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The Second Amendment on Appeal Post-Bruen

  • Date:
  • March 22, 2024

By: Jacob Charles

It has been nearly two years since Bruen upended Second Amendment law. There’s been quite a bit of the expected turmoil in that time as lower courts struggle to implement a test that is at once sui generis and ill-defined. It’s hard to say much has been settled so far among these lower courts. There’s more disagreement than agreement, on both the inquiry Bruen calls for and how that inquiry cashes out in particular challenges.

At 21 months in, here’s a picture of where the courts of appeals stand on Second Amendment claims. I’m excluding unpublished cases and cases decided on plain-error review where a criminal defendant failed to raise the issue in the trial court. The latter cases do not contain much substantive Second Amendment analysis but usually say only that the error cannot be plain where the court hasn’t previously decided the issue. E.g., United States v. Claybrooks, 90 F.4th 248, 256 (4th Cir. 2024) (“There can be no plain error where neither this nor other circuits have resolved the issues in dispute.”). And the former are not binding.

First Circuit

Second Circuit

  • Antonyuk v. Chiumento (December 8, 2023): upholding the majority of New York’s post-Bruen public carry licensing law & designations of sensitive places
  • Gazzola v. Hochul (December 8, 2023): rejecting challenge by firearms dealers to gun seller regulations because the evidence did not suggest the law was “so restrictive that it threatens a citizen’s right to acquire firearms"

Third Circuit

  • Lara v. Commissioner Pennsylvania State Police (January 18, 2024): striking down Pennsylvania statutes that effectively forbid 18-20 year olds from carrying firearms in public during declared states of emergency
  • Range v. Attorney General (June 6, 2023) (en banc): declaring unconstitutional the federal felon-in-possession ban (18 U.S.C. § 922(g)(1)) as applied to an individual with an old, nonviolent conviction
  • Range v. Attorney General (November 16, 2022) (panel opinion vacated en banc): upholding the federal felon-in-possession ban (18 U.S.C. § 922(g)(1)), even as applied to an individual with an old, nonviolent conviction
  • Frein v. Pennsylvania State Police (August 30, 2022): declaring unconstitutional the state’s indefinite retention of firearms confiscated under a valid warrant but that were not used in a crime

Fourth Circuit

  • Maryland Shall Issue, Inc. v. Moore (November 21, 2023) (vacated by en banc vote, but no new decision yet): invalidating Maryland handgun carry licensing requirements
  • *Bianchi v. Brown (January 12, 2024): granting en banc review of challenge to Maryland’s assault weapon bans; notable because the court granted en banc review after the panel heard arguments in December 2022 but before any panel opinion was published
  • *United States v. Price (January 12, 2024); granting en banc review over challenge to the federal law criminalizing the possession of firearms with obliterated serial numbers; Like Bianchi, notable because the court granted en banc review after the panel heard arguments in December 2023 but before any panel opinion was published

Fifth Circuit

  • United States v. Daniels (August 9, 2023): declaring unconstitutional the federal law barring active unlawful drug users from possessing guns (18 U.S.C. § 922(g)(3)) as-applied to a marijuana user
  • United States v. Rahimi (March 2, 2023): declaring facially unconstitutional the federal law barring individuals subject to domestic violence restraining orders from possessing guns (18 U.S.C. § 922(g)(8))

Sixth Circuit

N/A

Seventh Circuit

Eighth Circuit

  • United States v. Jackson (June 2, 2023): upholding the federal felon-in-possession ban (18 U.S.C. § 922(g)(1)) even for nonviolent underlying convictions and rejecting the need for case-by-case consideration
  • United States v. Sitladeen (April 04, 2023): upholding the federal law barring certain subsets of noncitizens from possessing (18 U.S.C. § 922(g)(5))

