The Volokh Conspiracy
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How Should Courts Evaluate Gun Regulations After Bruen?
There's much to be said and debated about the N.Y. State Rifle & Pistol Ass'n v. Bruen opinions, and who got it right. But for now, I want to turn to the practical question: What does Bruen mean for gun laws going forward?
Here is my very tentative summary of what appears to me on first read, based on Justice Thomas's majority opinion (joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett) plus a bit from Justice Kavanaugh's concurrence, joined by Chief Justice Roberts:
[1.] The right to keep and bear arms generally includes the right to have arms available for self-defense, whether at home or outside the home.
[2.] This right can be limited to the extent that there is a historical tradition of limitation—especially from shortly before and around the time of the Framing, but also perhaps from up to the late 19th century. "[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."
And this history must be based on the aggregate of many jurisdictions' decisions, rather than a handful of outliers. Thus, for instance, the Court concludes that "we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation." Later, as to post-Civil-War regulations, it notes that, "we will not give disproportionate weight to a single state statute and a pair of state-court decisions." And as to regulations in Territories, "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 'contradic[t] the overwhelming weight' of other, more contemporaneous historical evidence."
But some reasoning by analogy, beyond the precise restrictions that had been enacted in the past, is inevitable and permissible, just as analogies to past practices and decisions are commonplace in other judicial decisionmaking, including in interpreting constitutional provisions:
Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones (2012) (holding that installation of a tracking device was "a physical intrusion [that] would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted")….
Much like we use history to determine which modern "arms" are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are "relevantly similar." …
To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not "uphold every modern law that remotely resembles a historical analogue," because doing so "risk[s] endorsing outliers that our ancestors would never have accepted." On the other hand, analogical 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.
[3.] The right can also be limited by regulations that impose only a modest burden on law-abiding people's ability to defend themselves. "Heller and McDonald point toward at least two metrics" for evaluating regulations: "how and why the regulations burden a law-abiding citizen's right to armed self-defense…. [W]hether 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." Thus, for instance, nondiscretionary licensing requirements for carry permits are constitutional, at least if they aren't too burdensome and are justified by the interest in limiting gun ownership to "law-abiding, responsible citizens":
[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' "shall-issue" licensing regimes, under which "a general desire for self-defense is sufficient to obtain a [permit]." Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry.
Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens." And they likewise appear to contain only "narrow, objective, and definite standards" guiding licensing officials ….
That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
Justice Kavanaugh, joined by Chief Justice Roberts, stressed this in a concurring opinion:
[T]he Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense…. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements. Unlike New York's may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice.
[4.] But if a law substantially burdens the right without having sufficient historical support, it can't then be upheld under "intermediate scrutiny," "strict scrutiny," or a similar test. The government can't simply say that it has a compelling interest in preventing armed crime or other injury, and then substantially burden the right to serve that interest. That sort of approach, the Court says, could end up eviscerating the right altogether:
If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of "intermediate scrutiny" often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment "is the very product of an interest balancing by the people" and it "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms" for self-defense. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.
[5.] In particular, the Court signaled that some specific kinds of restrictions are constitutional:
[a.] Restrictions on carrying in "sensitive places such as schools and government buildings":
Consider, for example, Heller's discussion of "longstanding" "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." 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.
[b.] Bans on concealed carry but only if open carry is allowed: "The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation…. States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly." In practice, I expect that today the jurisdictions that currently don't have statutory provisions generally allowing carrying (California, Hawaii, Maryland, Massachusetts, New Jersey, New York, and D.C.) would, when forced to choose, prefer to allow concealed carry rather than open carry. But in theory, I expect that such a jurisdiction could follow the 19th-century model in many states by allowing only open carry. Likewise, I expect that a jurisdiction could ban open carry and allow only concealed carry (as I believe Florida currently does, for instance).
[c.] As noted above, nondiscretionary licensing restrictions, unless they involve "lengthy wait times in processing license applications or exorbitant fees" or otherwise substantially burden the ability of responsible, law-abiding gun owners to get a license. Query whether this would also allow waiting periods for gun purchases, and not just for gun carry licenses (a question that the Court had no occasion to decide here).
[d.] Restrictions on gun ownership by felons and the mentally ill: The Kavanaugh/Roberts concurrence reaffirms this point, which was also made in the Heller majority and the McDonald lead opinion: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." The Court isn't entirely explicit on the rationale for this, but presumably its view is that historically gun ownership had been limited to "law-abiding, responsible citizens." (Query whether "citizens" here means citizens of the United States, or just means, as it often does, all private individuals.)
[e.] Restrictions on machineguns and other "dangerous and unusual" weapons—which probably means unusually dangerous weapons: Again, from the Kavanaugh/Roberts concurrence, quoting Heller and McDonald: "[T]he sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons."
[f.] "[L]aws imposing conditions and qualifications on the commercial sale of arms" (again, based on the Kavanaugh/Roberts concurrence, Heller, and McDonald). Nonetheless, presumably if the laws substantially burden the rights of people to possess guns (rather than just regulating the behavior of the commercial sellers), they may well be unconstitutional.
[6.] Much of course remains unresolved—as is common for any foundational Supreme Court decision (for instance, the Court's early free speech decisions, which left much to be decided in future cases). For example:
[a.] Does the right kick in at age 18 (the general age of majority in the U.S. today) or at age 21 (the age of majority through most of American history)? This may turn on how courts interpret certain late 19th century laws that limited under-21-year-olds' rights as to certain kinds of guns.
[b.] Where would one place bars, restaurants that sell alcohol, or even stores that sell alcohol for off-premises consumption? Many states ban gun carrying in at least some such places, but I'm not sure how deep the history of that is.
[c.] What does all this mean for "red flag" laws? Here's a passage that deals with historical precedents for restricting gun ownership by people based on court orders finding a heightened risk of misconduct on their part, though such statutes required only posting a monetary bond, not surrendering one's guns altogether:
In 1836, Massachusetts enacted a new law providing: "If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided." [Some states had similar rules. -EV] …
[T]he surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of "reasonable cause to fear an injury, or breach of the peace." As William Rawle explained in an influential [1829] treatise, an individual's carrying of arms was "sufficient cause to require him to give surety of the peace" only when "attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them." Then, even on such a showing, the surety laws did not prohibit public carry in locations frequented by the general community. Rather, an accused arms-bearer "could go on carrying without criminal penalty" so long as he "post[ed] money that would be forfeited if he breached the peace or injured others—a requirement from which he was exempt if he needed self-defense."
Thus, unlike New York's regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee rather than a ban….
The Court also noted that the laws were only lightly enforced: "[O]ne scholar who canvassed 19th-century newspapers—which routinely reported on local judicial matters—found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement."
In any case, that's my general sense of the matter; I'd love to hear what others think.
