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How Many States Make Up a Historical Tradition? Emerging-Consensus Doctrine and Lessons from International Law

Posted by on September 16, 2022

Bruen itself is not clear on how many laws, or laws from what time period specifically, are needed to establish a historical tradition of regulation.  The opinion tells us it is “doubtful” that three colonial-era regulations “could suffice to show a tradition of public-carry regulation,” and suggests that laws from the Founding era are accorded […]

Bruen and Mass Shootings: Same Cultural Script

Posted by on September 14, 2022

In Bruen, Justice Thomas highlights the story of a Black schoolteacher in post-bellum Maryland who was given a revolver by the local sheriff to protect his students against violence by white mobs (at 52-53). Despite the historical setting, arming teachers to address a pressing social problem of violence will sound familiar to the opinion’s contemporary […]

SCOTUS Gun Watch – Week of 9/12/22

Posted by on September 12, 2022

We’re well into September, but the Supreme Court remains in summer recess and therefore there are not major updates on any previously-filed cert petitions.  We’re adding a new case to the tracker this week:  Carnes v. United States.  The question presented in Carnes is “[w]hether the government, to establish that the defendant is an ‘unlawful user’ […]

Announcing the Center’s September 23, 2022 Symposium with the NYU Law Review

Posted by on September 9, 2022

We are excited to announce that the Center will co-host a symposium in New York on September 23 in coordination with the New York University Law Review.  The theme is Gun Rights and Regulation after Bruen.   The Supreme Court’s decision in Bruen marked a fundamental shift in Second Amendment law, announcing a new methodology […]

SCOTUS Gun Watch – Week of 8/29/22

Posted by on August 29, 2022

The Supreme Court’s summer recess continues, without any major new developments or cert petitions on the Second Amendment front.  The four cases that the Court GVR-ed post-Bruen continue to work their way through the lower courts.  The general trend has been to remand these cases back to the district-court level so that those courts can apply […]

Does Bruen Herald the End of Constitutional Strict-Scrutiny Amendments?

Posted by on August 26, 2022

This November, voters in Iowa will weigh in on a proposed state constitutional amendment that would make all gun regulations subject to strict scrutiny.  The full text of the proposed amendment, which was approved by the state legislature in early 2021, is as follows (emphasis added): The right of the people to keep and bear […]

Supreme Court Confirmation Hearings, Abortion, and the Second Amendment

Posted by on August 24, 2022

During her March confirmation hearing, Justice Ketanji Brown Jackson (who did not decide any Second Amendment cases as a district or appellate judge) was asked by Republican Senator Chuck Grassley:  “Do you believe the individual right to keep and bear arms is a fundamental right?”  Justice Jackson responded that “the Supreme Court has established that […]

Assault Weapons Bans after Bruen

Posted by on August 22, 2022

Assault weapons bans are certain to receive a great deal of attention post-Bruen.  Already, a federal judge in Colorado granted an emergency TRO application and enjoined the assault weapons ban in Superior, Colorado until November—albeit without argument from the town.  The House also passed a federal assault weapons ban earlier this month, although the bill […]

SCOTUS Gun Watch – Week of 8/15/22

Posted by on August 15, 2022

There are not many updates on the Supreme Court front, as the summer recess rolls on.  A few more of the cases we are tracking will be considered at the Long Conference in late September, including Morin, Baldea, and Torcivia.  The four cases that the Court GVR-ed post-Bruen are still being litigated at the appellate level.  In Bianchi […]

Federal Court Declines to Enjoin San Jose’s Gun Liability Insurance Mandate

Posted by on August 10, 2022

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, […]

Territorial Gun Regulation and the “Lost” History of the Federal Second Amendment

Posted by on August 8, 2022

The Court’s opinion in Bruen considered five territorial gun laws—passed in the Arizona, New Mexico, Wyoming, Idaho, and Oklahoma territories between 1869 and 1890—that supported New York’s position and, in some cases, imposed even broader restrictions on the right to public carry.  The Court proceeded to disregard all five as “exceptional” outliers.  The Court relied […]

History in Practice: How Have Lower Courts Applied Bruen So Far?

