As James Madison observed when introducing the U.S. Bill of Rights, there is no substitute for granting to the people certain “safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power.” Once a right has been established on paper, Madison explained, it becomes part of the national character, and, if infringed, it may be appealed to like any other law. As we approach the 250th anniversary of the United States, we can see clearly what a difference this system has made.
And yet—sadly, there’s always a yet!—while the Second Amendment is imperative and useful and worthwhile, some of the politicians and judges who take an oath to uphold the U.S. Constitution instead work to undermine it.
The election of Donald Trump (R)to the presidency, and of a Republican majority to the U.S. Senate, has brought good news on this front. But that good news is not self-executing. During his four years in office, former President Joe Biden (D) added a substantial number of figures to the federal judiciary—and one of them to the U.S. Supreme Court—who are downright hostile to the Second Amendment. Until those individuals are balanced out by faithful constitutionalists, the right to keep and bear arms will be in danger. It is, of course, true that the big Supreme Court cases of the last two decades (Heller, McDonald, Bruen) were decided correctly. It is also true that, outside of those big cases, the Supreme Court has been reluctant to take on Second Amendment cases—even when the lower courts are clearly flouting the high-court’s rulings. This abdication has empowered those lower courts, and, in consequence, made filling them with responsible jurists an even more essential goal.
President Trump’s Nominees
As president, Biden successfully added 235 judges to the various federal courts. Not only did this represent the highest number of judicial appointments achieved in a single presidential term since Jimmy Carter’s record of 262 between 1977 and 1981; it exceeded, by one, the number of judges that President Trump got through in his first term. Last time around, Trump added 234—happily, three of those were to the Supreme Court. Thus far in his second term, President Trump has nominated 13 judges—four of which have been processed and accepted by the Senate.
As was the case last time, the quality of President Trump’s nominations are excellent. All are faithful constitutionalists, and all have records and affiliations that indicate fealty to the Second Amendment. (One of them, Judge Eric Chung, is even a member of the International Defensive Pistol Association!) Nevertheless, given the size of the country, and the number of cases that must be heard, quantity matters, too. It is for this reason that President Trump recently urged the Senate to clear the current crop of nominations and move onto a second round—presumably at a faster pace than has been observed thus far.
Compared to Trump’s first term, there are fewer vacancies to fill out of the gate—at present, just 49 of the around 900 positions are open. Still, whatever the numbers, there is no good cause for delay. As this was going to print, nominees for the First and Ninth Circuit are waiting for approval, as are nominees for district courts in Florida, Missouri and Montana. Given their locations, both the First Circuit (which includes Massachusetts) and the Ninth Circuit (which includes California) are involved in a disproportionate number of significant Second Amendment cases. Adding good judges to them is vital.
Although protecting the right to keep and bear arms involves a wide array of legal issues making their way through the courts, four main areas of litigation ought to be of special interest to Second Amendment advocates.
Concealed Carry
The Bruen decision of 2022 held that no government in the United States—be it federal, state or local—may require that law-abiding Americans present a “proper cause” in order to obtain a carry permit. In essence, Bruen confirmed that the Second Amendment is not a “second-class right,” and that those who wish to exercise it are no more obliged to prove that they “need” to do so than they would be when invoking other provisions within the U.S. Bill of Rights. In so ruling, the Court confirmed the longstanding American presumption that rights do not flow from government; they pre-exist it.
The state in question in Bruen was New York. By a vote of 6-3, New York’s “proper-cause” licensing scheme lost—and badly. Infuriatingly, though, that was not the end of the story. Instead of accepting that it was no longer allowed to administer its carry regime on a “may-issue” basis, New York played a cynical linguistic game. First, it replaced its “proper-cause” requirement with a “good moral character” requirement—which, in practice, maintains the discretionary character of the scheme. Second, it expanded its list of “sensitive places” so dramatically that it became practically impossible for millions of New Yorkers to actually use their right, even if they manage to get a permit. Together, these moves represent a deliberate attempt to undermine Bruen’s commands and to render them inoperative in New York.
Thus far, it’s worked. In 2024, the Supreme Court was asked to evaluate New York’s law, after the Second Circuit Court of Appeals had let most of it stand. And yet, instead of standing up for its own precedent, the Supreme Court passed on the opportunity and sent the case back down to the Second Circuit for reconsideration. Legally, this was not an endorsement of New York’s patently unconstitutional laws. Practically, though, it left all of those unconstitutional laws in place. Which is a big problem—not only because a right delayed is a right denied, but because, in the absence of an intervention from the Supreme Court, other states can look at New York’s example and copy it—this has already happened. And, as that happens, we are back to square one, with some states obeying the Constitution, others ignoring it and the Supreme Court seemingly reluctant to reenter the fray.
Gun-related Speech
It is quite the achievement for a state to write a law that simultaneously violates the First Amendment and the Second Amendment, but, if any state was going to manage it, it was all but guaranteed to be California. In 2022, California passed a bill that made it illegal for “firearm industry members” to advertise—or even speak publicly about—“any firearms-related product” if there was a chance that some form of speech could be “appealing to minors.” Under its terms, those found guilty of its violation could be fined $25,000.
The consequences of this law were immediate—and ridiculous. Young shooting-sports participants were forced to quit. A high school clay-target league shut down. Firearms magazines with sections directed at teenagers were silenced. Manufacturers that produce legal guns that are easier for minors to use to learn marksmanship and safe gun handling were obliged to stay quiet about them on their own websites. More broadly, American citizens who had even a tenuous connection to the “firearms industry” were required to stop talking about guns, shooting or the right to keep and bear arms, on the off chance that their speech might be heard by a child. This, obviously, was unconstitutional, and, after some wrangling with a recalcitrant district court in California, it was held to be so in full by the Ninth Circuit.
