal courts concluded the statute violated the Second Amendment.

It’s hard to understand why 922(n) has generated so much divergence. As I document in my forthcoming DLJ article, it is by no means the only gun law that has created split decisions. But it has created more decisions on opposite sides of the ledger than any other gun regulation—state or federal—of which I am aware. One possible reason for those diametrically opposed opinions is that 922(n) is a lower-stakes test case for Bruen’s method. It’s one of the narrower gun prohibitions in federal law. It’s doubly limited in coverage and time. First, unlike the unlawful possession laws, it applies only to new acquisitions (or interstate shipments/transport of owned guns) and doesn’t require a person who already has guns to get rid of any. Second, it applies only during the pendency of the charges. Compare that to 922(g)(1), which imposes a lifetime prohibition on not just acquisition but possession of firearms for those convicted of the same crimes that 922(n)’s indictment bar applies to. In somewhere around 100 challenges so far post-Bruen, not one court has declared the much more restrictive law—922(g)(1)—unconstitutional. That may be at least in part because 922(g)(1) is used by prosecutors much more frequently than 922(n). So one explanation could be that lower court judges might be less reluctant to strike down what they view as a rarely used, limited bar on new gun acquisition than a major piece of the federal firearms regulatory regime like the felon-in-possession law.

Whatever the reason, it is clear that lower courts are going to continue disagreeing on the constitutionality of this law until circuit courts weigh in, though the most recent trend appears to be that courts are upholding the law. The Fifth Circuit will soon settle the debate for judges within its jurisdiction, but courts in the Seventh and Tenth Circuits have also struck down the law. Another in the Tenth has upheld the law, as have courts in the Second, Fourth, Sixth, Ninth, and Eleventh Circuits. All of these courts will be called on to weigh in on the question in the near future and, if fractures develop among those circuits, it is not hard to imagine that the Supreme Court will be forced yet again to reckon with the fallout from its new Bruen framework.