Restrictions on select kinds of semi-automatic firearms (often labeled assault weapons) are back in the news after the Supreme Court last week declined to halt Illinois’s new law. The request to the Court came on the justices’ so-called shadow docket, where the challengers were seeking emergency relief before the Seventh Circuit had even considered the case. Despite support from several gun-rights organizations as amici, including one group represented by veteran advocate Paul Clement, who successfully represented the challengers in Bruen, the Court denied relief over no noted dissents. While the denial itself is not surprising, given the posture of the case, the absence of noted dissents was somewhat unexpected. This post (a sort of follow-up to Andrew’s early post-Bruen highlight) attempts to lay out the state of play on litigation over assault weapons bans and when and where we can expect the most consequential rulings to come from. It then highlights some notable aspects of a recent California state appellate court ruling.

The litigation challenging Illinois’ law will now proceed to the Seventh Circuit. The panel has consolidated multiple challenges to the law, including trial court rulings striking down the law and upholding it. It has issued a stay to keep the law in effect during the pendency of the litigation and scheduled argument for June 29. The panel consists of Judges Easterbrook, Wood, and Brennan. It’s not entirely clear which way the panel will be inclined. Judge Easterbrook, a Reagan appointee, wrote an opinion upholding an assault weapons ban before Bruen using something like balancing. Judge Wood, a Clinton appointee, has previously voted to uphold gun laws against Second Amendment challenge, even dissenting from denial of rehearing en banc in the case striking down a public carry ban. Judge Brennan is a Trump appointee.  I do not see cases where he has expressed a Second Amendment opinion (he did vote to send one case back to the district court for reconsideration under Bruen, something not all conservative judges are keen on). The oral arguments next month will likely shed more light on the judges’ views.

Another case to watch is Bianchi v. Frosh, a challenge to Maryland’s assault weapons ban currently pending in the Fourth Circuit. The court heard oral arguments in December 2022 and has yet to issue an opinion, which means one could come any day. News reports from the argument suggest that the panel “appear[ed] poised to strike down Maryland’s ban on semiautomatic assault-style weapons as unconstitutional in light of a recent Supreme Court decision and based on the argument that the firearms are commonly used by law-abiding citizens for self-defense.” That panel includes Judges Niemeyer, Richardson, and Thacker. Judge Niemeyer, a Reagan appointee, previously voted to invalidate this same law before Bruen, while Judge Thacker, an Obama appointee, voted to uphold it; Judge Richardson, a Trump appointee, wrote an expansive decision striking down age restrictions on Second Amendment grounds before Bruen.

The Third Circuit also has an assault weapons case before it. In that case, Delaware State Sportsmen’s Association v. DDSHS, the district court upheld the law. The appeal was docketed in April, but I do not see a panel yet assigned.

There are also ongoing challenges to other assault weapon laws that have yet to reach decision—many thanks to Andrew for collecting these: California (Miller v. Bonta), which is awaiting decision from a notoriously pro-gun judge, Connecticut (NAGR v. Lamont), Massachusetts (Capen v. Healey), New Jersey (Cheeseman v. Platkin), which is before the judge who just issued a more than 250-page opinion invalidating many parts of NJ’s sensitive-place law, Washington (Hartford v. Ferguson), and municipal bans in Colorado, a state that does not preempt local gun regulation (Rocky Mountain Gun Owners v. Superior).

In California, a few weeks ago a state appellate court upheld the state’s assault weapons ban against Second Amendment challenge. In People v. Bocanegra, the defendant challenged the constitutionality of the state’s ban after he was convicted of unlawfully possessing an AR-15 (as well as other charges he did not appeal). The court considered prior state appellate decisions upholding the ban still good law, because they were predicated on the notion that assault weapons are dangerous and unusual, not on the kind of means-end scrutiny the Bruen court rejected. Applying Bruen’s new method, the court “again conclude[d] the Second Amendment’s plain text does not cover defendant’s conduct.” It said that AR-15s and the other assault weapons banned under the law are like M16 rifles that Heller said may be banned because they are dangerous and unusual weapons. One interesting aspect of the analysis here will likely be a battleground on which future battles over weapons restrictions are fought.

California was the first state to ban assault weapons, back in 1989. The Bocanegra panel noted that, when the statute was passed, the evidence “strongly suggests that there was no prevailing belief at the time that citizens commonly used assault weapons for the lawful purpose of self-defense.” In other words, the weapons were not in common use when they were first banned in 1989. “And,” the court continued, “because California’s statute prohibiting the possession of assault weapons has been upheld and operative in the interim, by definition, and with exemptions that need not be discussed here, these weapons are not presently possessed by law-abiding citizens in California for lawful purposes.” Critics of the common use test (myself among them) might not like this implication. Judge Easterbrook, for example, once quipped that “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned.” But, despite those misgivings, that seems to be where Heller leaves us on the test for weapon protection.

The California court acknowledged that assault weapons are indeed common in other jurisdictions, but it found that fact irrelevant to whether California can ban the guns. It also dismissed the notion that California can be characterized an as outlier “given California’s outsized population, economy, cultural influence, and, most importantly, its 30-year history and tradition of assault weapon regulation.  Moreover, since the passage of the AWCA in 1989, several states have followed California’s lead and passed laws banning assault weapons in at least some form, most recently in 2023.” Rather than an outdated relic, it said, the state is at the vanguard of regulatory intervention.

I do not know what the Supreme Court will ultimately do when it confronts an assault weapons ban, but in addition to the conceptual difficulties with its common use test, it will have to grapple with conclusions of the sort that the panel made here. Does it make sense to look at national trends for gun buying or possession when assessing a single state’s law? If so, what theory justifies doing so? Is outlier status dependent on the size or influence of a state or is it purely a numbers game? As more of the cases recounted in this post reach decision, the Supreme Court will face increasing pressure to weigh in.

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.)

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.

I try to answer that question with a new data set that I compiled and have now incorporated into my forthcoming Duke Law Journal article, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History. The short answer is that the decision has been extremely disruptive, with courts declaring more laws invalid under the Second Amendment in the eight months after Bruen than they did in the first few years after Heller. (For comparisons, I relied on Joseph Blocher and Eric Ruben’s excellent empirical study of approximately 8 years of lower court precedent in the wake of Heller.) Below I present several charts exploring the different ways to look at the lower court decisions. And, cognizant of the fact that I may have made a mistake in classification (and given that my paper is still in draft form), I’m posting the data set that I compiled here. I am more than happy to receive any feedback about the coding, though some choices were irreducibly subjective, as I discuss more fully in the piece. If you find any coding errors, feel free to reach out to me at jacob.charles@pepperdine.edu. I’m hopeful that this can also help folks who want to slice the data in other ways, such as charting successes by geographic region, circuits, party of the appointing president, etc.

First, below are the three charts I made showing the cases, claims, and type of challenges in which a federal court issued a decision opining on the constitutionality of gun laws. After these charts, I’ll provide some caveats and details about the process I used to generate them.

Table 1: Second Amendment Decisions Post-Bruen (6/23/2022 – 2/23/2023)

Table 2: Second Amendment Claims Post-Bruen (6/23/2022 – 2/23/2023)

Table 3: Claim Categories & Success Rates Post-Bruen (6/23/2022 – 2/23/2023)

I compiled these cases using Westlaw search results for all federal cases that cited Bruen and then narrowing down from there. I removed cases that did not involve Second Amendment issues and cases that provided no relevant insight, such as orders remanding cases to lower courts. I then categorized the type of claim at issue and determined whether the court vindicated that claim, such as by ruling (or, in some small subset of cases, stating in a non-binding way)[1] that the government action violated the Second Amendment. Only those pre-February 23 cases in the Westlaw database at the time I most recently updated the results (March 13, 2023) were included, which means that there may be some federal district court orders issued that were not part of this analysis. I also did not analyze state court decisions applying Bruen.

In grouping claims where a civil lawsuit raised multiple different challenges, I did not generally separate out every single statutory provision a plaintiff challenged as a different claim. Rather, when there were numerous provisions challenged, I most often grouped them by topic. So, for example, even though plaintiffs challenged numerous individual places that New York and New Jersey designated as a sensitive place, I grouped all “sensitive place” challenges raised in the same lawsuit together as one claim. It is also worth noting that among the successful claims, one case may be skewing results. The Antonyuk case had three rounds of decisions with three sets of claims each time, all considering at least some provisions within each category of the challenged laws unconstitutional. That single case therefore constitutes nine of the successful civil claims. In addition, the challengers claimed many different places New York designated as “sensitive” were unconstitutional, but because of how I grouped them all together as a single “sensitive place” claim, the fact that the court did not invalidate every single provision is not reflected in the list showing that the sensitive-place claim prevailed.

I am not claiming that these are the only ways to classify or categorize the cases. One could, for example, break apart each statutory provision challenged in each case. That would lead to more total claims, but also more total successful claims (so it might be a wash in terms of overall success rates). One could also include state cases to provide a more comprehensive picture about Bruen’s effect. One could also exclude habeas cases (which uniformly rejected challenges in this set) or include only final orders, and exclude interim relief, vacated decisions, or non-binding opinions. There are many different ways to assess the effects of Bruen in the lower courts. In the article, I also provided a lengthy qualitative analysis of how and on what points lower courts are disagreeing about how to implement the test. The biggest, and to me undeniable, takeaway from the cases so far is that Bruen has been more impactful, more quickly, than Heller. But as to what exact win percentage the cases generate, that all depends on how one chooses to make judgment calls about the categories.

As Joseph and Eric’s work shows, successful claims after Heller trickled in like a stream, with only a small handful of wins even a year-and-a-half out from the decision; Bruen, by contrast, has come on like a tidal wave. On the one hand, that’s surprising because Heller marked a significant turning point in federal constitutional law. Prior to June 26, 2008, individuals had no cognizable Second Amendment claims in court (outside the 5th Circuit, which had held similar to Heller in 2001). After that date, all manner of Second Amendment claims were viable. So one might have expected significant doctrinal changes. On the other hand, Heller described its holding narrowly and carved out a set of presumptively lawful laws that covered the bulk of the most frequently invoked firearm regulations. And Heller didn’t incorporate the Second Amendment against the states either. Still, I think these data show that it wasn’t so much Bruen’s holding that the Second Amendment protects a right to carry in public that generated such monumental shock waves, but (like many of us predicted) the sweeping new test. That test was, as the district court called it in United States v. Alaniz, “a revolutionary constitutional framework.”

With the government’s request that the Supreme Court review the Fifth Circuit’s holding in Rahimi, the Court might soon have a chance to offer more guidance to the lower courts.

[1] I included magistrate report and recommendations and, in one instance, a court decision that dismissed the case on standing grounds because the judge spent more than a dozen pages explaining why he would have found the laws unconstitutional (as he later did, once standing was established): Antonyuk v. Bruen, No. 22-CV-0734GTSCF (N.D.N.Y. Aug. 31, 2022).

Andrew’s post on the Fifth Circuit’s recent decision in United States v. Rahimi summarizes it well and criticizes some of the more problematic aspects. I want to take a step back and see what light it sheds on Bruen’s test. To my mind, there are two levels at which to consider the Fifth Circuit’s decision: (1) how it applies Bruen’s test, and (2) what its application reveals about Bruen’s test.

[NOTE: On March 2, the Fifth Circuit panel withdrew its prior opinion and filed a revised opinion, which reaches the same result regarding the constitutionality of 922(g)(8).]

Assessing the Application

There can be reasonable dispute about whether the panel properly applied Bruen’s test. On the one hand, the court fairly lays out the new test, which requires the government to put forward historical tradition, and then uses the two metrics Bruen laid out (the how and why) to test whether the challenged modern regulation is sufficiently analogous. On the other hand, there are some odd moves within the application of the test. I’ll focus on three.

First, the panel concluded that neither Bruen nor Heller restricted the scope of the Second Amendment to law-abiding, responsible individuals. It noted a debate between judges on different circuits (the Third and Seventh) over the question of whether individuals fall within the Second Amendment’s ambit. It then selected a theory that brings nearly everyone inside that scope, relegating questions about restrictions to the second stage historical inquiry. It said a contrary ruling would (1) contradict Heller & Bruen, (2) unjustifiably treat the Second Amendment different than other individual rights, and (3) have no limiting principle. Acknowledging that the Supreme Court spoke in terms of law-abiding citizens, the panel said that “read in context, the Court’s phrasing does not add an implied gloss that constricts the Second Amendment’s reach.” Instead, those phrases “meant to exclude from the Court’s discussion groups that have historically been stripped of their Second Amendment rights.”

What’s most surprising about this discussion is that the court doesn’t cite a single Fifth Circuit case in this section of the opinion, despite a plethora of precedent dealing with the very question of who gets Second Amendment protection. This is all the more surprising because Rahimi grounds its conclusions in Heller as much as Bruen (given that the latter adds no new guidance on who is protected), so one might expect that post-Heller pre-Bruen caselaw would be relevant. In fact, the Rahimi court seems to read both Heller and the Second Amendment directly contrary to a prior Fifth Circuit panel in United States v. Portillo-Munoz—a case Rahimi does not cite once. In that 2011 case, the panel concluded that undocumented immigrants did not fall within the scope of the Second Amendment. Unlike Rahimi, the Portillo-Munoz court found Heller’s precise phrasing important: “The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens. Illegal aliens are not ‘law-abiding, responsible citizens’ or ‘members of the political community’ and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.” Portillo-Munoz, contra Rahimi, found Heller to limit the scope of Second Amendment protections.

Portillo-Munoz also rejected the argument—embraced by Rahimi—that reading the Second Amendment this way would unjustifiably make it different from other individual rights. In considering whether the Second Amendment should be read consistently with the Fourth Amendment (which also protects rights of “the people”), the Portillo-Munoz found ample reason for a distinction.

[E]ven if there were precedent for the proposition that illegal aliens generally are covered by the Fourth Amendment, we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people. The purposes of the Second and the Fourth Amendment are different. The Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government. Attempts to precisely analogize the scope of these two amendments is misguided, and we find it reasonable that an affirmative right would be extended to fewer groups than would a protective right.

The Rahimi court doesn’t quite explicitly contradict Portillo-Munoz on this point because Rahimi does not speak in terms of the Fourth Amendment analogy, but Rahimi still quickly dismisses an argument that the Second Amendment might have a different coverage than other individual rights—an argument that Portillo-Munoz directly credits.

A second odd aspect of the implementation concerns Rahimi’s understanding of the historical tradition step. As Andrew noted, the court strictly read the requirement that the how and why of a historical law had to match fairly precisely the how and why of a modern law. And that led to at least one very strange ground for distinction. The government had offered laws from the founding period that disarmed groups of individuals that the legislature considered dangerous. But those could not serve as proper analogues to 922(g)(8), said the court, because they applied more broadly and for broader purposes than the federal prohibition.

