Scholarship Highlight: Private Transportation Gun Regulations; Bruen and Pre-Trial Criminal Defendants

[The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.]

Two new pieces of student legal scholarship are now posted examining aspects of the Bruen test.  First, in a note forthcoming in the Yale Law Journal, Josh Hochman “survey[s] rules and regulations promulgated by railroad corporations in the nineteenth century, [which he] argues . . . reveal an historical tradition of regulating passengers’ firearms.”  Hochman also asserts more broadly that “[i]ncorporating the history of non-governmental actors may have the effect of illuminating new sites where the nation has historically regulated guns in public.”  This is a fertile ground for post-Bruen research and scholarship, and at least one federal judge has relied in part on rules promulgated by private corporations when ruling on a Second Amendment challenge.  Second, in a comment that will be published in the Penn Law Review, R. Brian Tracz assesses the historical background of pre-trial firearm deprivation from criminal defendants, evaluates potential analogues, and argues “that category-wide firearms regulations of pretrial defendants without an individualized determination of dangerousness do not fit into any historical tradition of firearm regulation—including the tradition of firearm regulation for dangerous individuals.” 

Josh Hochman, The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation, Yale L.J. (forthcoming)


This Note argues that the Supreme Court’s Second Amendment jurisprudence allows, and may require, courts to consider sources of analogical precedent outside of formal lawmaking. Taking public transportation as a case study, this Note is also the first account to chart how historical firearm regulations in sites of transportation should inform the constitutional basis for regulating guns in contemporary trains and subways. Surveying rules and regulations promulgated by railroad corporations in the nineteenth century, it argues that these sources reveal an historical tradition of regulating passengers’ firearms. This case study instructs that courts and litigants can honor Bruen’s history-based test only by considering all of the nation’s history of firearm regulation, not just statutes.

Brian Tracz, Bruen and the Gun Rights of Pretrial Defendants, 172 U. Penn. L. Rev. _ (2023)


New York State Rifle & Pistol Ass’n v. Bruen announced a novel constitutional test for gun regulation. This test requires gun regulation to be “consistent with this Nation’s historical tradition of firearm regulation.” This Comment provides the first scholarly sketch of historical pretrial firearms regulations. Based on this history, I argue that forbidding non-dangerous individuals awaiting trial from possessing a firearm violates the Second Amendment under Bruen. I also reject attempts to justify gun regulation by classifying defendants as categorically unvirtuous or dangerous, by appealing to the “seriousness” of a crime (e.g., as a felony), or by analogizing pretrial release conditions to historical surety laws.

I also draw a big-picture conclusion about the Court's historical tradition analysis. Under Bruen, courts need to fabricate a suitably described historical tradition by which to compare historical and modern firearm regulations. So despite Bruen’s promise to reign in judicial discretion, its historical-tradition analysis ultimately increases judicial discretion by allowing courts to set the relevant description by which to compare historical and modern gun regulations.