For now, California’s law is inoperative. But, at this stage, the Ninth Circuit’s injunction of the law is only temporary. In essence, the Ninth Circuit has ruled that California is likely to lose if the case is considered on the merits and suspended its law until that time. But being likely to lose and actually losing are not the same thing. If California appeals the decision, the case will be played out in full. Practically, this could involve a rehearing by the entire Ninth Circuit, and, after that, a likely appeal to the Supreme Court, irrespective of which way the full Ninth rules. It is difficult to imagine that such a transparently illegal attempt to subvert the rights of American gun owners could pass muster anywhere—even in the traditionally anti-gun Ninth Circuit. And yet, as New York has shown, the combination of an unmoored lower court and an aloof Supreme Court can lead to some self-evidently bizarre outcomes. There is no exception in the First Amendment that permits California Gov. Gavin Newsom (D) to suppress speech that he dislikes—especially when that speech is in furtherance of another enumerated right.
Bans on the AR-15
Perhaps the most egregious of all the legal disputes that are currently percolating involves the most popular rifle in the United States: the AR-15. In 2008, in D.C. v. Heller, the Supreme Court ruled that the Second Amendment must be presumptively applied to any bearable weapon that it is “in common use.” This, manifestly, includes the AR-15 and its variants, which are owned by about 25 million Americans.
On its own, Heller would be sufficient to prevent the prohibition of the AR-15. But when one adds in Bruen, the case is watertight. There is no historical example of a firearm such as the AR-15 being banned. Indeed, as Judge Roger Benitez of California has demonstrated repeatedly, the AR-15 is nothing less than the “modern-day musket.” Certainly, it is inconvenient for those who wish to dismantle the right to keep and bear arms that the Second Amendment continues to exist, but it does exist, and, better still, its original public meaning has been confirmed by the Supreme Court repeatedly.
Despite this, a host of America’s lower courts remain in open rebellion against the law when the topic is AR-15s. Thus far, the First Circuit, Fourth Circuit and Seventh Circuits have all found ways to deem the AR-15 “different” from other guns, or to conclude that, for one reason or another, they do not fall under the protection of the Second Amendment. This cannot stand—and, in some district courts (most recently in California and Colorado) it has not.
During the last term, the Supreme Court declined to take up any of these cases—effectively leaving the bans in place. Interestingly, however, in an opinion explaining why he had voted against consideration, Justice Brett Kavanaugh was keen to signal that he was skeptical of laws banning AR-15s, and to predict that the Court “should and presumably will address the AR 15 issue soon, in the next term or two.” Hopefully, when it does, the Court will defend its own precedents. In the interim, the people of Illinois, Indiana, Maine, Maryland, Massachusetts, New Hampshire, North Carolina, Rhode Island, South Carolina, Virginia, West Virginia and Wisconsin will be left without constitutional protection of “America’s rifle.”
Rights Restoration
In yet another instance of a lower court brazenly ignoring the Supreme Court’s clear instructions, in February, the Tenth Circuit upheld a lifetime ban on possessing firearms that had been applied to a woman named Melynda Vincent, who had been convicted of writing a bad check. Under Bruen, only gun-control laws that have a clear historical analog are presumed to be constitutionally permissible, and, quite obviously, there is no historical analog that supports the permanent removal of Second Amendment rights from figures who have not been found—or even alleged—to be dangerous. There is a comprehensible case against permitting a murderer from owning a firearm after his prison sentence is complete. There is no comprehensible case in favor of extending this rule to people who have been punished for fraud. Twice now, the Tenth Circuit has made a mistake in doing so. Its error ought to be corrected.
The silver lining is that, by ruling as it did, the Tenth Circuit has created a circuit split—that is, it has ruled differently on a constitutional matter than did a separate lower court that is responsible for a different part of the country. In a separate case, called Range v. Garland, the Third Circuit determined that, under Bruen, a man who had been convicted of lying on a food-stamp application was not excluded from the Second Amendment because his crime was procedural rather than dangerous.
Often, when the lower courts are divided on a matter of national importance, the Supreme Court steps in to the resolve the dispute. As of yet, however, this has not happened. In 2024, the court took Melynda Vincent’s case, only to send the question back down to the Tenth Circuit for reconsideration in light of its decision in Rahimi.
Despite this—and despite the clear line that was drawn between dangerous and non-dangerous individuals in Rahimi—the Tenth Circuit responded by doubling down. As in the case of New York’s carry regulations, this has created an untenable situation in which the Supreme Court has been clear about the meaning of the law, but only some of the country’s courts have been willing to abide by it. Naturally, it cannot be the case that the Second Amendment protects the rights of nonviolent criminals in Pennsylvania (for which the Third Circuit is responsible) but does not do so in Utah (which is covered by the Tenth Circuit). Until the Supreme Court weighs in, however, that will remain the status quo.
All of which is to say that, despite the guarantees of the Second Amendment, protecting the right to keep and bear arms is a never-ending project. Over time, politicians and judges come and go, and, as they do, the fortunes of our basic liberties rise and fall, inevitably reminding us of Benjamin Franklin’s famous observation that the framers of the United States bequeathed us a free republic—if we can keep it.
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