Student Scholarship Highlight: Post-Bruen Doctrinal Development

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

The Duke Law Journal recently published two new pieces of student scholarship examining the post-Bruen Second Amendment landscape. 

The notes were initially written for the seminar class taught by Center faculty director Joseph Blocher and executive director Andrew Willinger in fall 2023.  In Finding a Purpose in Bruen’s World, Tim Southam examines how the history and tradition test impacts the legislative process through a detailed analysis of how Illinois’ 2023 assault weapons and large-capacity magazine ban was enacted.  And, in By Scalpel or Chainsaw: The Status of Pre-Bruen Case Law in the Lower Courts, Thomas Moy uses the federal ban on gun possession for unauthorized immigrants as a case study to explore how the lower courts are treating pre-Bruen circuit cases decided under step one of the now-discredited two-step test.

Timothy J. Southam, Finding A Purpose in Bruen’s World, 74 Duke L.J. 1305 (2025) 

Abstract:

Fewer than seven months after the Highland Park mass shooting, the Illinois General Assembly passed the Protect Illinois Communities Act (“PICA”), a statewide ban on assault weapons and large-capacity magazines. Gun-rights advocates have characterized PICA (and other similar strong state gun laws) as unconstitutional laws intentionally enacted to defy the Supreme Court’s protection of the right to keep and bear arms. In response to such severe accusations, especially in light of New York State Rifle & Pistol Ass’n v. Bruen, this Note assesses these claims using PICA as a case study. Through an investigation of its legislative history—an investigation that analyzes everything from floor-debate transcripts to committee-hearing recordings—this Note observes that PICA’s drafters and supporters were constitutionally conscientious when they enacted the assault weapon and large capacity magazine ban.

To help other state legislators avoid accusations of defying their oaths of office, this Note also investigates the Seventh Circuit’s application of Bruen’s text-and-history test to hold PICA to be likely constitutional. This inquiry makes two related findings. First, it would be prudent for state legislators to articulate their purpose for enacting a firearms ban in the text of the ultimate bill. Second, to accomplish this first task, state legislators should avoid resorting to procedural shortcuts—like the gut and replace tactic used to pass PICA—to enact firearms bans. If constitutionally conscientious state legislators wish to respond meaningfully to gun violence with strong gun regulation, they must still respect the legislative procedural processes. Ultimately, even if the ends are legitimate, the means must always be proper.

Thomas Moy, By Scalpel or Chainsaw: The Status of Pre-Bruen Case Law in the Lower Courts, 74 Duke L.J. 1347 (2025)

Abstract:

The Second Amendment is in a state of flux. After the U.S. Supreme Court decided District of Columbia v. Heller, the lower federal courts coalesced around a means-end scrutiny test to judge the constitutionality of gun control laws. But enter New York State Rifle & Pistol Association v. Bruen. The analysis now centers around a test that focuses on text, history, and tradition. Courts have a new test with few guidelines about how to apply it. 

Given the lack of guidance, courts have struggled to answer a key question: What pre-Bruen case law is still valid? Utilizing the undocumented immigrant prohibitor, 18 U.S.C. § 922(g)(5), this Note answers that question. Before Bruen, eight federal courts of appeals had the opportunity to address the constitutionality of § 922(g)(5), and all of them upheld the statute using three different methods. After Bruen, some courts have treated each method differently, demonstrating the particularity with which they analyze Bruen and its implications—what this Note calls the “scalpel approach.” Others have abrogated all pre-Bruen precedent, thus starting the Second Amendment analysis anew—the “chainsaw approach.” In the end, this Note argues that the scalpel approach better reflects core judicial values like uniformity and institutional legitimacy and thus is the correct path for courts applying Bruen to take.