Despite some facial similarities in how these “dangerousness” laws worked—like § 922(g)(8), they operated to disarm covered people—there were also material differences. For one, they disarmed people by class or group, not after individualized findings of “credible threats” to identified potential victims. Even more, why they disarmed people was different. The purpose of these “dangerousness” laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another. Therefore, laws disarming “dangerous” classes of people are not “relevantly similar” to § 922(g)(8) such that they can serve as historical analogues.

That is an exceedingly strange reason to dismiss historical analogues. The court says that they applied to more people and were based on group characteristics rather than individualized findings, and sought to counteract broader public harms than protecting individuals from “specific threat.” In other words, the court seems to be saying that the challenged federal law is too narrowly tailored to the problem it seeks to solve. Does that suggest that making the prohibition less targeted would be more likely to insulate it from constitutional invalidity? It seems the court just needed a reason to distinguish the laws. I have no doubt that, if the situation were reversed, the court would still distinguish the history away (e.g, if the law it was reviewing was a broad-group based prohibition and the proffered analogue was a narrow one that required an individualized showing).

Third, also in the second stage of the Bruen test, the court inexplicably dismissed several proposed analogues on grounds that the states later changed their laws, as if laws in effect at the time of the Second Amendment’s ratification become less probative because future legislatures saw different needs at different times. (Bruen did make longevity relevant in uncertain ways, but the court here seems less concerned with duration than with future alteration.) Consider its treatment of three state laws that required firearm forfeiture for anyone going armed to the terror of the people, in Massachusetts, Virginia, and New Hampshire. Those three laws were in effect at the founding, but the court still found a way to discard them. “[F]airly early on, Massachusetts and Virginia dropped forfeiture as a penalty, . . . thereby undercutting the Government’s reliance on those laws.” How early? Well Massachusetts amended its law in 1795, but although the court finds the proximity to the Second Amendment’s enactment persuasive, it doesn’t provide any evidence to suggest the amendment had anything to do with the Second Amendment. But Virginia did not do so until 1847—more than half a century after the Second Amendment’s ratification! I’m not quite sure how that can be characterized as “early on.” (And it bears emphasizing that other courts facing challenges to federal laws have viewed laws enacted more 50 years after ratification as too late to shed light on original meaning.)

With those two state laws dismissed, it was down to New Hampshire. Given no evidence that New Hampshire jettisoned its forfeiture provision in the same period, the court could now safely dismiss New Hampshire as merely “one outlier” that could not support a tradition. (An adjacent problem is the court’s emphasis on the forfeiture penalty in the old statutes because the federal law under review does not require forfeiture of any firearms; a person who is prohibited from possessing guns can transfer or sell them or remove them from his custody and control during the pendency of the disqualification, but he doesn’t lose them for good.)

The panel’s application of Bruen’s test is, at times, surprising. But that’s not to say the entire implementation is so one-sided. Other conclusions the court reaches, some of which Andrew observes, seem in line with what Bruen likely imagined for application. That leads to the other level at which to view the decision.

What the Application Reveals

Even though I highlighted some strange ways the court applied the test, I don’t think the conclusion is entirely inconsistent with Bruen. To be sure, reasonable minds can differ on whether a given historical precursor is “sufficiently analogous,” and as Andrew notes the district courts are split on whether 922(g)(8) is constitutional after Bruen. Some have found the laws that Rahimi surveyed relevantly similar, while others have agreed with the Fifth Circuit that they are not.

But Rahimi is a reasonable implementation of the new test, and I think that underscores the problems with Bruen. Consider what one district court that reached the same conclusion as Rahimi said after looking to historical tradition: “This straightforward historical analysis . . . reveals a historical tradition likely unthinkable today. Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.” Or what Rahimi itself said, quoting, Bruen: “[W]e conclude that § 922(g)(8)’s ban on possession of firearms is an outlier that our ancestors would never have accepted.” That’s . . . basically the point. Our founders wouldn’t have accepted laws disarming domestic abusers because they did not even criminalize most domestic abuse. They safeguarded a husband’s right to beat his wife, so long as he didn’t inflict permanent injuries, not a wife’s right to be free from terror and violence.

What I think is one of the most problematic aspects of Bruen’s new test—as I detail in a draft article here—is that it requires treating the lack of historical regulations as dispositive. It doesn’t distinguish between, and therefore doesn’t require inquiry into, what different reasons there might be for past inaction. But obviously—as Justice Breyer emphasized, way back in Heller—“we must look, not to what 18th-century legislatures actually did enact, but to what they would have thought they could enact.” This caution went unheeded in Bruen. No matter why the founding generation didn’t enact a law, the absence makes similar laws untenable today. And decisions about modern domestic violence prohibitions reveal a darker rationale for the lack of historical regulations: Sometimes our ancestors didn’t regulate guns in a certain way because they didn’t care about the interests gun-wielders invaded. By making the lack of similar historical regulations fatal to modern gun regulations, Bruen freezes in time the founders’ values about whose interests matter.

In the decade and a half since Heller, there has been a considerable amount of scholarship and litigation about the spaces where the Second Amendment extends. Bruen settled some of those questions by granting a right to publicly carry with no showing of need. And it suggested there could be permissible restrictions in certain sensitive locations. But there have also been questions about the status of gun rights on private property. A large number of states currently have laws mandating that at least some private property owners allow guns to be stored in cars parked on their property, whatever the owner’s preference or wishes (known as parking lot laws). And some states, like Texas, provide by statute that guns are by default allowed on private property with, as the state explains, “an option for private property owners to post a sign that prohibits the carry of firearms (handguns and long guns) on the property.” Those signage requirements can be onerous, and the state notes that, “It’s possible that a private property owner would need to post multiple signs in order to ban both unlicensed carry and licensed carry.” But to be sure they can exercise their right to exclude, “Property owners should consult an attorney for advice on the proper signage for their situation.”

Two years ago, in Cedar Point Nursey, Chief Justice Roberts extolled the right to exclude as fundamental:

The right to exclude is one of the most treasured rights of property ownership. According to Blackstone, the very idea of property entails that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. In less exuberant terms, we have stated that the right to exclude is universally held to be a fundamental element of the property right, and is one of the most essential sticks in the bundle of rights that are commonly characterized as property. (Citations and quotation marks omitted.)

That decision struck down a California law requiring temporary access to private property, and some commentators think the precedent it set threatens some versions of parking lot laws as well.

But even beyond parking lot laws, the permissive gun default has remained in many places—a default that presumptively allows guns on private property unless an owner expressly objects (and sometimes, as in Texas, objects in the specific way the statute provdes they must). In their 2020 book Weapon of Choice, Ian Ayres and Fred Vars advocated for flipping the default as a mechanism to empower private property owners to exercise choice and protect their property interests. This option was generally seen as constitutionally unproblematic because all it does is restrict guns from a place where there is no Second Amendment right to carry them (private property) and then give property owners the choice to “opt in” to being a gun-friendly property, as opposed to requiring them to “opt out” to become a gun-free zone.

In spite of that general understanding, two federal district court decisions in New York have recently held that New York’s post-Bruen legislation flipping that default is unconstitutional. The first is the omnibus ruling from Judge Suddaby in Antonyuk v. Hochul on November 7th. The latest is a decision by Judge Sinatra in Christian v. Negrelli on November 22nd. The Christian ruling is narrower than Suddaby’s ruling in Antonyuk, in two respects. First, the decision only covers the private-property-default provision of New York’s law and, second, the decision only applies to private property held open to the public, though the court said its rationale extends to even private property not open to the public, but that it was constrained by the relief the plaintiff asked for in fashioning the scope of the injunction.

Both decisions leave something to be desired in their reasoning. I’ll focus on Christian in this post. The court skipped over the “plain text” threshold analysis that Bruen requires before the government bears the burden of showing a historical tradition. Presumably the court thought it clear that “bear” covered the case. But, if so, this is another in a long line of problematic cases that highly generalize from the regulated conduct without explaining why that’s the right level of inquiry—for example, Christian doesn’t explain why the challenged conduct is “bearing arms for self-defense” instead of “bearing arms for self-defense on private property.” It’s not clear the latter is clearly within the “plain text.” In any event, the court did say that Bruen’s reference to a right to carry a gun “in public” was “not a limitation.” Bruen simply extended Heller from the home to the public, but “[t]he Court did not indicate that the right ceased at the property line of others.” I was particularly stunned by that last line. Of course my right to engage in conduct (whether constitutionally protected or not) doesn’t extend past another person’s property line without their consent. My first year Torts students grasp this intuitively before I ever tell them a word about the intentional tort of trespass to land.

Skipping past the step one “plain text” inquiry, the court first brushed aside concerns about its ability to decipher the historical record. It quoted Bruen’s assurance that the parties have to cite the right evidence and then added that “[t]he historical record itself, and not expert arguments or opinions, informs the analysis.” It then dismissed several of the laws that New York and its amici put forward to show a tradition of regulating guns in private spaces. Those weren’t sufficient in number (echoing other courts, the Christian court said 7 contemporary laws weren’t enough in Bruen, so fewer are insufficient here) and there wasn’t enough evidence that they were enduring laws or enforced frequently.

Finally addressing the elephant in the room, the court observed that New York pointed out that private property owners have always been able to exclude guns. Yes, said the court, “[b]ut that right has always been one belonging to the private property owner—not to the State. It is the property owner who must exercise that right—not the State.” Yet it seems clear to me that setting a default rule by statute is not exercising the right to exclude; after all, New York freely allows these property owners to opt-in to be a gun-friendly zone. The right to exclude (plus the right to include) still belongs to the property owner. Nonetheless the court concluded that the default rule set in the past can’t be changed: “The Nation’s historical tradition is that individuals may carry arms on private property unless the property owner chooses otherwise.” And thus (by definition) there is no historical tradition for New York’s inversion of the default rule.

In the course of its opinion, the court made what appear to me to be several arguments that are in significant tension, if not outright contradictory. On the one hand, the court emphasized that the Second Amendment right is important even in private spaces. “The right to self-defense is no less important and no less recognized on private property.” It drew on Justice Alito’s Bruen concurrence, which painted a picture of an increasingly dangerous world with threats around every corner. New York’s default switch means that “law-abiding citizens are forced to give up their rights to armed self-defense outside their homes, being left to the mercy of opportunistic, lawless individuals who might prey on them and have no concern about the private property exclusion.” On the other hand, the court underscored property owners’ (constitutional) right to exclude guns. “Nothing in this decision purports to impact the traditional property right to exclude others, so long as the property owner (not the State) is the one actually exercising that right.” Thus, the court in one breath says guns are all but necessary to fend off “lawless individuals” on private property, and in the next says that of course owners can strip carriers of that protection if they want. That seems incongruous at the very least.

In the end, either the Second Amendment right extends onto private property or it doesn’t. If it does, how can the law allow private property owners to exclude guns? How can it ratify private gun-excluding decisions by using state power to enforce, e.g., trespass laws (see Shelley v. Kraemer)? If it doesn’t, how is there a Second Amendment claim at all? I’ll end with a quotation from conservative Judge Gerald Tjoflat in a pre-Bruen 11th Circuit case dealing with a challenge seeking to bring guns onto private property over the owner’s objection:

Thus, property law, tort law, and criminal law provide the canvas on which our Founding Fathers drafted the Second Amendment. A clear grasp of this background illustrates that the pre-existing right codified in the Second Amendment does not include protection for a right to carry a firearm in a place of worship against the owner’s wishes. Quite simply, there is no constitutional infirmity when a private property owner exercises his, her, or its—in the case of a place of worship—right to control who may enter, and whether that invited guest can be armed and the State vindicates that right. (Emphasis added.)

If the state can “vindicate[]” the right of property owners to exclude after the fact by arresting and prosecuting trespassers (i.e., those who carry over objection), why can’t it vindicate that interest ex ante by establishing a default rule that serves that interest and still allows property owners who desire guns on their property to opt-in?

Last Monday, many of us awoke to the terrible news about a shooting at the University of Virginia on Sunday night that left three students dead and two others injured. Another public college not far away, Virginia Tech, was the site of a horrific mass shooting in 2007 that killed 32 people and injured 17 others—and spurred a campus carry advocacy movement. As I’ve written about previously, supporters of guns on campus organized in response to the Va. Tech shooting and sought legislation that would require public colleges and universities to allow carrying firearms on campus. They were successful in a number of states through legislation (e.g., Texas in 2015) and in some through litigation (e.g., Colorado in 2012, though advocates were unsuccessful in Montana courts). According to the National Conference of State Legislatures, as of 2019, 10 states allowed gun carrying on campus.

Another state may soon be joining that list, at least if the plaintiff prevails. In Wade v. University of Michigan, the challenger argues that the University’s firearm ban violates his Second Amendment rights. An appellate court previously upheld the regulation, and the case went up to the Michigan Supreme Court. In an order issued last week, the high court vacated the appellate court ruling and remanded the case for reconsideration in light of Bruen.

Justice David Viviano wrote separately, concurring in that remand order “to offer a few thoughts about how [Bruen’s new test] might apply here.” Justice Viviano first noted that the appellate court’s prior ruling had upheld the regulation at least in part on the grounds that universities were considered “schools” and that Heller had said bans in schools were okay. That, he thought, wasn’t sufficient. Heller didn’t clearly bless all bans in all places that could be considered schools. For Justice Viviano, Bruen’s new test meant that there were “at least two historical investigations needed to determine whether the University of Michigan’s firearm regulation is constitutional.”

First, the lower court would have to search for analogous regulations in the historical record. In passing, he stated that his “initial review” revealed some regulations but that “none seems to have been a campuswide ban generally prohibiting open or concealed carry.” Curiously, the laws he cited from this initial review did not include the many university regulations that were complete bans, like those at the University of North Carolina (1799) and the University of Virginia (1824). UVA’s regulation, approved at a board meeting attended by Thomas Jefferson and James Madison, was comprehensive: “No student shall, within the precincts of the University, . . keep or use weapons or arms of any kind.” UNC’s even older regulation was similar: “No student shall keep . . . fire-arms; nor shall he use fire-arms without permission from some one of the Faculty.” (The latter strikes me as not all that dissimilar to the University of Michigan’s challenged regulation that bars guns on campus unless “the University’s Director of Public Safety waives the prohibition for an individual ‘based on extraordinary circumstances.’”).

Second, Justice Viviano thought an additional historical inquiry was required. Even assuming there were analogous (or even identical) bans on guns on college and university campuses in the founding era, maybe that’s not enough. Courts should ask, he said, “are large modern campuses like the University of Michigan’s so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions?  In other words, are historical campuses the best analogy for the modern campus?” He pointed to the ways that universities have changed over time and how many now have, like the University of Michigan, “areas on campus, such as roadways, open areas, shopping districts, or restaurants, [that] might not fit the ‘sensitive place’ model suggested by Heller.”

There are a few noteworthy aspects of this concurrence. First, the surprising absence of readily available examples in Justice Viviano’s opinion (from UNC and UVA) raises yet more concerns about what judges are doing in these cases. Despite not uncovering these accessible sources, his opinion does cite to pro-gun scholarship co-authored by a lawyer who has served as counsel of record in high-profile litigation to one of the most litigious and aggressive advocacy gun-rights groups in the country, the Firearms Policy Coalition.  

