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Exactly one year ago, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that the Second Amendment protects the right to carry firearms in public and announced a new standard for reviewing firearms regulations that many feared would open already-porous American gun access even further. Bruen is shaping up to be the game changer many expected it would be. Judging from lower court decisions, under Bruen nearly every law restricting firearms is now vulnerable to constitutional challenge—including laws the Supreme Court indicated were constitutional and those that, prior to Bruen, courts declared valid.
There are reasons to think many lower courts are misinterpreting Bruen, however, reading it far too literally and narrowly. For the sake of individual and public safety, let us hope the Supreme Court agrees—and does something about it, soon.
Prior to Bruen, lower courts had reviewed gun regulations under a standard that combined historical analysis and consideration of empirical concerns relating to firearm safety. Under that approach, many gun regulations survived Second Amendment challenges. That’s not surprising or anomalous. Under a very similar approach, a great many regulations continue to survive scrutiny under the First Amendment.
But Bruen announced a new standard for judicial review of firearm laws that required contemporary laws be “consistent with this Nation’s historical tradition of firearm regulation.” In general, that means governments must defend contemporary gun laws by identifying 18th- or 19th-century laws that regulate firearms for the same reason and in a similar manner. Since no other constitutional right is protected this way, lower courts have struggled to apply Bruen’s historical standard. But in Bruen’s name, many have invalidated firearm laws the Supreme Court itself had suggested were safe or had previously been upheld by lower courts.
For instance, even though the court had indicated that laws prohibiting felons from possessing firearms are presumptively constitutional, the U.S. Court of Appeals for the 3rd Circuit recently invalidated a federal law banning certain felons from possessing firearms. Although the Supreme Court has indicated that only “law-abiding and responsible” persons have Second Amendment rights, the U.S. Court of Appeals for the 5th Circuit struck down a federal law banning persons subject to domestic violence restraining orders from having guns. The Supreme Court had also indicated that laws banning firearms in “sensitive places” are valid. But federal courts recently struck down New York and New Jersey laws banning firearms in public places, including subways, zoos, museums, libraries, bars, and other spaces.
Bruen’s impact has been widespread and monumental. Courts have invalidated laws prohibiting those under 21 and drug users from possessing firearms. They have also invalidated laws banning the possession of guns with obliterated serial numbers. Bruen-inspired challenges to legislation banning “ghost guns” (untraceable firearms manufactured from kits) and “assault” weapons are also pending.
While courts have not always followed precisely the same path in striking down gun laws, a common feature of their decisions is the absence of “relevantly similar” historical analogs. Thus, for example, a court reasoned that since firearms did not bear serial numbers during the 18th century (federal law did not require them until 1968), a recent law banning guns with obliterated serial numbers lacked any historical analog and was thus invalid. Because in the 18th century males under 21 lawfully possessed—and in some contexts were required to possess—firearms, a court held a contemporary ban on the sale of handguns to individuals under 21 violated the Second Amendment. Since New York and New Jersey could not produce relevant historical analogs for firearm bans in subways, zoos, museums, bars, and other places, courts invalidated those bans as well. Unless governments can come up with some number (Bruen does not say how many or how long they must be in force) of “relevantly similar” (Bruen does not clearly specify what counts as “relevant”) laws, any firearm law is vulnerable.
Bruen’s historical standard has produced absurd results. Consider United States v. Rahimi, the 5th Circuit decision that struck down the federal law temporarily prohibiting persons subject to domestic violence restraining orders from possessing firearms. To come into play, the law requires that the person be “subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner.” Such an order typically requires a court finding that the person “represents a credible threat” to a domestic partner.
There is overwhelming evidence that domestic abusers use firearms to harm and kill their victims. Yet Bruen appears to suggest that this evidence counts for nothing. Thus, the 5th Circuit considered several 18th-century laws the government argued were “relevantly similar.” It found none to be persuasive. To be sure, there were laws disarming Native Americans, enslaved people, and other classes of individuals the state deemed to be a threat. But those did not count, the court reasoned, in part since they disarmed “by class or group” rather than based on individualized findings of dangerousness. That head-scratching statement was followed by another, namely the observation that “[o]ur ancestors would never have accepted” a law disarming domestic abusers. Well, of course not. The white men who wrote the relevant laws considered domestic abuse a private and privileged matter, not one to be addressed by laws and courts.
Is this really what the court intended in Bruen? The majority opinion is written in a way that could leave that impression. But the opinion also acknowledges that Second Amendment rights are not absolute. Regarding history, the opinion says the historical standard is not a “straight jacket,” that governments need not identify a “dead ringer” or “twin” in terms of historical analogies, and the standard should be applied more flexibly to new technologies—presumably things such as “ghost guns” and high-powered weapons. Further, Bruen did not say safety and other evidence were irrelevant. Rather, the court indicated that historical and recent laws had to be similar in terms of why they were enacted and how they burdened self-defense, factors that invite consideration of contemporary means and ends. Contrary to these instructions, lower courts that have invalidated gun laws under Bruen have typically looked for “dead ringers” or ignored the court’s other cautions.
It is not evident the Supreme Court will support a strict historical approach that results in widespread invalidation of the nation’s gun laws, even if that was what was implied by Bruen. While he joined the majority in striking down New York’s “outlier” licensing law, Justice Brett Kavanaugh wrote a concurring opinion in which he emphasized that, “[p]roperly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.” Without resorting to historical analogs, Kavanaugh opined that objective firearm licensing schemes currently applicable in 43 states are valid. He also accepted that other “longstanding” prohibitions on possession by felons and the mentally ill and bans on firearms in “sensitive places such as schools and government buildings” are constitutional. Kavanaugh’s opinion was joined by Chief Justice John Roberts, who is also a key vote in Second Amendment cases.
The court is likely to accept a Second Amendment case for review soon, perhaps as early as this month. It will have a critical opportunity to clarify that long-standing restrictions on the right to keep and bear arms remain constitutional. Today we are a nation overwhelmed by gun violence and the grief it brings in its wake. The court should not handcuff today’s officials to laws made under divergent circumstances in the long distant past.