Posted by on August 3, 2022

Since Bruen was issued on June 23, lower courts have begun to apply its new framework to Second Amendment challenges.  As of today there are no major developments in the four cases that the Court GVR’ed shortly after Bruen, which include a challenge to Hawaii’s proper-cause analogue, two magazine-capacity cases, and a challenge to Maryland’s […]

SCOTUS Gun Watch – Week of 8/1/22

Posted by on August 1, 2022

A few updates this week on the Supreme Court front, as the summer recess continues.  Baldea and Whitaker (both permitting cases) are set for consideration at the Court’s Long Conference in September.  Massachusetts filed a response in Morin v. Lyver, a challenge to the state’s ban on issuing public carry licenses to those convicted of certain […]

Taylor & the Surprising Success of Gun Crime Defendants at the Supreme Court

Posted by on July 22, 2022

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 […]

Hawaii’s Public-Carry Law and the Challenge of Pre-State Historical Tradition

Posted by on July 20, 2022

The Supreme Court recently sent four Second Amendment cases back to the appellate level for reconsideration post-Bruen.  One of those cases is Young v. Hawaii, a challenge to Hawaii’s restrictive permitting scheme.  Of the four cases that were granted, vacated, and remanded, at first glance Young seems like the most obviously suspect under Bruen because […]

The Original Version of the Second Amendment: Religiously Scrupulous of Bearing Arms

Posted by on July 19, 2022

[This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.] In District of Columbia v. Heller, the Supreme Court relied heavily on (hotly contested) historical evidence about the original meaning of the Second Amendment.  In NYSRPA v. Bruen, the Court doubled down on this approach, […]

SCOTUS Gun Watch – Week of 7/18/22

Posted by on July 18, 2022

After the frenzied activity of the past few weeks, the Supreme Court in now in summer recess.  We’ll be doing these posts every other week, instead of every week, through the summer. We’re keeping an eye out for any major developments in the four cases that the Court GVR’ed following Bruen:  Association of New Jersey […]

The Bipartisan Safer Communities Act: What Does the Law Do and How Might It be Impacted by Bruen?

Posted by on July 15, 2022

In the aftermath of tragic mass shootings in Uvalde, Texas, and Buffalo, New York, a bipartisan committee introduced the “Bipartisan Safer Communities Act” (or BSCA) in the Senate on Tuesday, June 21. By week’s end, the bill had passed the Senate. The House of Representatives followed suit on Friday, and the bill was signed into […]

Justice Breyer’s Dissent in Bruen:  The Generality Problem and the Pitfalls of Searching for Historical Means and Ends

Posted by on July 8, 2022

We previously reviewed and commented on Justice Thomas’ opinion for the Court and the three concurrences in New York State Rifle & Pistol Association v. Bruen.  This post is a deeper dive into the dissent, which stridently criticized the Court’s historical-tradition methodology as both dismissive of modern legislative objectives and unworkable in practice.   The […]

Bruen’s Concurrences: The Questionable Durability of the Bruen Majority, and Ruminations on Originalism and the Limits of Historical Inquiry

Posted by on July 6, 2022

Jake previously summarized and reviewed Justice Thomas’ opinion for the Court in New York State Rifle & Pistol Association v. Bruen.  This post unpacks the three concurrences, which potentially shed light on the scope of the Court’s holding and the “historical tradition” of regulation that will be relevant in future Second Amendment cases. Justice Alito […]

SCOTUS Gun Watch – Week of 7/5/22

Posted by on July 5, 2022

Last Thursday, the Court issued orders in the four Second Amendment cases it had been holding pending Bruen:  Association of New Jersey Rifle & Pistol Clubs v. Bruck; Young v. Hawaii; Bianchi v. Frosh; and Duncan v. Bonta.  In each case the Court granted certiorari, vacated the judgment, and remanded to the relevant circuit for […]

Bruen, Analogies, and the Quest for Goldilocks History

Posted by on June 28, 2022

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 […]

SCOTUS Gun Watch – Week of 6/27/22

Posted by on June 27, 2022

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 Case Ct. Below Pet. Filed Implicated Law/Issue Status New […]

NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine

Posted by and on June 22, 2022

As we await the Supreme Court’s decision in NYSRPA v. Bruen—which will address the extent to which states can regulate public carry through licensing—the question of whether states can prohibit firearms in specific locations has become increasingly salient. During the Bruen oral argument, the justices posed hypothetical questions as to whether states could restrict firearms […]

SCOTUS Gun Watch – Week of 6/20/22

Posted by on June 20, 2022

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 Case Ct. Below Pet. Filed […]

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