Second, his suggestion that “historical campuses” may not be “the best analogy for the modern campus” makes the search for proper analogies even more fraught. Already, courts are spinning trying to figure out what an analogous regulation is that doesn’t have to be a “historical twin” or “dead ringer.” Now Justice Viviano says that maybe even restrictions in the same type of location wouldn’t be enough. Compare this stringent test to the way Bruen and other lower courts have asked if the historical law and contemporary law were addressing “the same alleged societal problem.” Recall that for Bruen, if a modern law seeks to combat a similar social problem as one that existed in the founding era, it is evidence of unconstitutionality if the Founders addressed the problem differently.

According to Bruen—and Heller before it—the laws at issue in those cases were addressing gun violence in primarily urban areas. Those were regulations “the Founders themselves could have adopted to confront that problem,” and the absence of similar regulations from that bygone era suggested the modern laws were unconstitutional. In other words, to the Bruen majority, the social problem of gun violence in urban areas was the same for the Founders in 1791 and the D.C. City Council in 1975. The legislators chose to confront the problem in different ways, and we have to respect the Founders’ way. In that context, then, the inquiry is made at an extremely high level of generality—guns hurting people in cities—but in the historical analogy context, Justice Viviano argues for slicing it very narrowly, requiring a much closer resemblance between the laws than Bruen says are required for assessing the social problems meant to be addressed. The result is an even more onerous burden on the government to sustain contemporary gun laws.

One of the most wide-ranging challenges to New York’s comprehensive post-Bruen gun regulatory framework was brought in Antonyuk v. Bruen. There, the court struck down many provisions of the new law. I wrote about the court’s ruling for Slate and, as you can tell from the piece, I think the Antonyuk court bungles much of the analysis. Andrew has also covered the decision multiple times on this blog – here, here, and here. While Antonyuk is important, there are also other ongoing challenges to New York’s new law, including a decision in Hardaway v. Negrelli from October 20, which takes an even more expansive view of the Second Amendment than (the already expansive view of) the Antonyuk court. Andrew summarized the decision in Hardaway here, focusing on its analysis of colonial-era history. This post examines other aspects of the decision and how Hardaway is emblematic of the inconsistent and unpredictable results in the lower courts since Bruen.

The issue in Hardaway concerned one specific place where New York’s new law prohibits guns: “any place of worship or religious observation.” In Antonyuk, despite striking down locational restrictions in lots of places, including airports, summer camps, domestic violence shelters, and others, the court actually upheld most of the place-of-worship ban. It considered a variety of historical statutes and concluded that New York can generally bar guns from those places, but that the provision must “contain an exception for those persons who have been tasked with the duty to keep the peace at the place of worship or religious observation.”

The court’s opinion in Hardaway runs for 40 pages. Most of those pages are factual background, standing analysis, and then a staggering 14 pages that consists almost entirely of select quotations from Heller, McDonald, and Bruen. Those pages were not, for the most part, spent teasing out the ways to implement the Court’s ruling, but instead purely copied-and-pasted from the earlier opinions. The court spent fewer pages applying the relevant test to the facts than it did excerpting snippets from that trio of cases.

In describing Bruen’s history & analogy test, the court several times emphasized the “high bar” that Bruen set up. It then underscored that “[t]he test is rigorous because the Second Amendment is the very product of an interest balancing” by the People. But that makes no sense as a rationale for making the implementing test demanding. The “because” in the court’s sentence conflates two separate issues: (1) how rigorous the test should be, and (2) whether the “balance” should be struck by history. An affirmative answer to the latter does not imply any particular answer to the former. The balance struck in the Amendment could favor broad or narrow protection for the right (or broad or narrow as applied to different issues); saying history settles the Amendment’s scope doesn’t tell us how wide that scope is. After all, that’s usually the question in a case like Hardaway. In other words, even if you believe that the balance was struck at the founding, nothing about that fact says anything about how rigorous the test should be to smoke out violations. The test is (or should be) calibrated to find violations, whether the balance struck in the Amendment favors broad or narrow protection for the right. If anything, the court’s conflation of these two issues shows that support for a historical approach to the Second Amendment isn’t really about originalism so much as it is about expanding gun rights.

In applying the test, the court first breezily cruised past the step one “plain text” inquiry. Instead of an analysis, the court simply stated that, just as for the plaintiffs in Bruen, the Second Amendment “presumptively guarantees Plaintiffs’ right to ‘bear’ arms in public for self-defense—and it does so as well at places of worship, which are open to all comers.” It’s not clear why the plain text covers bearing in that particular location—which after all is the precise question in this case. And, on this reading, the plain text inquiry is basically superfluous when a person claims a right to carry their gun anywhere. It’s also not clear what the “all comers” descriptor is doing. Might the court reach a different step one conclusion as to places that are not generally open to the public (like, I suspect, is true for at least some (many?) places of worship)?

In moving to the historical second step, the court noted that New York identified church-ban laws enacted in the two decades following ratification of the 14th Amendment “by four states (Texas, Georgia, Missouri, and Virginia) and the territories of Arizona and Oklahoma.” Those were not enough. Unlike the sensitive locations Bruen highlighted, said the court, “places of worship or religious observation are unsecured, spiritual places that members of the public  frequent as often as daily as part of day-to-day life, and encounter vast numbers of other people there—as they do anywhere in public.” Seeming to echo a theme that Joseph Blocher and Reva Siegel are developing about at least one of the purposes of the sensitive-places doctrine, the court said the Bruen-identified locations were spaces in which armed violence “could disrupt key functions of democracy.” Not so for churches.

Then, in assessing New York’s proffered analogues, the court highlighted a phrase from Bruen about “an enduring American tradition of state regulation” and said that since seven similar (modern) laws imposing may-issue licensing were insufficient in Bruen, then seven laws must also be insufficient to justify New York’s church ban. (The court did not discuss—or acknowledge—the notion that the number of contemporary jurisdictions with such a law is not the same as searching for a historical tradition.) The court did not quote any of the laws New York cited, but said there were “a handful” and that there were also “[a] few additional municipal enactments of similar vintage,” but the latter did not alter its conclusion. As to the state’s examples:

The notion of a “tradition” is the opposite of one-offs, outliers, or novel enactments. Rather, “tradition” requires “continuity.” These enactments [New York cited] are of unknown duration, and the State has not met is burden to show endurance over time.

(Footnotes and citations omitted; emphasis in original). The court also invoked the evolution of some of the historical laws to suggest that the tradition relaxed its treatment of guns in churches over time: “As to Georgia and Missouri, the enactments apparently evolved in any event, to allow church leaders to decide the issue for their own churches.” That seemed reason to discount them—or possibly to deny them any weight at all.

In sum, the court concluded, it was left with “a handful of seemingly spasmodic enactments” that were “very much outliers—insufficient, then, in the search for an American tradition.” Unlike the court in Antonyuk, the court here did not allow the ban to remain in effect generally, with only a special carve-out for peace-keeping, but instead found it unconstitutional in toto.

The court also found that the plaintiffs had established they would suffer irreparable harm in the absence of an injunction. Churches are sites of protected First Amendment activity. Plus, according to the court, churches can be dangerous places:

Law-abiding citizens are forced to forgo their Second Amendment rights to exercise their First Amendment rights to free exercise of religion, or vice versa. And they are forced to give up their rights to armed self-defense outside the home, being left to the mercy of opportunistic, lawless individuals who might prey on them and have no concern about the place of worship exclusion.

In other words, criminals don’t follow the law. (Besides being a reductive gun-rights talking point, it’s also not the case that all those bent on doing harm flout gun laws—see, e.g., the many January 6th insurrectionists who left their guns at home, or at a staging area in Virginia, rather than take them into D.C. precisely because of the District’s strict gun laws.)

Like other recent decisions, the court’s opinion here reduces hard questions about the scope of the Second Amendment and Bruen’s methodology to simple ones that generate easy answers with minimal analysis. The court invoked themes concerning the endurance, enforcement, and evolution of historical gun laws, labelling those it chose to ignore as outliers, anachronistic, remote, or irrelevant with almost no analysis at all. How long do laws have to “endure” to count? When does a change in regulatory framework mark an “evolution” of tradition as opposed to merely a different judgment by a different set of legislators? Why don’t local laws count? And why does the state have to put forward more than seven historical analogues to show a tradition?

This last question is all the more urgent—and the lack of an answer all the more concerning—because other courts have already reached inconsistent conclusions: the Antonyuk court said it required three laws for a tradition and expressly rejected the statements by a Texas court in McGraw v. FPC that the existence of laws in nearly half the states was insufficient. Now Hardaway comes in between the two, leaving state governments with no idea whether three, seven, or many more laws are needed to justify a modern regulation. Not only are the answers missing, but so too is any principled explanation for how to arrive at one. Bruen, in short, continues to license unbounded judicial discretion that permits federal courts to implement their policy preferences in the guise of historical fact-finding.

There are several extremely worrying trends from what I’ve seen in the still nascent post-Bruen Second Amendment case law. These concerns don’t arise from disagreement with constitutional originalism or with the Supreme Court’s interpretation of the Second Amendment. They are concerns about lower courts’ capacity (and perhaps willingness) to apply a historical method in a way that appropriately sets the boundaries around the state’s role in securing public safety given the individual’s right to keep and bear arms. Whatever one’s views of the ultimate issue in these cases, the lower courts’ muddied attempts to implement Bruen should be concerning.

Bruen ushered in a test that requires courts to undertake a two-step inquiry when assessing challenges to gun laws. At step one, courts determine whether the “plain text” of the Second Amendment covers the challenged action. If the text does cover the action, the government then bears the burden of showing that the challenged regulation is consistent with the nation’s historical tradition of regulating firearms. In just the three months since the Court decided Bruen, lower courts are already showing the limits of a strictly historical test—at both stages of the Bruen inquiry.

1. Step One Problems.

Recall that step one requires courts to ascertain whether what the challenger wants to do falls within the “plain text” of the Constitution. One could certainly take issue with that as the standard, ripe as it is with ambiguity and lack of guidance over what constitutes “plainness.” But even taking it at face value, lower courts are botching the inquiry.

• Protected “Arms.”

In a case decided on September 23, Rigby v. Jennings, a federal judge in Delaware struck down provisions of Delaware’s new “ghost gun” law that prohibited distribution, possession, and manufacturing of unserialized firearms. Whatever one thinks of the outcome, the court’s reasoning is quite weak. In fact, it doesn’t even correctly apply what has long been—and Bruen seems to confirm as—the test for deciphering whether a weapon constitutes a protected “arm” at all: whether the weapon is in common use by law-abiding citizens for lawful purposes. Instead of requiring the plaintiffs to offer evidence that ghost guns are commonly used for lawful purposes, the court said the state “ha[d] offered no evidence to support the assertion [that such guns were not in common use].” It even expressly rejected the notion that the plaintiff bears the burden to show the weapons are part of the “plain text,” writing that “[i]t is, however, Defendant’s burden to prove that the challenged regulation does not implicate the Second Amendment.” But it simply cannot be the case that every weapon is presumptively covered unless the government proves it is not in common use. At the very least, it seems like the statistics offered by Delaware showing that ghost guns are frequently recovered from crime scenes would shift the burden back to the plaintiff to rebut that showing (for example, by offering some evidence of lawful use). The plain text Bruen step is a threshold inquiry and Bruen talks about the burden falling on the government at the second step, which only makes sense if the plaintiff bears the burden at step one.

• Protected “People.”

In United States v. Quiroz, decided on September 19, the Western District of Texas struck down the federal law barring those under indictment for a felony offense from receiving (but not possessing) firearms during the pendency of the charges. At Bruen step one, the court misread the decision. The court read Bruen to allow only an inquiry into whether “the conduct” fell within the scope of the Second Amendment’s plain text and said that, for example, bans on felon firearm possession would clearly be within the Second Amendment’s plain text because they bar “possession,” i.e, “keep[ing]” arms and the person’s status is adjudicated only at the step two. That’s a mistaken reading of the opinion. Bruen frames the inquiry at step one in terms of “conduct” only because the case concerned conduct—public carry—not a question about what weapons are protected (“Arms”) or what people are covered (“the People”). In fact, when applying the method it announced, Bruen showed that these other inquiries are properly step-one “plain text” inquiries:

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.

(Citations omitted). The Court understood step one to require that the person, weapon, and conduct fell within the Second Amendment’s “plain text” before moving to step two. The Quiroz court failed to apprehend this important point by focusing too narrowly on the specific challenge in Bruen. That decision matters for a host of reasons, including that if certain people, weapons, or conduct are outside the scope of the Second Amendment at step one, the government doesn’t then bear the burden of presenting a historical tradition to support its regulation (which may be all the harder if the original ratifying public understood something to be outside the scope altogether and so didn’t debate it as thoroughly as modern legislatures might).

• Sensitive Places.

In Heller, the Court declared that governments may prohibit guns in certain “sensitive places” like schools and government buildings. Bruen reaffirmed the sensitive places carveout, and in fact used sensitive places as a prime example of how to conduct the analogical reasoning it now demands. But on August 31, 2022, a judge in the Northern District of New York, in Antonyuk v. Bruen, declared nearly the whole set of New York’s post-Bruen sensitive place designations unconstitutional with barely any analogical reasoning at all. What’s worse, the court stated that “the Supreme Court in [Bruen] effectively barred the expansion of sensitive locations beyond schools, government buildings, legislative assemblies, polling places, and courthouses.” Such a statement directly contradicts Bruen’s own language describing analogical reasoning and sensitive places. There, after listing several sensitive locations, the Court wrote that lower “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” The emphasis in the original Bruen opinion on “new” makes the Antonyuk court’s reasoning all the more perplexing.

2. Step Two problems.

Bruen’s second step requires the government to prove that a regulation implicating people, conduct, or arms falling within the “plain text” of the Second Amendment is consistent with the American historical tradition of firearms regulation. Bruen didn’t offer any guidance for how widespread—geographically or temporally—such a tradition must be, and lower court treatment to date does not provide confidence that district judges can figure out this question in a way likely to lead to predictability, consistency, or judicial restraint. Two cases—reaching opposite conclusions on the constitutionality of a challenged law—illustrate the problem.

Consider first the August 25, 2022 decision in Firearms Policy Coalition v. McCraw, issued by the Western District of Texas. In that case, the judge struck down Texas’s prohibition on handgun carrying by those under 21 years old, holding that 18-20 year olds have a Second Amendment right to carry and that the state had not met its burden to show that such restrictions were part of the nation’s historical tradition. Even though this was a challenge to a state law, where the Fourteenth Amendment’s incorporation of the Second Amendment made that amendment binding on Texas, the court considered Founding-era tradition to be the relevant benchmark. (Bruen helped create this mess by explicitly not deciding whether 1791 or 1868 should be the relevant time period for challenges to state laws under the Second Amendment.) That choice is debatable, but then the District Court stated that, even if it looked to Reconstruction-era history, Texas still failed to carry its burden because “[a]t most, Texas’s historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on ‘the purchase or use of firearms’ for those younger than 21.” (Emphasis added.) But those restrictions, said the court, can’t support Texas’s prohibition. That’s quite a strange reading of history and use of analogical reasoning, and it seems to make the existence of regulations in nearly half the states insufficient to create a historical tradition!

