In May, we wrote about the dramatic events leading up to the historic 2016 presidential election, in which Donald Trump made judicial nominations a centerpiece of his campaign. That article explained how President Trump fortified the U.S. Supreme Court with Originalist appointments and how that in turn led to last year’s pivotal decision in the NRA-supported case New York State Rifle & Pistol Association v. Bruen. Bruen, by all accounts, has transformed the landscape of Second Amendment litigation, forcing anti-gun activists and politically minded judges to reckon with a world in which the Second Amendment is treated with the same dignity as other fundamental constitutional rights.
This month I’d like to delve deeper into the current landscape of Second Amendment litigation and the furious reaction it is provoking within the firearm-prohibition lobby. The takeaway is that while judicial decisions set the bounds of what is legally permissible, it still takes winning elections to ensure those boundaries are respected in the policies and rules that govern firearm owners within the United States.
The Bruen case challenged New York’s “may-issue” concealed-carry licensing regime (the only way New Yorkers can lawfully carry for self-defense) as a violation of the right to “bear” arms under the Second Amendment. This was because licensing officials had discretion to deny even otherwise-eligible applicants for lacking a “special need” for self-defense and used this discretion to make the granting of licenses the exception, rather than the rule. A six-justice majority of the court made several important rulings in an opinion authored by Justice Clarence Thomas.
First, it held, “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
Second, the court ruled: “Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.”
A third aspect of the case clarified the methodology judges must use when deciding cases under the Second Amendment. This holding disavowed the “interest-balancing” tests that had become common among lower courts in the years after the Supreme Court’s 2008 decision in District of Columbia v. Heller, which nullified D.C.’s ban on handguns and operable firearms within the home.
The essence of Bruen is that courts have to take the Second Amendment seriously.
Instead, it clarified and re-asserted Heller’s own standard of review, which “centered on constitutional text and history.” The court explained: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” In that case, “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” “Only then,” the majority instructed, “may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
Post-Heller, judges had been choosing outcomes based on their subjective estimation of who had the stronger interest in the case. This in practice almost always led to courts upholding gun-control laws, as their purported basis (although rarely borne out in fact) was to ensure “public safety,” the highest value a court can ascribe to official conduct. This meant that virtually any restriction or requirement short of an unqualified gun ban was permissible, even if it imposed substantial burdens on the exercise of the right.
Bruen, on the other hand, re-emphasized that the Second Amendment means what it says. And for the state to overcome its clear command that “the right of the people to keep and bear Arms, shall not be infringed,” it has to show its regulation is consistent with “a relevantly similar” historical tradition that would have been known to the Founding generation.
This standard of review reduces what the Supreme Court called the “judge-empowering” effects of “interest-balancing” and redirects the inquiry to the more objective question of what sorts of firearm laws were tolerated by those who lived at the time the Second Amendment was adopted.
It’s hard to overstate how fundamentally different the Bruen inquiry is from what courts were doing post-Heller or how much anguish it is causing anti-gun activists who were used to judges reflexively deferring to public officials’ invocations of “public safety,” no matter how far-fetched. But the difference can be seen in the decisions of the cases themselves.
Jacob Charles, a law professor at Pepperdine University in Malibu, Calif., has been tracking the outcome of Second Amendment cases in Bruen’s wake. A July article in Politico magazine summarizing an upcoming law review article by Professor Charles noted that “more than a dozen state and federal laws have been invalidated in whole or in part since the Bruen decision.” More specifically, according to the Poltico piece: “Thirty percent of civil cases and nearly 4 percent of criminal cases that have cited Bruen have resulted in the invalidation of gun control provisions, among 284 total decisions addressing Second Amendment claims.” This, the author adds, “greatly outpaces the immediate aftermath of the 2008 decision in District of Columbia v. Heller.”
Notable cases include, for example, the issue of whether the Second Amendment allows the government to ban law-abiding adults aged 18 to 20 from buying otherwise-legal types of firearms. A panel decision from the Fourth Circuit Court of Appeals initially said “no” but then was bizarrely vacated as moot when the plaintiff in the case became old enough to satisfy the law. On the other hand, a panel decision from the Eleventh Circuit Court of appeals in an NRA-backed case initially said “yes.” But that decision, too, was vacated, when the full Eleventh Circuit decided to rehear the case.
The gun-control movement, moreover, often prides itself on being “trailblazing,” “groundbreaking” and “progressive.” Examples of this include such “novel” ideas as “smart gun” mandates, liability insurance as a pre-condition of gun ownership, “safety standards” for gun designs, firearm and ammunition “sin” taxes, and the list continues. Yet admitting these are new ideas in firearm regulation basically admits they fail the Bruen standard of review.
That doesn’t mean, however, that no firearm regulation is allowed under Bruen or that modern laws have to be framed in the identical language of their 18th and 19th century forebears. There is some room for “analogical reasoning” under the “relevantly similar” framework. How much room, however, remains to be determined. The Supreme Court has already taken a case that is sure to be closely watched involving a firearm prohibition for persons subject to certain domestic violence restraining orders. The Fifth Circuit Court of Appeals rejected the government’s proposed analogues as too broad and dissimilar from the challenged prohibition, which became law in the late 1990s. How the high court rules in that case should clarify what sort of “dangerous people” prohibitions remain permissible under the Second Amendment.
The essence of Bruen is that courts have to take the Second Amendment seriously. And Donald Trump’s remaking of not just the U.S. Supreme Court, but of the federal judiciary nationwide, helps reinforce the chance that courts will apply that standard faithfully. Yet even normally activist courts have less room to maneuver under the historical analysis now required in Second Amendment cases, and the burden is back on the government—where it should be—to muster the historical evidence to support its modern laws.
Of course, the idea that anti-gun legislatures are now subject to meaningful constitutional constraints infuriates gun-control proponents, whose main reactions to the Bruen decision have been denial and defiance. As I’ve discussed previously, New York and other anti-gun states made their carry laws even more restrictive after Bruen. And statistics emerging from licensing officials in New York City reveal they are granting even fewer permit applications than before New York lost the case. Another upcoming law review article actually argues in favor of “flagrantly” unconstitutional firearm seizures, banking on the legal concept of “qualified immunity” to shield the perpetrators of these lawless actions from consequences, at least when there is no prior judicial decision with similar facts. Calls to “reform” the court and impeach conservative justices abound among anti-gunners.
Such actions, of course, merely prompt additional litigation. Indeed, cases challenging Bruen backlash laws are already making their way through the courts, with the usual mixed results at different stages of the process. Judicial activism remains stubbornly prevalent, with even San Jose’s “innovative” insurance mandate upheld (for now). As ever, the Supreme Court will have the final say, to the degree it decides to get involved.
But this only underscores the importance of continued political participation by pro-gun Americans. Besides the clear value of a pro-gun executive appointing judges and other officers who respect the Second Amendment, pro-gun legislators temper the anarchic tendencies of aggrieved anti-gunners who petulantly seek to tear down whatever institution, official or method of jurisprudence disappoints them. Not every abuse will get its day in court, and even beneficial judicial opinions are of limited value if those pulling the levers of power are determined to ignore or circumvent them.
One thing both pro- and anti-gun forces can agree on: Bruen was not the end of the gun-control debate in America. It merely opened up new fronts in an ongoing struggle.