Ninth Circuit

  • United States v. Perez-Garcia (March 18, 2024): upholding pretrial release conditions under the Bail Reform Act that barred defendants from possessing guns pending trial on serious felony charges
  • Teter v. Lopez (August 7, 2023) (vacated by en banc vote, but no new decision yet): declaring unconstitutional Hawaii’s ban on the possession of butterfly knives
  • United States v. Alaniz (June 13, 2023): upholding sentencing enhancement for possession of dangerous weapon during drug crime
  • *Duncan v. Bonta (October 10, 2023): granting stay pending appeal and en banc review over challenge to California’s large-capacity magazine ban; notable because the en banc court accepted the case as a “comeback” case from the district court instead of referring it first to a three-judge panel

Tenth Circuit

  • Vincent v. Garland (September 15, 2023): upholding the federal felon-in-possession ban (18 U.S.C. § 922(g)(1)) even for nonviolent underlying convictions and rejecting the need for case-by-case consideration

Eleventh Circuit

  • United States v. Dubois (March 05, 2024): upholding the federal felon-in-possession ban (18 U.S.C. § 922(g)(1)) even for nonviolent underlying convictions and rejecting the need for case-by-case consideration
  • National Rifle Association v. Bondi (March 9, 2023) (vacated by en banc vote, but no new decision yet; held pending Rahimi): upholding Florida law barring 18-20 year olds from purchasing firearms 

D.C. Circuit

N/A

I count 19 court of appeals’ decisions on Second Amendment challenges, including one panel opinion vacated by a subsequent en banc decision. In fact, courts granted en banc review in seven cases in just this short time period. Four post-Bruen panel opinions were wiped off the books by the full appellate benches. Three additional cases that have yet to generate published opinions involved peculiarities related to en banc review: the Fourth Circuit twice granted en banc review after panel argument but before any panel opinion came out and the Ninth Circuit accepted en banc review of a post-Bruen district court decision that had previously gone en banc prior to Bruen. And, of course, the Supreme Court granted cert in one of the cases that did not go en banc (United States v. Rahimi).

Of the 19 published opinions, seven—or more than a third—concluded that the challenged government action violated the Second Amendment. Two of those challenger successes were vacated by the en banc court. Similarly, two government wins were also wiped away by an en banc court. The Sixth Circuit is the only regional circuit with no published Second Amendment decision, although it has at least one preserved felon-in-possession challenge currently on appeal at the panel stage (United States v. Goins, No. 23-5848).

The 19 opinions covered a broad array of issues, including the major categories of Second Amendment litigation: who can possess weapons, what weapons they can possess, when they can possess them, and where they can take them. Seven of the cases addressed various aspects of the Gun Control Act’s prohibited person categories, covering §§ 922(g)(1), (g)(3), (g)(5), and (g)(8); three considered type-of-weapon challenges such as assault weapon and large-capacity magazine bans; two addressed age restrictions; one each addressed sensitive places, gun carry licensing, pretrial release conditions, and indefinite gun seizures.

Despite a plethora of decisions, only one express circuit split arose: over whether the felon-in-possession law is categorically constitutional. The Third Circuit held that it is unconstitutional in at least some circumstances while the Eighth, Tenth, and Eleventh Circuits held that it is valid in all applications. 

Two circuits upheld assault weapon and/or large-capacity magazine bans (the First and Seventh Circuits) and two other such challenges before the en banc courts are most likely to be upheld as well (the Fourth and Ninth Circuits). As Andrew discusses in this post, none of the states within the Fifth, Eighth, or Eleventh Circuits have assault weapon or large-capacity magazine bans, and those seem to me the circuits most likely to disagree with the circuit decisions upholding such laws. (Minnesota seems the state within those jurisdictions most likely to pass something like a magazine restriction, though it’s not clear how likely that is.)

From my perspective, the only thing clear about these decisions is how well they illustrate just how badly lower courts need the Supreme Court to clarify the standard they are supposed to apply. Rahimi will likely do that for class-of-person cases, and possibly in a way that helps to resolve the circuit split over the felon-in-possession ban. But it is not clear whether the Court has an appetite to rule more broadly on the methodological concerns about applying text, history, and tradition alone. If the Court does not provide clearer guidance, we can expect many more circuit splits to develop and the law to remain unsettled.

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