Contrast FPC v. McCraw with National Association for Gun Rights v. City of San Jose, decided by the Northern District of California on August 3, 2022. There, the District Court upheld San Jose’s requirement that gun owners procure firearms liability insurance. In finding that the city had “presented a sufficiently ‘relevantly similar’ historical regulation” the court relied on surety laws—which could be used to require an armed person to post a peace bond upon a complaint or suspicion that they would breach the peace—as a relevant analogue. It granted the plaintiffs’ point that one distinction between the insurance mandate and surety laws was that the latter operated after-the-fact based on individualized suspicion of potential gun misuse. But the court held such a distinction immaterial for the purposes of establishing an analogue. The court did not mention or explore how widespread surety laws were, how often they were applied or enforced, or how long such laws stayed in effect. Bruen itself focused on these aspects of surety laws, so the absence of such investigation in this decision is strange. Although the bottom line conclusion is again debatable (in my opinion), the vastly different ways that a federal court in California and a federal court in Texas looked for historical analogues indicates that Bruen isn’t delivering on its promise of consistency, reliability, and a check on judicial imposition of policy preferences.

In a recent case pending before the Ohio Supreme Court, State v. Philpotts, a majority of the justices sua sponte ordered the parties to file supplemental briefs addressing Bruen’s effect on the case. The challenged Ohio law in that case bars those under indictment for violent felonies from possessing firearms pending the disposition of the indictment. The lower courts upheld the statute under intermediate scrutiny pre-Bruen. Bruen was about public carry, not categorical prohibitions on gun possession, but its transformation of the methodology for Second Amendment challenges may mean that even some prohibited possessor laws will be reexamined. The court’s supplemental briefing order isn’t all that noteworthy on its own—judges have ordered supplemental briefing in many cases that were either pending when Bruen was decided or remanded post-Bruen. What is noteworthy is the opinion dissenting from that order.

Justice Jennifer Brunner’s dissent raised a number of issues with both the court’s order and how to conduct the test Bruen articulated. I don’t think the whole dissent is necessarily persuasive or compelling, but her concerns do raise fundamental questions about how to implement Bruen. First, she questioned the propriety of the court’s supplemental briefing order given the nature of the Bruen test. That test, she argued, turns on factual questions about “the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws” that “should be developed in and determined by a trial court, not an appellate court.” Because history requires finding facts and drawing inferences from facts, she concluded: “Fundamentally, no appellate court should be the fact-finder in determining the tradition of gun regulations during different eras of our nation’s history, including how and why guns may have been regulated.” These observations seem right, but I’m not aware of courts that have treated an originalist-driven historical inquiry as a factual one—i.e., a finding that must generally be made by a jury and is subject to deference on appeal. Then again, the Supreme Court rendered the Second Amendment sui generis in constitutional adjudication, so litigants may raise this issue in the future.

Second, Justice Brunner registered her “concerns about how ‘history’ or historiology can become part of a legal analysis, as this court embarks on the legal equivalent of asking whether a modern translation of the Bible accurately conveys the teachings of the original texts.” I’m not sure the specific analogy she uses makes much sense, but she does intervene in a debate that’s recently come to the fore as originalism becomes the reigning ideology at the U.S. Supreme Court. Jack Balkin’s article, Lawyers and Historians Argue about the Constitution, explores some of these tensions. They have also been debated between legal scholars defending originalism (e.g., Randy Barnett, here, and Will Baude & Steve Sachs, here) and historians critical of originalists’ uses of history (e.g., Jonathan Gienapp, see here and here for example). The lawyers often concede that they aren’t doing history the way historians might, but are instead looking to history for a different purpose and with different goals. In doing so they rely, as Baude & Sachs put it, and Justice Thomas quoted with approval in Bruen, on “various evidentiary principles and default rules,” like burdens of proof and party presentation. In her dissent, Justice Brunner noted that professional historians describe revising historical interpretations over time as new evidence becomes available as part of their core mission, and that a historian’s work inevitably involves interpreting—and not merely collecting—data.

Finally, in an attack that could apply beyond the question of Bruen, she challenged what’s missing in our historical traditions:

Importantly, the glaring flaw in any analysis of the United States’ historical tradition of firearm regulation in relation to Ohio’s gun laws is that no such analysis could account for what the United States’ historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations.  How would this problem be addressed in any modern analysis of historical gun regulations?  It cannot simply be ignored.  And even if a court tries to take the views of women and nonwhite people into account, are there sufficient materials on their views available to enable reliable conclusions to be made?

Justice Brunner was seemingly unable to convince any colleagues to join her dissent. It’s not clear how persuasive her points will be to the court’s ultimate resolution of Philpotts (the Ohio Supreme Court consists of 4 Republican justices and 3 Democratic ones). But whether they play a role in this case or not, her questions about the use of history in Second Amendment cases will continue to recur as lower courts work to implement Bruen.

Last week, in Firearms Policy Coalition v. McCraw, Judge Mark Pittman of the U.S. District Court for the Northern District of Texas struck down a Texas law that prohibited those under 21 from carrying handguns in public. The case illustrates many of the hallmarks that are likely to characterize post-Bruen litigation over contemporary gun laws. And it reinforces, for me at least, the problems that Bruen’s history-only test imposes on judges and policymakers alike.

After determining that the plaintiff organization and individual plaintiffs had standing, the court turned to Bruen. Like I and others have pointed out, including on this blog, Bruen doesn’t really discard the two-part framework that had been used across the federal appellate courts. Instead, it just refashions that test into a new two-part framework. Under Bruen Step One, as Judge Pittman noted, the court first must determine whether or not the challenged conduct is protected by the Second Amendment’s text. If the answer is yes, then the burden shifts to the government at Bruen Step Two to justify its regulation by sufficiently analogous historical laws.

At the first step, the court concluded that the Second Amendment covers the public carry of handguns by 18-20 year-olds and that the conduct is therefore presumptively protected. (While the plaintiffs framed the lawsuit as a facial challenge only as to the 18-20 age group, the challenged law applies to everyone under 21 and it’s not clear why the court’s reasoning would not also encompass 14-, 15-, or 16-year-olds.) The court observed that the constitutional text doesn’t contain any age limits (unlike the Constitution’s express age qualifications for office), and that other constitutional rights referring to “the people” are not restricted by age. This, to me, is a remarkably curious argument. What it seems to logically entail is that a law barring toddlers from carrying handguns in public presumptively covers conduct protected by the Second Amendment? And then the *only way* the court could uphold the toddler-carry ban would be to require the government to find historical analogues (analogues I suspect are lacking, at that level of specificity). Bruen wouldn’t allow the government to justify such a ban based on obvious safety rationales. What a strange, strange way to do constitutional law. Of course, the court did invoke Heller’s language about the right extending to those who are members of the “political community,” but similar rights of “the people” in the other amendments it cites do not apply only to those who are 18 or older.

At the second step, the court rejected Texas’s defense of the law as grounded in either (a) binding Fifth Circuit precedent, or (b) a rich historical tradition. Several pre-Bruen Fifth Circuit cases upheld age-based restrictions, including a 2013 decision that upheld the specific Texas law at issue. Another, the 2012 case NRA v. ATF, conducted an in-depth historical analysis but ultimately decided the case under step two of the pre-Bruen framework. And the analysis at step one, Judge Pittman said, wasn’t persuasive enough to follow. The court also found historical laws (canvassed in the NRA opinion) to be insufficiently analogous. Those laws arose around Reconstruction, and the court noted that Bruen left open the question of whether 1791 or 1868 is the relevant benchmark for finding historical tradition. However, the court essentially rejected laws arising around 1868. Those laws directly related to the purchase or use of firearms by those under 21. But the court found them insufficient:

The earliest law cited is from 1856. Accordingly, NRA’s “thorough and compelling” historical analysis is void of any laws from the Founding Era. On this point, the historical record before the Court establishes (at most) that between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the ability of those under 21 to “purchase or use firearms.” And by 1923, three more states joined with similar laws. But the record stops short and does not show any “historical analogs” from the Founding Era. 

The court stated that the tradition had to go back to the Founding to justify a modern regulation. Yet, even if it did consider those laws, the court said, they still wouldn’t be enough.

At most, Texas’s historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on “the purchase or use of firearms” for those younger than 21. Based on Bruen’s guidance, however, the Court concludes these laws cannot sufficiently establish that a prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent with this Nation’s historical tradition of firearm regulation.

So almost half the states had laws regulating 18-20 year-olds less than 25 years after the Fourteenth Amendment was ratified. Not enough, said the court. It didn’t say what would have been enough or why these weren’t. The court provided no analysis for why this kind of widespread tradition wouldn’t satisfy the Bruen test, merely suggesting that these laws did not impose similar burdens because they did not prohibit public carry.

The case is problematic, not so much for its outcome (reasonable minds can differ, I think), but for its application of Bruen. I suspect this kind of bare-boned analysis and unreasoned discussion of historical tradition will be the norm—on both sides of the issue. After all, Bruen doesn’t give much else to work with.

Despite the Bruen majority’s insistence otherwise, the history-only test neither circumscribes judicial discretion nor provides clarity or predictability to the law. In many ways, Bruen magnifies discretion, offering judges the opportunity to choose from whichever historical sources they want, with little guidance or guardrails. And it certainly doesn’t make outcomes predictable or consistent. The problem with Bruen (or, at least, one big problem) is that it allows judges to make policy decisions under the guise of historical judgment. If a judge prefers stronger gun rights, then she can hold the government’s feet to the fire and reject what can at points seem like quite close historical analogues; if she is inclined in the other direction, then she can loosen that required fit (as, perhaps, was the case in the litigation over San Jose’s insurance requirement).

Some might levy a similar complaint against the pre-Bruen cases, but at least the prior framework required judges to put their cards on the table. The reason it’s pretty easy to critique the Second Circuit’s NYSRPA I decision, for example, is that the court held up the weak empirical evidence New York used to justify its law. Now, all we get is a bare conclusion that X or Y law is or is not “close enough” to the modern one. Bruen has impoverished legal analysis in Second Amendment cases and contributed to the further perception that judges deciding constitutional cases are doing so based merely on policy preferences.

Last week, in National Association for Gun Rights v. San Jose, a federal judge in California declined to preliminarily enjoin a San Jose ordinance that requires gun owners to obtain and maintain liability insurance and pay an annual fee. The case is significant not only for its discussion of the constitutionality of mandated gun insurance, but also because it includes a lengthy discussion on how to apply Bruen’s new test. (As Andrew has written about here, several courts so far have had to grapple with how Bruen applies to different situations at varying stages of litigation.)

In early 2022, the San Jose City Council enacted a new ordinance, one provision of which requires gun owners to obtain and maintain liability insurance for accidental firearm (mis)use. Another provision requires gun owners to pay an annual “gun harm reduction” fee that is channeled to an as-yet-unidentified nonprofit to be used on services for gun-owning households to help decrease the risk of harm from misuse of firearms. The ordinance provides for an administrative citation for any violation of its provisions. The National Association for Gun Rights challenged the ordinance the same day it was enacted. Although the challenge raises other claims as well, I’ll focus only on the Second Amendment ones.

Before the district court was scheduled to conduct a hearing on the motion for a preliminary injunction, the Supreme Court decided Bruen. That case, of course, jettisoned the two-part framework used by all courts of appeals to consider the question, including the Ninth Circuit. As I’ve written about, Bruen mandates that courts use a history-plus-analogy test that requires the government to justify its regulation with a goldilocks historical tradition—not too old, not too new, but just right enough to satisfy five members of the current Supreme Court.

The district court considered each operative provision of the ordinance in turn. As to the annual fee, the court agreed with the government’s argument that the Second Amendment claim was not ripe because the City had not yet set the fee amount, so the court could not determine whether there was more than a de minimis burden on Second Amendment rights. (Although it’s cursory, I read this part of the opinion as consistent with an understanding that Bruen allows—maybe even requires—a threshold determination about burden to ascertain whether the Second Amendment even comes into play. The court, however, declared later in the opinion that burden analysis comes at the second stage, not the threshold.) The court declined to rule on the merits of the claim. It did, however, suggest that Bruen found certain non-exorbitant fees permissible (there, fees for concealed carry permits).

As to the insurance requirement, the court addressed that claim on the merits. In doing so, it went through the factors for issuance of a preliminary injunction, which require the moving party to show (among other things) a likelihood of succeeding on the merits. To determine whether the plaintiffs were likely to succeed, the court laid out how it understood the Bruen standard. First, said the court, “[t]o determine whether the Second Amendment’s plain text covers an individual’s conduct, courts must [] identify and delineate the specific course of conduct at issue.” Second, “[i]f the conduct at issue is covered by the text of the Second Amendment, the burden then shifts to the government to show why the regulation is consistent with the Nation’s historical tradition of firearm regulation, specifically the periods closest to the adoption of the Second Amendment (1791) and the Fourteenth Amendment (1868).” It’s worth pausing here to note that, as I’ve numbered them, the Bruen test is really just a different two-part framework than the one the courts of appeals had been using; it still requires a determination of coverage and then a conclusion about protection. All that’s (really) changed is that the test for protection is now a history-only test instead of means-end scrutiny. In addition, the court’s language here about burden-shifting at the history stage suggests that it reads Bruen to put the burden on the claimant at the initial step.

At Bruen step one, the court expressed some lack of confidence about how to define the conduct at issue to determine whether it was protected by the Second Amendment’s text. Ultimately, it settled on defining the conduct as owning a gun without liability insurance. Applying what it called “the ‘plain text’ prong of the Bruen analysis,” the court concluded that such conduct likely satisfies the test and is within the amendment’s scope. It declined to assess “the degree to which Plaintiffs’ Second Amendment rights have been burdened” at this stage, calling that a second step question. (I think this is a plausible reading of Bruen, but I have a hard time seeing the value/coherence in a test that doesn’t look to see whether there’s a burden on the protected right at all, at a threshold level.)

Next, the burden shifts to the government on “the ‘historical tradition’ prong of the Bruen framework.” And here, the court concluded the government had carried its burden. Among the laws the City invoked, the court found several to be distinguishable and thus not analogous: dangerous animal laws, loyalty oaths, and gunpowder storage laws. On the latter, it noted that those laws shared a similar purpose as the insurance requirement but “the regulations themselves were often specific to gunpowder and not easily translatable to firearm regulations.” The City also invoked “19th century surety statutes,” laws which Bruen itself spent several pages addressing. The court ultimately said these surety laws were sufficiently analogous to support the insurance requirement. Although there were some differences, the court found those irrelevant to the Bruen analogy questions—burden and justification. Noting that Bruen does not require a “dead ringer” historical law, the court found “substantial overlap” as to the relevant Bruen factors and emphasized that surety laws were part of a longer “‘historical tradition’ of shifting the costs of firearm accidents from the victims to the owners of the implicated firearms.”

I suspect this isn’t the last we’ll see of this case. As one of the first cases to consider how Bruen impacts a claim right from the start, it’s a good example of how lower courts are likely to read the opinion. As a methodological matter, I think the court was right to separate the Bruen inquiry into two steps: (1) “the ‘plain text’ prong of the Bruen analysis,” followed by (2) “the ‘historical tradition’ prong of the Bruen framework.” Other federal judges have already divided the Bruen test in this manner, and it wouldn’t be surprising to see more courts do so. As a substantive matter, the court does seem to be more generous in its assessment of analogies than Bruen was. Surety laws no doubt bear similarities to the insurance mandate, but one can just as easily recite the differences. One chief complaint about Bruen, of course, is that it leaves courts very little guidance about how to do this inquiry. Even if gun-rights proponents (or gun-rights justices) disagree about this application, it’s hard not to put the lion’s share of the blame for that on Bruen itself. 

In a decision this past June, United States v. Taylor, the Supreme Court ruled that the mandatory minimum penalties in 18 U.S.C. § 924(c) could not be applied to a man convicted of an attempted federal robbery offense. The decision comes as one in a string of victories at the Supreme Court for gun-crime defendants facing steep penalties. In a number of decisions over the past several years, an otherwise very conservative Court has sided with criminal defendants facing mandatory minimum sentences for gun crimes in at least a half dozen decisions. I’ll start by describing Taylor and then explain how it fits into a broader pattern of a Court showing what I see as a recognition of the extraordinary punitiveness of the federal gun sentencing structure, a theme I’m exploring in a work in progress. (Brandon Garrett and I also recently published an article, The Trajectory of Federal Gun Crimes, which recounts some of this Court’s engagement with these firearm penalty statutes).

In Taylor, the defendant was convicted of attempted Hobbs Act robbery (basically a robbery with an interstate connection, here to drugs). Based on that conduct, he was also convicted of violating § 924(c), which provides for mandatory minimum punishment when a person uses/carries a firearm while committing a federal crime of violence. A “crime of violence” includes (among others that don’t apply here) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The central question, under current doctrine, was whether attempted Hobbs Act robbery has as an element the use, attempted use, or threatened use of force. To answer that question, the Court used what it has called a “categorical approach,” meaning that it looks to the elements of the underlying offense, not to how any particular defendant committed it in a given incident. And, using that method, the Court concluded that Taylor’s attempted robbery did not qualify because one could commit attempted Hobbs Act robbery without using, attempting to use, or threatening to use force—as, for example, if a person took substantial steps toward such a robbery, like planning a route, conspiring with others, gathering weapons and instruments to conduct the robbery, etc. without having communicated a threat to anyone by the time the attempted offense was complete.

The result is fairly straightforward under the categorical approach. The majority opinion by Justice Gorsuch garnered 6 other votes, with only Justices Thomas and Alito dissenting. (Justice Alito has dissented in almost all of the criminal defendant wins in gun crime cases over the past decade.) Justice Thomas would get rid of the categorical approach altogether and focus on the actual conduct at issue—which, in Taylor, resulted in someone being shot to death. Justice Alito read the statute differently than the majority.

Taylor is of a piece with recent Court decisions constricting the reach of some of federal law’s harshest mandatory sentences, including the Armed Career Criminal Act’s 15-year mandatory add-on for a person caught unlawfully possessing a firearm who has three prior convictions for violent felonies or serious drug crimes, and § 924(c)’s mandatory escalating penalties for carrying/using a gun in a federal crime of violence or drug tracking crime (starting at 5 years and increasing depending on whether the gun was brandished or discharged, and higher if it was a specified weapon thought to be more dangerous).

Start just seven years ago in 2015 and consider the criminal defendant wins since then. Given the composition of the Court, each was joined by at least one—and often several—conservative justices:

• 2015: Johnson v. United States (Scalia, J.), holding ACCA’s residual clause unconstitutionally vague.
• 2016: Mathis v. United States (Kagan, J.), narrowly construing what counts as a generic burglary offense for constituting an ACCA predicate.
• 2017: Dean v. United States (Roberts, J.), clarifying that, when considering the sentencing for the underlying crime, a sentencing judge could consider the steep penalties in § 924(c).
• 2019: Davis v. United States (Gorsuch, J.), holding that § 924(c)’s residual clause is unconstitutionally vague.
• 2021: Borden v. United States (Kagan, J.), holding that a criminal offense cannot qualify as an ACCA predicate violent felony if it only requires a mens rea of recklessness.
• 2022: Wooden v. United States (Kagan, J.), narrowly construing the requirement that ACCA predicate offenses must be completed on separate occasions.

To be sure, some gun crime defendants lost cases in these years, but I have to imagine that the win rate for criminal defendants facing mandatory minimum penalties for gun crimes under ACCA or § 924(c) is considerably higher than for most other criminal defendants in these years. And that doesn’t even include cases like Rehaif v. United States, where a criminal defendant not facing a mandatory minimum won a major victory—the Court declared that the government must prove that a prohibited person knew the status that made it unlawful for him to possess a firearm to sustain a conviction under 18 U.S.C. § 922(g). (Of course, other gun crime defendants not facing mandatory penalties that lost in the last decade include the several challenging bars on possession by those with certain domestic violence convictions – United States v. Castleman and Voisine v. United States.)

On June 23, 2022, the Supreme Court issued its first major Second Amendment decision in a dozen years. In New York State Rifle & Pistol Association v. Bruen, the Court declared New York’s restrictive may-issue licensing law unconstitutional. The 6-3 decision written by Justice Thomas supercharges the Second Amendment and upends a host of settled questions in the fecderal courts of appeals, including questions about what weapons the Second Amendment protects, who can constitutionally be prohibited from possessing firearms, and many others. Although the Court’s primary holding striking down New York’s requirement that a concealed carry applicant show “proper cause” is likely to have immediate impact on the half dozen other states with similar regimes, its holding mandating a history-only test for all future Second Amendment challenges will reverberate much more widely.

Of course, a mountain of scholarship will be devoted to unpacking Bruen’s implications for gun rights and regulation—as well as for constitutional law more broadly. (In fact, the Center will be hosting a symposium at NYU Law School just a few months from now.) What follows is an initial effort to map out some of the major issues raised by the case.

In his opinion for the Court, Justice Thomas first recounted New York’s history of regulating the carrying of handguns, with the modern proper cause licensing law in place since 1913. As implemented currently, the standard is—in the Court’s words—“demanding” in requiring a showing that an applicant have a particularized need to carry publicly that’s distinguishable from the general community. The Court highlighted that many states require permits for concealed carry, but that the majority of states provide that a licensing official “shall issue” a license to whomever satisfies certain mostly-objective criteria.

It underscored—as if to deem it an outlier—that New York is one of only seven states to require a good cause showing. But it’s important to pause here and note (as Justice Breyer picks up in dissent) that this distribution of licensing regimes is thoroughly modern. As late as the 1980s, the predominant licensing scheme was the New York kind that required a showing of good cause. In fact, sixteen states at that time still completely prohibited concealed carry. And, at the time of Heller in 2008, only two states had no permit requirement at all (Vermont and Alaska). Today, 25 states have eliminated the requirement. In other words, gun-rights proponents have been monumentally successful in the legislative arena at the state level. Bruen constitutionalizes those victories to some extent.

Justice Thomas then went on to reject the unanimous methodology of the federal courts of appeals in analyzing Second Amendment questions: the two-part framework under which courts first ask whether the challenged action reaches conduct protected by the Second Amendment (a largely historical inquiry) and then, if so, move on to some form of heightened scrutiny.

Bruen sets up something of a different two-part analysis in its place:

[W]e hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’

As an aside on this paragraph, I’m not sure what the Court is getting at by referencing the text’s “unqualified command.” The case it quotes—Konigsberg v. State Bar of California—rejected a First Amendment challenge to a state bar’s refusal to admit an applicant because he would not answer questions about his membership in communist organizations. The quote comes from a footnote to the sentence in which that Court rejected a view of the First Amendment as absolute in two senses: “not only in the undoubted sense that, where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.” The footnote says the literalist, absolutist position would make no sense given laws against libel, slander, and the like, and quotes Justice Holmes’s assertion that constitutional provisions “are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil” and that their significance should not be determined “simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” It notes that the same must be true of the Second Amendment’s “equally unqualified command.”

I’m puzzled by this reference. Suffice it to say that Justice Thomas does not seem keen on accepting the Konigsberg view of constitutional provisions as “living institutions” or the notion that a constitutional right can protect conduct and still be overcome by sufficient government interests. In fact, it’s worth noting that Konigsberg endorsed the very kind of (in its words) “weighing of the governmental interest involved” that the two-part framework employed and Bruen now says is completely off the table. See Konigsberg, 366 U.S. at 52 (“With respect to this same question of Communist Party membership, we regard the State’s interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented.” (Emphasis added.))

But back to the test Bruen announced. It seems to assume a first inquiry into whether the “plain text” covers some conduct. If the answer is yes, it appears to envision a second step to see whether the government has met its burden to introduce sufficient historical evidence to justify the law. (Under the conventional two-step framework, the government bore the burden at step one to show a law burdened unprotected conduct. It is entirely unclear—to me at least—who bears the burden in Bruen’s first step of showing that the purportedly protected conduct is within the “plain text.” Governmental action is typically entitled to a presumption of constitutionality, after all.) Justice Thomas, however, said the existing two-part framework “is one step too many.” Only history is relevant.

The opinion grounded that test in the words and method of Heller. This is just what Justice Kavanaugh did when he first announced this sort of test as a circuit judge; he didn’t justify resort to text, history, and tradition as arising from first principles or based on anything unique to the Second Amendment, but instead as Heller’s mandate. And Heller, said Justice Thomas, doesn’t support means-end scrutiny. For a court to uphold a law against Second Amendment challenge, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”[1]

The majority then tried to support its new standard by drawing comparisons to other areas of constitutional doctrine, stating that “[t]his Second Amendment standard accords with how we protect other constitutional rights.” It described how (part of) First Amendment analysis looks to history for categorical exceptions. (The opinion omitted entirely the fact that the First Amendment quite obviously employs means-end scrutiny in a whole host of contexts.) Although history can be hard, the Court acknowledged, “reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable” than having judges perform means-end scrutiny. One wonders if the justices in the majority think what they were doing was not “legitimate” when five of them applied means-end scrutiny to—for example—hold certain California COVID-19 measures unconstitutional under the First Amendment.

What’s more, the Court dismissed concerns from the dissent about the ability of judges to perform the history that the decision now requires.

The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That “legal inquiry is a refined subset” of a broader “historical inquiry,” and it relies on “various evidentiary principles and default rules” to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example, “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (slip op., at 3). Courts are thus entitled to decide a case based on the historical record compiled by the parties.

In other words, it seems to me that courts are now “entitled” to strike down democratically enacted legislation if whatever responsible government officials defending a given law neglect to insert relevant historical evidence into the record, even if that history would have supported the law. Plus, it appears to leave open the possibility that the Second Amendment right will be constantly changing as new historical evidence gets unearthed—which we’ve seen happen even in the years since Heller was decided, with developments in corpus linguistics that cast doubt on historical assertions in that case. Or just the opposite, and equally problematic situation, could be true: constitutional law could calcify a version of history, making the Supreme Court’s pronouncements about history binding for all time.

Justice Thomas suggested that historical analysis would sometimes be easy, listing three suchcircumstances: (1) “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment,” (2) “[l]ikewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional,” and (3) “if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.”

Indeed, said Thomas, this very case itself was pretty easy. “[T]he historical analogies here and in Heller are relatively simple to draw.” Yet, he said, “other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” (Emphasis added.) That more nuanced approach—apparently reserved only for hard cases—requires judges to engage in analogical reasoning, finding a metric to assess relevant similarities. “While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” the Court said, “we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”

So courts ought to look to the burden the challenged law imposes, and check to see if a similar burden was imposed in the past; and then courts ought to look to the reasons the modern law was adopted and see if a historically law was similarly motivated. That means, as the Court said, that “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry.” The opinion hastened to add that courts may not engage in backdoor means-end scrutiny when doing this analogical reasoning (though assessing the burden and justification of a law were commonplace aspects of the two-part framework). The test, said the Court, shouldn’t be too narrow or too wide. The analogical reasoning approach is “neither a regulatory straightjacket nor a regulatory blank check.” As to the fear of a straightjacket, the Court sought to assure:

[A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

That reassurance is likely to be cold comfort to supporters of stricter gun regulation given how the majority applied its methodology to New York’s regime. (More on that below). To give an example of the leeway the approach envisions, the opinion invoked the sensitive places doctrine. Its reasoning is less than clear to me. After citing Heller’s description of schools and government buildings as sensitive locations where guns can be prohibited, the Court said:

Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.

(Citations omitted). This passage is curious. Start with the suggestion that “no disputes” about the constitutionality of a given law means the Court can “assume it settled” that the law is consistent with the Second Amendment. Why, one might ask, wasn’t the fact that New York’s concealed carry licensing went unchallenged for over century mean it was “settled” that such a regulation was constitutional? It’s strange to see the opinion so cavalier with the lack of widespread place-based restrictions.

I suspect at least some members of the majority were intent on retaining the sensitive places doctrine, but it seems badly undertheorized here. Consider the second half of the passage—how do courts assess whether gun prohibitions in other places are okay? No answer but the admonition to “use analogies.” On the majority’s own description of how to use analogies (the how and why questions), almost every sensitive places question is radically indeterminate: any place-based prohibition, modern or ancient, burdens the right to armed self-defense in nearly identical ways and all, or nearly all, are justified on the same grounds (i.e., reducing opportunities for armed violence in this space). A wave of litigation is going to confront the courts with questions about what, for example, makes a restriction on guns in schools and government buildings different than in museums or on public transit. One marker the Court did lay down is that sensitive places cannot be “all places of public congregation that are not isolated from law enforcement.” But between prohibitions in polling places and courthouses—which are permissible—and citywide prohibitions—which are not—lies a vast (literal) terrain of potential gun regulations. 

After spending pages laying out what seems a squishy standard, the Court then applied it to New York’s law. At what I’m calling Bruen step one, the Court asked first “whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.” It is worth noting—though the Court doesn’t spend much time on the question—that the “plain text” step is arguably quicker in Bruen than it might be in other contexts. Many argue, after all, that the plain text of “bear” means public carry, which, under the Bruen approach, shifts the burden to the government to provide historical evidence. It is more difficult to argue, for example, that the plain text of “Arms” covers high-capacity magazines, or that the plain text of “the People” does not cover undocumented immigrants.

In any event, the Court spent little time concluding that the “definition of ‘bear’ naturally encompasses public carry,” noting that “[m]any Americans hazard greater danger outside the home than in it.” Because the Second Amendment’s core right is the ability to keep and bear arms for self-defense, and individuals often find themselves in confrontations outside the home where they may need to defend themselves, the Court held it would be inappropriate and nonsensical to confine the right to “bear” arms to the home. That holding officially extends Heller and McDonald outside the home to protect public carriage of firearms.

After concluding that the plain text covers the conduct here, the Court then turned to (again, my words) Bruen step two: to justify that it can condition carry permits on a showing of need, “the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.” The Court then catalogued the types of evidence the state asserted on its behalf, including traditions from “(1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries.” At this point, the Court noted that not all history is equal. Legal regulations that are too old are not probative; nor are those that are too recent. On the latter score, the Court drew a hard line in the sand: the twentieth century is too late. (This line needed to be drawn to reach the Court’s outcome since Massachusetts had a similar regime starting in 1906 and New York’s own law stretched to 1913. But it also means that when firearm regulation picked up in response to firearm violence, tradition becomes irrelevant.) The Court makes government search for a goldilocks history that will satisfy judges that a given regulation is sufficiently grounded in history.

As Justice Barrett noted in her concurrence, one historical matter the Court left undecided is whether lower courts should look to laws around 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment was ratified) to assess the original public meaning of the right. It said that that didn’t matter for this case because the history at both periods was similar enough on the question of public carry. And that evidence did not, said the Court, support limiting the right to carry to those who could show special need. The Court did, however, say in a footnote that it was not calling all licensing into question (though, query how this is consistent with ignoring 20th century developments) and that shall-issue licensing laws were probably okay save for any situations where, for example, “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”

The Court then marched through the historical record presented to support New York’s law, dismissing and distinguishing what are at times quite strict restrictions. English history, for example, is “ambiguous at best” and the Court “see[s] little reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement.” Of course, the Court acknowledged that “[w]hen handguns were introduced in England during the Tudor and early Stuart eras, they did prompt royal efforts at suppression.” But the Court said that this tradition faded by the time of the founding.

Then, as to evidence of early colonial practice, the Court cited three colonial restrictions the state invoked, but cautioned that “we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.” It then went on to distinguish those regulations. Then, curiously, it said: “Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support restrictions on the public carry of handguns today.” Apparently even on-point historical traditions have a shelf life that modern circumstances can render irrelevant. The rationale is worth quoting in full because it seems to me to turn historical inquiry on its head:

Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today. They are, in fact, “the quintessential self-defense weapon.” Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

(Citation omitted). So contemporary usage nullifies past practices. It’s really unclear how this is consistent with the analogical methodology the opinion earlier recited: the how and why seem to line up between these old regulations and New York’s regime—they comparably burden public carry and were comparably justified. Then, too, the Court rejected another similar law, writing that “we cannot put meaningful weight on this solitary statute.” (There’s a theme of treating laws in isolation and then remarking that the Court cannot rely on isolated laws to justify New York’s.)

Turning to post-enactment of the Second Amendment laws, the Court acknowledged that “[o]nly after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate.” But none of those laws—common law offenses, carry bans, or surety statutes—supported New York. The Court read the laws and state court decisions upholding bans on concealed carry to mean that states could ban open or concealed but had to permit one. (In fact, the reasoning of several of those cases suggests that open carry might be constitutionally protected but that concealed carry was not. Heller itself explicitly recognized the latter point in a line that, interestingly, Justice Kavanaugh’s concurring opinion—which otherwise reproduces Heller’s language on exceptions—omits.) The Court also rejected a full carry ban for handguns in the New Mexico Territory from 1860, writing that “[t]his extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court.”

Later, in rejecting surety statutes as insufficiently analogous, the Court acknowledged that “[i]t is true that two of the antebellum surety laws were unusually broad in that they did not expressly require a citizen complaint to trigger the posting of a surety.” But, said the Court, the burden was slight: “we have little reason to think that the hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in the 19th century.” The Court also dismissed criticism from the dissent that “the absence of recorded cases involving surety laws may simply ‘show that these laws were normally followed.’” Sure, the Court said, that might be the case, but “the burden rests with the government to establish the relevant tradition of regulation,” and along with the other ways the Court saw to distinguish surety laws, “we consider the barren record of enforcement to be simply one additional reason to discount their relevance.” Note the contrast between this description of absence-of-records and how the Court assured that sensitive place laws were okay precisely because there was no record of dispute about them. I think that ought to give some hesitation about accepting the Court’s reassurances at face value.

The Court summarized its view of antebellum regulation as supporting the government’s authority over the manner of carrying—noting, for example, that “[u]nder the common law, individuals could not carry deadly weapons in a manner likely to terrorize others” and that surety laws “provide[d] financial incentives for responsible arms carrying.” But that did not extend to restricting the right to carry to those who could show good cause.

When the Court turned to evidence surrounding the Fourteenth Amendment’s ratification in 1868, it again underscored the limited nature of its historical analysis: “we are not obliged to sift the historical materials for evidence to sustain New York’s statute,” because the state bears the burden. But it nonetheless surveyed some evidence it found. It started with Dred Scott—not to condemn the decision, but to use it to bolster the case for a broad right to publicly carry. Justtice Thomas writes that Justice Taney even subscribed to his view because Taney’s “parade of horribles” of recognizing the citizenship of Black Americans included allowing them “to keep and carry arms wherever they went.” (Emphasis by Thomas.) It’s very strange to see Dred Scott—the paradigmatic anticanonical case—cited approvingly. One might wonder why, if its reasoning about the citizenship of Black Americans is so resoundingly rejected today, we should still think it got this other legal issue correct. But even besides that, the throwaway line in Dred Scott is quite clearly incorrect, since even Justice Thomas acknowledges that on any understanding of the public carry right, it did not grant a right to carry “wherever” someone wants—private property can obviously be off limits, as can the sensitive places that the opinion assured are grounded in historical precedent.

The Court then noted the efforts of many states to restrict arms-carrying by Black Americans, highlighting that the 39th Congress meant to counteract these restrictions. It dismissed as irrelevant, however, military orders during Reconstruction that forbid the carrying of deadly weapons.

The Court next homed in on a Texas law passed immediately after the Fourteenth Amendment’s ratification that the state and federal government relied heavily on in their briefing. That law forbid carrying handguns without “reasonable grounds for fearing an unlawful attack.” It was upheld twice by the Texas Supreme Court in the span of a few years. And that law, the Court “acknowledge[d]” did “support New York’s proper-cause requirement.” Yet that support was not sufficient because, the Court said, the law and the court decisions were “outliers.” “[W]e will not,” declared the Court, “give disproportionate weight to a single state statute and a pair of state-court decisions.”

Finally, the Court turned to territorial regulation from the late 1800s. That evidence is limited in value, the Court said, because of its distance from the Second Amendment’s ratification. (The Court denied that 20th century laws were relevant at all and refused to look at it, all without explaining how Heller could have blessed felon-in-possession laws that were only enacted in the 20th century.) On the territorial laws, it noted that two territories barred handgun carry in towns, cities, and villages, two others barred all firearm carry in those places, and one barred handgun carry everywhere. Again, the Court found this regulatory tradition distinguishable. Of territory-wide laws in five dispersed areas, the Court said, “the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.” The laws there were “exceptional” and that is apparently bolstered by the fact that the territories were sparsely populated in 1890.

Once again, the Court said, “we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also contradict the overwhelming weight of other, more contemporaneous historical evidence.” (Quotation marks and alterations omitted). Continuing on, the Court said the laws were rarely challenged so it could not judge “the basis of their perceived legality.” Note, again, what it means to find no evidence of challenges here versus in the context of sensitive places. And, said the Courts, courts that did uphold broader bans sometimes did so on grounds that Heller dismissed (i.e., militia oriented grounds). Thus, “[a]bsent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, we fail to see how they” can shed light on the meaning of that provision. Finally, the Court also distinguished the strict territorial laws because they were temporary.

In summary, the Court declared that its “long journey through the Anglo-American history of public carry” failed to support the state’s position. A few “outliers” here and a few “outliers” there were not enough to support New York. Justice Thomas concluded the opinion with a nod to the “second class” theme that he’s been raising repeatedly since Heller. The Court won’t, he said, apply a whole different set of rules to the Second Amendment by allowing officials to have discretion over its exercise. But, of course, the Court did in fact impose a whole different set of rules in requiring states to come up with historical analogues to justify regulation and eschewing the type of means-end scrutiny the justices routinely applies in First Amendment cases and other areas of constitutional law.

In another post, we’ll dive more deeply into the concurrences and dissent. For now, I want to highlight a few aspects of the opinion that stood out to me. One is that this opinion reads like a full-on Justice Thomas opinion that supercharges the Second Amendment right in the way he has been calling for in dissents from denials of cert for years. I’m a little surprised to see he got all five other Republican-appointed justices to sign on in full. That wasn’t as surprising for the result of invalidating the New York law, but was surprising to me for the approach of rejecting the two-part framework and fully adopting the history-only method.

Another thing that stood out is that the majority does not repeat the assurances from both Heller and McDonald that there are a set of laws that are presumptively constitutional, like laws prohibiting certain people from possessing guns or regulations on the commercial sale of arms. (A concurrence does, but the majority opinion—made a majority only by the two justices on that concurrence—doesn’t). That’s a glaring omission to me, and just reaffirms further that Justice Kennedy’s absence made all the difference here.

I was also struck by just how many times the opinion calls something that looks as strict or stricter than New York’s law an “outlier” or “exceptional” law. One might think that outlier status is the type of thing a legal tradition loses when there’s that many to distinguish away.

Finally, in this opinion, there’s nothing about government leeway to regulate guns differently in differently-situated geographic locations. No recognition that the needs of urban and rural places might be different, and a rejection of laws specifically allowing for greater regulation in populated areas. That is a bit surprising given that Justice Thomas at oral argument appeared to lean into the urban-rural divide, asking if New York could regulate differently in New York City and upstate.

I’ll end this very blog post by just registering some concern. The opinion’s requirement that courts only look to history in deciding Second Amendment cases is likely to have a monumental impact in lower courts and on various state laws. And the way the Court in this opinion assessed history, distinguishing away all potentially relevant analogues, I think should rightly worry those who fear that a historical test just masks value judgements and judicial discretion that is at least—for whatever else can be said of it—more transparent in the two-part framework. Bruen calls for historical method, but truncates it and chops it apart. On Bruen’s account, Heller can falsify history—making traditions, laws, and cases irrelevant to the analysis—but cannot itself be falsified. That’s an odd way to employ history.

[1] In holding that Heller already rejected means-end scrutiny, the Court dismissed Heller’s own insistence that the D.C. law would fail under “any of the standards of scrutiny” the Court applies to constitutional rights, its express rationale for declining to adopt Justice Breyer’s proposed proportionality analysis (because it did not match any of the levels of scrutiny the Court has applied to other rights), and its emphasis that it was not deciding a standard of review because there would be plenty more cases to resolve that question.

Last Thursday, the Court issued Bruen, declaring NY’s concealed carry law unconstitutional. We’ll have much more coverage on the blog, starting later this week. Now, we’ll wait to see whether any of the held cases are taken up or sent back to lower courts.

Petitions Pending

Petitions Disposed

Yesterday the Supreme Court issued its Bruen decision, holding that NY’s strict concealed carry law is unconstitutional and mandating that lower courts assess Second Amendment claims by reference only to history. We’ll be writing much more about it here, but today we have the Center’s annual firearms law works-in-progress workshop, so I’ll just post a link to my Twitter thread that captured my live reaction to the opinion and some aspects of the majority, concurrences, and dissent that I felt were especially noteworthy.

Thread: https://twitter.com/JacobDCharles/status/1539979462984564738?s=20&t=kmXVjesc4VN4VnTVSGWHsw 

It’s coming down to the last few weeks of the Term, and we’re expecting Bruen any day now. When the Court issues Bruen we will also get better insight into whether it plans to send the held cases back down or take one or more of them up.

Petitions Pending

Petitions Disposed

In its orders last week, the Court denied cert in the McCloskey’s Second Amendment challenge to their state bar discipline. There’s also one new cert petition based on a license revocation in D.C.

Petitions Pending

Petitions Disposed

We’re down to the last few weeks of SCOTUS opinions and awaiting Bruen any day. The Court has 4 cases it is holding pending Bruen as well, so we will likely see what happens to those soon as well—either the Court takes one or all of them up for plenary review or sends them all back down to the lower courts for reconsideration in light of Bruen.

Petitions Pending

Petitions Disposed

At its conference last week, the Supreme Court considered whether to hear Duncan, another challenge to a ban on magazines holding more than 10 rounds. The Court will release orders tomorrow from that conference, but I suspect the case will be held like the similar challenge in ANJRPC. And, since the Court didn’t act on Bianchi after it last considered the case at conference and hasn’t relisted it for another conference, it’s likely holding the case for Bruen. That makes two “what arms” cases on hold, including both a standalone high-capacity magazine challenge (ANJRPC) and a challenge to an assault weapons ban (Bianchi), in addition to another “where” case with Young. Adding Duncan to the list would make three “what” cases.

Petitions Pending

Petitions Disposed

Earlier this week, in United States v. Jimenez-Shilon, the Eleventh Circuit rejected a Second Amendment challenge to the federal law barring undocumented immigrants from possessing firearms. Dru Stevenson will be guest posting about the case on this blog. But I want to highlight a few aspects of Judge Newsom’s majority and separate concurring opinions—and compare and contrast it with another decision released the same day.

The question in Jimenez-Shilon was whether the Second Amendment protects undocumented immigrants. The majority said no. I’ve got qualms with some of the majority’s reasoning, but—as the court says—its conclusion upholding the federal bar on firearm possession for undocumented immigrants is in line with the unanimous opinion of the federal courts of appeals. (Immigration expert Deep Gulasekaram has a good paper criticizing this line of precedent.)

What’s more noteworthy to me about the case is Judge Newsom’s concurrence calling for adoption of the test of text, history, and tradition to evaluate Second Amendment challenges (though he’d lop off tradition), instead of the two-part framework that has thus far been adopted (again unanimously) by the federal courts of appeals. In Judge Newsom’s view, the second part of the standard framework, which calls for application of means-end scrutiny, is “problematic—not only because it elevates the normative views of ‘we the judges’ over ‘We the People’ through an ill-defined balancing test, but also because it stands in significant tension with Supreme Court precedent.” Asking conventional means-end scrutiny questions, he says, is “an amorphous inquiry” that “risks unelected and unaccountable judges upholding or invalidating gun-control laws at will—without respect to the original public meaning of the Second Amendment.” Judge Newsom goes on to say that courts ought to rethink scrutiny analysis in all constitutional cases. “If we, as judges, conclude—as I’ve said we should—that Second Amendment rights shouldn’t be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?”

Compare that suggestion, which calls into question an enormous range of constitutional doctrine, with another case decided the same day: Justice Thomas’s majority for the Supreme Court in Shinn v. Martinez Ramirez. The two decisions share remarkable similarities and equally remarkable differences. Both decisions foreclose rights claims by members of marginalized groups (prisoners in Shinn and undocumented immigrants in Jimenez-Shilon), groups for whom the political process is often not an adequate alternative to courts. Both majority decisions are written by conservative judges who are wedded to ideals of original public meaning and who claim fidelity to the Constitution’s protection for individual rights against government overreach. Yet both are deeply deferential to the government’s exercise of its most awesome power over individual liberty—imprisonment in Jimenez-Shilon, and the imposition of a death sentence in Shinn. (Shinn is a habeas case, and as federal courts scholar Leah Litman observes, “habeas corpus is known as the ‘Great Writ’ because it protects individual liberty and checks government power”—though she also complicates that picture. But it is noteworthy that the Court’s most libertarian justices often have the most restrictive views of habeas).

The cases also have some fundamental differences. Judge Newsom’s separate concurrence in Jimenez-Shilon contains a rousing encomium to fundamental constitutional rights, and to the judiciary’s role in protecting those rights at all costs, because (on his view) the founders already conducted any interest balancing when they codified the right in the Constitution in the first place.  No government interest can be so compelling or important to overcome the right assertion. To put it mildly, that’s not the view Justice Thomas, writing for the Shinn majority, takes about the constitutional right at issue there.

Shinn is a habeas corpus challenge that presents as a complicated case about procedural default rules, statutory provisions governing post-conviction relief, cause, prejudice and imputed errors, and issues of federalism and comity. But, at its core, the case is about whether the Sixth Amendment’s guarantee of competent attorneys for those accused of crimes will be enforced by federal courts—and about the concomitant constitutional right to the Great Writ of habeas corpus protected in the Constitution’s Suspension Clause. As habeas expert Lee Kovarsky notes, because of the nature of that type of constitutional claim, “we basically rely on post-conviction proceedings to judicially enforce the Sixth Amendment right to counsel.” Shinn guts that—and in many ways does so based on the costs that it would take to enforce such a right.

In his opinion, Justice Thomas writes at length about the interests on the other side of the rights-ledger, such as the need “[t]o respect our system of dual sovereignty.” He says that federal habeas review “intrudes on state sovereignty” to an almost unparalleled degree, imposing two special “costs” that the he emphasizes for the 6-3 majority: (1) “a federal order to retry or release a state prisoner overrides the State’s sovereign power to enforce ‘societal norms through criminal law’”; and (2) it delays final resolution and “undermines the States’ investment in their criminal trials.” He further underscores the significance of the state interests at stake: “the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike”; the “exhaustion and procedural default” rules that “promote federal-state comity,” including how the latter “protects against ‘the significant harm to the States that results from the failure of federal courts to respect’ state procedural rules.” According to Justice Thomas, federal court “intervention is also an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them.”

It’s hard to imagine the same kind of rhetoric being used to support, say, a state’s “powerful and legitimate interest” in preserving public safety with gun regulation. If anything, Shinn makes it seems as if the Sixth Amendment is the true “Rodney Dangerfield of the Bill of Rights,” not—as Judge Willett would have us believe—gun rights, which are amply protected by the political process and exponentially expanding in state legislatures the country over. Experts commenting on Shinn have remarked how it means that now “you have a Sixth Amendment right to effective assistance of counsel that is good for a glass of water at Denny’s. Because there’s no meaningful site to enforce it, it’s not worth shit.” The Court’s decision, proclaimed another expert, will “be disastrous for anyone relying on their constitutional right to effective counsel.”

These differences between Jimenez-Shilon and Shinn are stark, coming as they do on the same day by jurists who are ideologically and (otherwise) methodologically aligned. In his opinion, Judge Newsom expressly advocates for ignoring the costs of vindicating constitutional rights. Justice Thomas, on the other hand, expressly catalogues, and underscores, the costs that vindicating a constitutional right can have as reason not to vindicate it. It’s hard to avoid the impression that some conservative judges just like the Second Amendment better than any constitutional right that inures to the benefit of certain criminal defendants.

At conference last week, the Court considered the cert petition in Bianchi, challenging Maryland’s assault weapons ban. Today’s order list has no mention of the case, which signals the Court is likely holding the case pending the outcome in Bruen. This marks the second case in the category of “what arms are protected” (along with ANJRP) that the Court is holding for Bruen. And this Thursday the Court will consider at conference Duncan, which I expect the Court to also hold with ANJRPC since those two cases address the same issue.

Petitions Pending

Petitions Disposed

Last week, in Jones v. Bonta, a split panel of the Ninth Circuit ruled that California’s restriction on rifle purchases by 18- to 20-year olds violates the Second Amendment. The case is a major victory for gun-rights proponents, but that victory is likely to be short-lived. The en banc Ninth Circuit tends to reverse panels that vindicate Second Amendment claims. It’s likely this case will go en banc as well. But even though its formal legal effect may be temporary, the decision is analytically, doctrinally, and jurisprudentially significant in the way it assesses state law. Those moves may be influential to other judges reviewing Second Amendment challenges and even to the Supreme Court itself if this case eventually makes its way to the high court.

There are actually two laws at issue in the case. The first bars young adults—those between ages 18 and 21—from purchasing long guns (rifles, shotguns, etc.) without first obtaining a hunting license. That law exempts certain law enforcement and active and former military members. The second law at issue completely bars young adults from purchasing one kind of long gun—centerfire semiautomatic rifles. It does not have any exceptions for hunting license holders, although it exempts the same set of law enforcement and military members. Under these laws, young adults are not prohibited from possessing long guns, including centerfire semiautomatic rifles, nor barred from acquiring them in legal ways other than purchase, such as intrafamily transfers (like a gift from a parent). The state’s restriction on the subset of rifles was enacted in 2019 after the Poway synagogue shooting, perpetrated by a 19-year old with a semiautomatic rifle (only the dissent mentioned the impetus for the law). A law not challenged in the litigation, but that formed part of the panel’s discussion of the overall regime, bars young adults from purchasing handguns.

In the district court, the challengers lost on their claims against both the general long gun regulation and the narrower rifle restriction. That court concluded that the state won under the first step of the two-part framework: these laws did not burden conduct protected by the Second Amendment. As an alternative holding, the trial court applied intermediate scrutiny to each claim and held that the laws would pass.

On appeal, Judge Ryan Nelson, joined by Judge Kenneth Lee, affirmed the ruling as to the hunting license requirement, but reversed the ruling as to the semiautomatic rifle restriction. At the first stage of the two-part framework, the majority first acknowledged its limitation as “jurists not historians,” and even noted that corpus linguistics could be a useful part of the historical inquiry (it had called for briefing on the question in this case, but neither party urged the court to use corpus linguistics to help resolve the dispute). In determining at step one whether “the challenged law regulates conduct historically outside the scope of the Second Amendment,” the panel stated that “the Framers’ understanding of the Second Amendment at and around the time of ratification has special significance.” It added that, because the Fourteenth Amendment incorporated the Second Amendment, “our historical analysis also must consider how the right to keep and bear arms was understood in 1868, when that amendment was ratified.” The court did not provide any insight into which timeframe’s tradition to adopt if the historical evidence was different in these each period.

To assess the historical evidence, the court first stated that even though this was a regulation of commerce, the district court was correct in that its “historical analysis focused not on the history of commercial regulations specifically but on the history of young adults’ right to keep and bear arms generally.” The court then expressly held that “the right to keep and bear arms includes the right to purchase them.” “And thus,” says the court, “laws that burden the ability to purchase arms burden Second Amendment rights.” That last line is important. It seems to mean that, in most cases, commercial regulations of firearms will always get past step one of the two-part framework, notwithstanding Heller’s and McDonald’s assurances that those opinions did not call into question “laws imposing conditions and qualifications on the commercial sale of arms.”

With respect to historical evidence, the court laid out five data points that led it to conclude that this law burdens the right of young adults to keep and bear arms:

1. “the tradition of young adults keeping and bearing arms is deep-rooted in English law and custom,”
2. “the American colonists brought that tradition across the Atlantic: the colonial militias almost always included all men 18 and older, and other institutions involving keeping and bearing arms made it to our shores, too,”
3. “at the time of the founding, all states required young adults to serve in the militia, and all states required young adults to acquire and possess their own firearms,” and the federal government did the same just after the founding,
4. “both at the founding and later, different states had different ages of majority, and the age of majority also varied depending on the conduct at issue,” and
5. in “the Reconstruction era, some states passed laws that regulated minors’ access to firearms, but most of them only regulated handguns, and only a few banned all sales of firearms to minors.”

The court then went through each point to adduce support for the conclusions it reached.

A few observations I had reading that evidence: the court relied on militia statutes that sometimes mandated service and weapon possession by young adults (and what we would today call non-adult teenagers, like those 16 and 17 years old) to support that those individuals had a right to possess those weapons. At a few points, the court relied on a dissent by Judge Edith Jones in a Fifth Circuit decision upholding a different restriction on the rights of young adults, writing that “[m]uch of Judge Jones’s historical analysis remains unrefuted,” and that “dissents from denial from rehearing en banc, such as the one written by Judge Jones, can be persuasive judicial guideposts.” In discussing laws after Reconstruction that restricted age-based purchases, the court noted that “cases from this time did not address the constitutionality of laws that regulated firearm ownership by young adults.” It seemed to take that as a sign that the issue was unsettled rather than—what seems equally an plausible inference to me—that those laws were widely seen as constitutional.

The court concluded from its historical overview that “the Second Amendment protects young adults’ right to keep and bear arms.” As the court put it, “The Second Amendment refers to the militia, and young adults had to be in the militia and bring their own firearms. This reference implies at least that young adults needed to have their own firearms.” Another similar observation: it’s remarkable to me to glean from these facts any inference about a right against the legislature. All those facts show is legal permission—and in some cases statutory mandate—for young adults to have guns. Without more argument, they don’t support the conclusion that young adults held rights to possess (or purchase) those guns. The court doesn’t make that argument, but instead rejects any notion that the rights of these young adults are connected to the militia because Heller declared the right to keep and bear arms to be independent of militia service.

The court then rejected historical evidence from the Reconstruction era about restrictions on young adults. “On top of the deeply offensive nature of many of them,” the court said, “nineteen out of twenty-eight banned only the sale of handguns, and California’s handgun ban is not at issue.” Only five states had complete bans on the sale of all firearms to minors.

Finally, as to counterarguments, the court rejected California’s argument that its laws were the kind of “conditions and qualifications on the commercial sale of arms” or “longstanding prohibitions on the possession of firearms” by certain groups that Heller saved. For the semiautomatic rifle restriction, the court said that was a prohibition, but not on a group that Heller enumerated. And, although the hunting license regulation was a condition or qualification on the commercial sale of arms, that did not mean it survived at step one. “Some presumptively lawful measures might burden conduct unprotected by the Second Amendment, while others might presumptively pass the applicable level of scrutiny.” And in this case, it said, the conduct was protected, so “[t]he Supreme Court’s observation in Heller is no obstacle to this holding.”

In discussing the second step of the inquiry, the court laid down some guideposts:

The historical analysis controls the first step of the inquiry but not the second. In applying a tier of scrutiny in the second step, we focus not on the historical record (i.e., what kinds of regulations were present at the founding), but on the gravity of the state’s interest (compelling/significant/legitimate) and the degree of tailoring between the regulation and that interest (narrow tailoring/reasonable fit/rational relation). In finding no burden on Second Amendment rights, the district court improperly relied on founding era regulations.

In applying that second part of the two-part framework, the court held that the district court correctly applied intermediate scrutiny to the hunting license regulation, but should have applied strict scrutiny to the semiautomatic rifle restriction. As to the former, because the law simply required a person to obtain a hunting license to purchase a long gun (other than a centerfire semiautomatic rifle), it wasn’t a significant burden. As to the latter, because a hunting license was not sufficient, “it is a blanket ban for everyone except police officers and servicemembers.” The court argued that the circuit has never applied intermediate scrutiny to a law like this before:

To the contrary, our cases applying intermediate scrutiny have dealt with two kinds of laws. First, we have applied intermediate scrutiny to laws that govern conduct outside the core of the Second Amendment because the actors are not ‘law-abiding, responsible citizens’ under Heller. This rule does not apply here. And second, we have applied intermediate scrutiny to laws that regulate either the way people can obtain or use firearms, or auxiliary features of those firearms.

(Citations omitted). The court emphasized that the law here “bans almost all young adults from having semiautomatic rifles.” In fact, the panel did something the Ninth Circuit en banc eschewed in the Peruta case when it considered the “cumulative effect” of California’s unchallenged handgun restriction for young adults. Adding that to the centerfire rifle restriction at issue, “[t]hat leaves nonsemiautomatic centerfire rifles, rimfire rifles, and shotguns,” all of which the court said were subpar self-defense alternatives.

Even acknowledging that shotguns are effective weapons for self-defense in the home, shotguns are outmatched by semiautomatic rifles in some situations. Semiautomatic rifles are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage, and are typically easier for small young adults to use and handle.

(Footnote omitted). As legal scholar and expert on self-defense law Eric Ruben pointed out in a Twitter thread about the opinion, the court’s identified self-defense alternatives focus exclusively on what firearms could be used in self-defense, ignoring all nonfirearm “arms” and other means of self-defense, even though firearms are rarely used in self-defense situations.

Because this law impedes the easy availability of semiautomatic rifles, said the court, it imposes a severe burden. The ability of young adults to receive these rifles as gifts from family does not alleviate the burden because it “makes young adults’ Second Amendment rights conditional on the rights of others.” Nor do provisions allowing loans from other family members for temporary periods of time. And the fact that the restrictions lift when a person turns 21 has no bearing, the panel said, because even a temporary deprivation of a constitutional right is severe.

As should be clear from this analysis, the panel’s insistence that the restrictions on purchase (but not possession) constitutes a “ban” is almost the entire ballgame. As I’ve highlighted at least a few times on this blog, Joseph’s article, aptly called “Bans,” explains how and why courts make this characterization and what it triggers in constitutional adjudication. The Jones court is a good example: “this ban of semiautomatic rifles requires strict scrutiny, because handguns are already banned, and semiautomatic rifles are now effectively banned. That means two of the three types of effective self-defense firearms are banned, leaving young adults with limited or ineffective alternatives in many self-defense scenarios, and severely burdens their Second Amendment rights.” (Emphases added.) As the dissent points out, this law is much different from the ban addressed in Heller, where no one could possess a handgun in the home, for life, and characterizing this restriction as a ban leads right into the court’s conclusion that it violates the Second Amendment.

After declaring the appropriate level of scrutiny, the court’s applications were fairly straightforward. One argument that stood out to me, however, was the panel’s statement that—in thinking through what qualifies as a substantial/compelling government interest—public safety “is not a standalone government interest separate from the Second Amendment.” Remarkably, the court said that “[t]hough public safety is important, firearms were also dangerous in 1791, when the Second Amendment was ratified, and the government then also had an interest in promoting public safety.” It’s strange to suggest that firearms today pose the same level of threat to others as firearms did in 1791. As Darrell has written (and is writing more about), modern firearms are significantly more lethal.

I’m not sure what to make of the panel’s public safety argument, but if it suggests that public safety is not a legitimate government interest for enacting gun regulations, it’s both radical and radically ahistorical. But the panel is equivocal on that point, for it also says: “Thus, in the reasonable fit part of the analysis, the importance of the interest has no effect: once the interest is shown to be important, the question becomes whether the law is a reasonable fit. The importance of the interest cannot override Second Amendment rights.” It is hard for me to parse what these sentences mean. Nonetheless, the panel affirmed the district court’s conclusion that the hunting license regulation is a reasonable fit for the government’s interest and thus passes intermediate scrutiny.

But as to the semiautomatic rifle restriction, the panel faulted the district court for not using strict scrutiny and held, in the alternative, that the law would fail even under intermediate scrutiny. In this part of the analysis, the panel criticized the Ninth Circuit’s “cherry-picked formulation” of intermediate scrutiny that has “dispensed with the fit requirement.” It’s really a two-pronged formulation, said the panel: “This is the essence of the intermediate scrutiny test: the regulation must be a reasonable fit for the government’s stated objective, which means not just that it accomplishes something, but also that it does not burden far more speech than is necessary.” “When we omit the second part of the inquiry, we neglect to consider fit at all.” Quoting the Oxford Dictionary of English’s definition of “fit” the panel said: “a law is a good fit for a goal if it regulates only when it helps achieve that goal, and not in other instances. The more innocent conduct that is regulated, the less good a fit the law is. And conversely, sweeping in less innocent conduct makes for a better fit.” (I’ll admit it strikes me as a bit silly to use a dictionary not to help understand the terms of a constitutional provision or statutory text but to explain a word used in a doctrinal test created by the Supreme Court.)

On the question of the fit of the semiautomatic rifle restriction with California’s interests, the court analogized to Craig v. Boren, an equal protection case the Supreme Court decided under intermediate scrutiny (as did the majority in a now-vacated Fourth Circuit decision on a different firearm restriction for young adults). In Craig, the Court said the law was overbroad because it forbade all young adult males’ alcohol purchasing when only 2% of male young adults drove drunk. Bringing that statistical analysis over directly, the panel here said that only a small fraction of young adults misuse semiautomatic rifles (0.25% are arrested for violent crimes) and yet the law applies to all young adults. Yet, the panel cautioned, “[w]e establish no rigid statistical framework; we use a few numbers only to compare Craig v. Boren with this case, and to illustrate that the fit here is substantially more tenuous.” The court also acknowledged that the Second Amendment does not require individualized hearings, but it did say that “one way that states can improve regulations’ fit is by having exceptions or more individualized assessment.”

Judge Lee wrote a concurring opinion stating that the majority explained how “California’s law effectively banning the sale or transfer of semiautomatic firearms to young adults conflicts with the text, tradition, and history of the Second Amendment.” This is a curious way of putting it, since Judge Nelson didn’t even gesture in the way of the text, history, and tradition alternative test championed by many conservative judges, but applied the Ninth Circuit’s two-part framework to strike down the law. The history the majority outlined went only to part one of the framework, asking if the Second Amendment came into play, not the step two analysis. The main thrust of his concurrence, however, was to criticize a watered down version of intermediate scrutiny. “To accept the state’s argument would mean allowing the government to restrict individuals’ enumerated constitutional rights based solely on their group membership.” But, again, it’s curious to me to call “being an 18- to 20-year old” a “group” in any meaningful sense in which there’s membership. He added that “[y]oung adults have the same constitutional rights as the middle-aged or the elderly—even if some of them may not necessarily have the wisdom or judgment that age and experience can bring—for the same reason that we do not limit fundamental rights based on supposed intelligence, maturity, or other characteristics.” He concluded with an acknowledgment of the toll and tragedy of gun violence, but said that the statistics on gun misuse should “provide a perspective on whether we should restrict a constitutional right for the larger population based on a minuscule percentage of the populace who abuses that right.”

Judge Sidney Stein, a New York district judge sitting by designation, dissented. In his view, the lower court decision should have been affirmed in all respects. He particularly faulted the majority for “[n]eglecting consideration of either the disproportionate perpetration of violent crime by, or the relatively immature and variable cognitive development among, adults under age 21.” He also criticized the enunciation of a right to purchase guns: “I do not contest that the prohibition on FFLs selling semiautomatic rifles to young adults is directly tied to young adults’ ability to purchase semiautomatic rifles. However, while the Second Amendment right surely protects the right to possess and use firearms, the majority’s inferential leap to the assumption that it protects the right to purchase firearms goes too far.” And he rejected the majority’s characterization of the law as a ban, writing that it leaves open other mechanisms to acquire rifles (intrafamilial transfer, loans, etc.) and no prohibition on possession or use. Thus, he said, “to classify it as a ban without qualification is a patent misreading of the statutory text.”

One other critique I think worth highlighting is the dissent’s discussion of what the history can show: “historical review in line with an originalist understanding of constitutional rights tends to produce different interpretations and conclusions depending on the level of generality from which the analysis begins.” That criticism obviously has an impact not just on how these Second Amendment cases are discussed and debated, but the history and tradition at issue in Dobbs as well. (As Judge Sutton said in one of the circuit decisions on the Affordable Care Act’s individual mandate, “[l]evel of generality is destiny in interpretive disputes.”)

Although I disagree with much of the panel’s legal analysis, it strikes me as a mainstream, reasonable view of a contested question and, what’s more, as a decision vigorously vindicating Second Amendment rights that doesn’t resort to the vitriolic rhetoric and ad hominem attacks that I’ve criticized in other Second Amendment opinions (like Judge VanDyke’s recent separate opinion and Judge Benitez’s many opinions). I’ve said something similar about the serious tone of Judge Lee’s prior panel opinion affirming a Judge Benitez opinion and about other decisions vindicating Second Amendment rights, so my criticism of the tone of those other opinions isn’t because of the outcomes they reach, but the manner in which they go about doing so. Second Amendment doctrine is still in its infancy and the life and death stakes of litigation call for a seriousness that is often missing in some opinions by judges in the Ninth Circuit. Thankfully, no matter how one views the legal conclusion the panel reached here, this isn’t one of those rulings that lack seriousness.

There weren’t any new cert petitions filed this past week, but in its order list this morning, the Court denied cert in the Cassidy and Turner cases.

Petitions Pending

Petitions Disposed

There’s been a spate of new Second Amendment scholarship, including a just published piece by the Center’s own Joseph Blocher (with co-author Eric Ruben). There are also a couple of wide-ranging student pieces skeptical about/supportive of different gun regulations.

• Eric Ruben & Joseph Blocher, “Second-Class” Rhetoric, Ideology, and Doctrinal Change, 110 Geo. L.J. 613 (2022)

Abstract:

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as a matter of rhetoric. What do people mean when they allege that a constitutional right is subject to second-class treatment? What are the relevant audiences for these arguments? And how does such rhetoric travel throughout the legal system–from briefs, for example, into court opinions?

In this Article, we use Second Amendment litigation to illuminate the complex interplay between attorneys and judges invoking the second-class claim. After situating the second-class argument within the literature on law and rhetoric, we empirically investigate its development by isolating each use of second-class rhetoric in briefs and opinions in the decade following District of Columbia v. Heller. We show that the second-class argument is, indeed, increasingly prevalent in litigation as a justification for enhanced judicial protection of the Second Amendment. We also find support for the proposition that advocates use the second-class claim differently depending on the court they are in. Finally, we show how the second-class claim is ideological, appealing to a small but growing number of Republican-nominated judges. Our analysis provides a clearer picture of an increasingly common argument that has the potential to shape individual rights jurisprudence for years to come. And by illustrating a more nuanced picture of how a consequential legal argument operates on a rhetorical level, we hope to advance our understanding of how constitutional change happens.

• Zachary S. Halpern, Young Guns: The Constitutionality of Raising the Minimum Purchase Age for Firearms to Twenty-One, 63 B.C. L. Rev. 1421 (2022)

Abstract:

In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High School, Florida raised its minimum purchase age for all firearms to twenty-one. The National Rifle Association immediately challenged the law in federal court, claiming that it violated the Second Amendment rights of young adults aged eighteen to twenty. In 2021, in National Rifle Ass’n v. Swearingen, the U.S. District Court for the Northern District of Florida held that the law is consistent with the Second Amendment. This Note discusses how federal and state statutory regimes interact with the Court’s Second Amendment jurisprudence to govern young adults’ access to firearms. It examines arguments concerning the constitutionality of Florida’s minimum purchase-age provision and contends that the measure is valid because it is analogous to the “presumptively lawful” restrictions identified in Heller and because it survives intermediate scrutiny.

• Jamie G. McWilliam, The Unconstitutionality of Unfinished Receiver Bans, 2022 Harv. J.L. & Pub. Pol’y Per Curiam 2 (2022)

From the Introduction (footnotes omitted):

There is a long and storied tradition in the United States of privately manufacturing firearms. In fact, at the time of the founding, there were no large-scale firearm manufacturers. Rather, prospective firearm purchasers would either have to make the weapon themselves or find a blacksmith to create a one-off firearm for them. Private firearms were very precise–much more so than what governments could typically afford to provide for their own troops. They were so precise, in fact, that ammunition would have to be made at home to custom match the individual firearm.

In the past, making a firearm at home was an arduous process. A barrel would have to be hammered out of an iron sheet and then welded. The stock would be hand carved from wood. The firing mechanism would have to be fashioned from iron. And the gunpowder for ammunition would be made using foraged sulfur and the charcoal from campfires. This was a time-consuming process that more closely resembled the craftsmanship of an expensive mechanical watch than the computer-controlled machining of the firearm factory today.

Some still engage in this historical process of firearm building. Today, though, the prospective firearm manufacturer has less laborious options for doing so. They can purchase components to build a firearm from pre-built parts. They can also print firearms using one of many commercially available 3D printers. The relative ease with which firearms can be made using modern technology has led to the concern that convicted felons may circumvent their inability to purchase a firearm by making one at home. In response, a number of states have introduced laws to limit the ability of citizens to construct their own firearms.

Given the intriguing technology involved, the legal implications of 3D printed firearms and laws related to them have captured the attention of commentators and scholars. However, a more common, yet less flashy, method has gone largely under the radar: The uses of an unfinished receiver (colloquially known as an 80% lower). This paper examines the constitutionality of legal restrictions on the use of unfinished receivers. Many arguments against such restrictions are based on equal protection or due process, but this paper will focus on their Second Amendment implications.

Part I of this paper examines unfinished receivers and laws regulating them. Part II lays out the proper way to review Second Amendment restrictions. Part III uses this review framework to argue that bans on unfinished receivers are unconstitutional.

• Laura E. Johnson, Mental Health History Is History: A Lifetime Ban on Gun Possession Due to History of Involuntary Commitment Violates the Second Amendment, 100 N.C. L. Rev. 919 (2022)

Abstract:

Gun control is a widely debated issue in the United States that often centers on whether restricting access to firearms will increase safety. What is often left undiscussed is the stigma and stereotypes that long-lasting bans on firearm possession have on those subjected to gun control laws. Section 922(g)(4) of the Gun Control Act imposes a lifetime ban on gun possession for persons who have a history of involuntary commitment. The Sixth and Ninth Circuits, in Tyler v. Hillsdale County and Mai v. United States, respectively, were asked to decide whether this lifetime ban violates the Second Amendment. Applying intermediate scrutiny, the Sixth Circuit said yes while the Ninth Circuit said no.

This Recent Development examines this resulting circuit split as well as the government’s justifications for § 922(g)(4)–preventing crime and suicide–and argues § 922(g)(4) fails to adequately address those important issues, making it unconstitutional under the Second Amendment. Section 922(g)(4) permanently categorizes those with a history of involuntary commitment as mentally ill, instead of addressing the real issue: keeping guns out of the hands of those who currently present a danger to themselves and others. Recognizing that the government’s interests are nevertheless important, this Recent Development proposes the adoption of a federal extreme risk law that adequately instills measures aimed to prevent crime and suicide while also protecting the rights of those subjected to involuntary commitment.

• Leah Boston, Does the Second Amendment Entail the Right to Conceal Carry Firearms in Public for Self-Defense? The Proper Cause Issue Finally Addressed, 46 T. Marshall L. Rev. 135 (2022)

From the Introduction (footnotes omitted):

The year 2021 has been a long year for mass shootings, and it is not even halfway over. “18 weeks into 2021,” and the “U.S. has experienced 194 mass shootings,” averaging approximately ten per week. Not surprisingly, “by the end of [2020], at least 20 million guns” had been sold legally, increasing “12.4 million since 2019.” Along with this increase in gun sales, and in response to the death of George Floyd, 2020 saw “tens of thousands” protest and march in many cities around the U.S. The increase in gun sales and protests in the same year seems to correlate with the desire to arm oneself amidst the current events. Yet, Americans who favor some form of gun control are unlikely to see it depending on the state they live in.

America saw “its first significant form of gun control laws between the two World Wars”–an example of Congress’s constitutional authority to regulate. Congress has the power to write a uniform set of national regulations. “Once Congress exercises this right …, the states are constitutionally prohibited from adopting laws inconsistent with the federal” mandate. This is an example of federal preemption. Congress has the right to elect whether it will insert itself or delegate the responsibility to the states to regulate certain industries or activities. Regulation of the firearm industry is an example of Congress’s discretion. Congress has refrained from regulating the firearm industry exclusively, but it has not completely resigned its authority to the states. Instead, the states are free to regulate firearms alongside the federal government. Thus, when purchasing a firearm, an individual must comply with whichever law is the strictest. In turn, for gun rights advocates, states with stricter firearm laws may prove burdensome. Accordingly, firearm laws are frequently litigated. Thus, a possibly more conservative Supreme Court interpreting the Second Amendment is favorable for those who want limited firearm restriction. This paper will address our court systems’ different interpretations of the Second Amendment.

Part II will explain how the Supreme Court’s interpretation of the Second Amendment has evolved over time and will discuss a recent case that has caught the Court’s attention, N.Y. State Rifle & Pistol Ass’n v. Corlett. Part II will also discuss the New York state regulation at issue in that case. Part III will detail the circuit courts’ heavy divide over Second Amendment interpretations and this issue’s relation to the current makeup of the Supreme Court. This analysis will aid in predicting where each Justice stands on topics of the Second Amendment, firearm possession, and legislative gun regulation. Next, this paper will predict how the Supreme Court will rule on this basis. Finally, Part IV will suggest how the Supreme Court should rule in the Corlett case.

Another week with no new relevant cert petitions filed. The Cassidy case—challenging the MA requirement of a permit for home firearm possession—goes to conference this Thursday along with Turner, which challenges trial questioning about firearms. Both are probably unlikely grants, but Cassidy stands a greater chance than Turner, given that the respondents waived the right to respond in the latter case and the Court didn’t call for one.

Petitions Pending

Petitions Disposed