The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Who among us is not eagerly awaiting the September 16 publication of the annual Cato Supreme Court Review? Among the articles I look forward to reading are the VC's Ilya Somin on the vaccine mandate cases and Jonathan Adler on West Virginia v. E.P.A. If you want to read about the Supreme Court's blockbuster decision on the Second Amendment, wait no longer. My Cato article Restoring the right to bear arms: New York State Rifle and Pistol Association v. Bruen is now available on SSRN.com.
Parts I and II of the article summarize the background to Bruen. After the Supreme Court decided United v. States v. Miller in 1939, rejecting a bootlegger's a facial challenge to a federal tax and registration system for sawed-off shotguns, the Court mostly ignored the Second Amendment in the succeeding decades. While several opinions mentioned the right to keep and bear arms in passing, and treated it as a normal constitutional right, the Court took no cases on the matter.
Starting in the late 1980s, the Court did begin taking cases involving the rights of gun owners, and deciding them favorably–but these cases turned on statutory interpretation, administrative law, or federalism, not the Second Amendment.
In the 1997 federalism decision Printz v. United States, which held that Congress cannot force local government officials to carry out a federal background check on handgun buyers, Justice Thomas concurred to raise the Second Amendment. After surveying recent scholarship, he wrote, "Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic.'"
The Court did so in the 2008 District of Columbia v. Heller, holding that the District could not ban handguns, and could not ban possession of loaded firearms in the home. The Court followed up in 2010 with McDonald v. City of Chicago, ruling that the Fourteenth Amendment makes the Second Amendment enforceable against state and local governments, like almost all the rest of the Bill of Rights.
But then, the Court again fell into torpor. Many cert. petitions explained how lower courts were flouting Heller and McDonald. But only one petition was granted. In the 2016 Caetano v. Massachusetts, a per curiam decision granted, vacated, and remanded a decision upholding a ban on electric stun guns. As the Court noted, the rationale of the Massachusetts Supreme Judicial Court flatly contradicted Heller's rules for the Second Amendment. So did plenty of other lower court cases, but cert. was not granted.
Dissenting in Heller and McDonald, Justice Breyer had argued that Second Amendment cases should be reviewed under what he called "interest balancing." And that was what many lower courts were doing; although they called it "intermediate scrutiny," it often omitted the intermediate scrutiny subrules.
For example, intermediate scrutiny requires courts to look at the pro/con evidence submitted by each side yet. But sometimes, courts only considered whether the government had introduced evidence to support the restriction. If the government met that light burden, the government would win—never mind the counter-evidence from the other side.
"Justice Breyer's Triumph in the Third Battle over the Second Amendment" was the apt title of a survey of post-Heller cases by UMKC law professor Allen Rostron, a former lawyer for Handgun Control, Inc. (today, the Brady Center). 80 Geo. Wash. L. Rev. 703 (2012).
Senators send the Court a threat letter
The Supreme Court reached a nadir after granting cert. for a bizarre New York City regulation that forbade licensed handgun owners from taking their guns out of the city, such as to a target range in New Jersey, or to a second home. The Second Circuit had brushed off the regulation as probably not involving a Second Amendment issue at all. Even if, arguendo, the Second Amendment were implicated, the government's burden of proof was satisfied by a police official's speculative affidavit about road rage. Without identifying a single misdeed by any New Yorker transporting an unloaded, locked handgun.
After cert., the City asked for and received a briefing extension, which provided time for the City and State to revise the law, thus giving plaintiffs some but not all of the relief they requested. In the merits briefing, five Democratic U.S. senators—Sheldon Whitehouse (R.I.), Mazie Hirono (Haw.), Richard Blumenthal (Conn.), Richard Durbin (Ill.), and Kirsten Gillibrand (N.Y.)—sent the Court a threat letter in the form of an amicus brief. They warned that unless the Supreme Court dismissed the case as moot, they would "restructure" the Court.
For whatever reason, the Court later did so, in a 6-3 per curiam. A month after the dismissal, the Court denied all 10 pending Second Amendment cert. petitions. According to CNN, Chief Justice Roberts had signaled his four pro-Second Amendment colleagues that if there were any cert. grants, he might vote to uphold the anti-gun laws at the merits stage.
Bruen ends the Court's passivity
Things changed when Justice Amy Coney Barrett joined the Court. Things changed even more when Bruen was decided. The Court repudiated the Breyerish approach of the lower courts. Heller and McDonald had already shown how the Court evaluates gun control laws based on text as informed by historical tradition. This time, the Court explicitly told the lower courts to follow the methodology of the Heller majority, not the Heller dissent.
Most of the Cato article describes the Bruen rules for deciding cases. Foremost is:
When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.
The government "must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms."
Judges should not engage in interest balancing, nor should they defer to legislative interest balancing. The interest balancing was conducted by the people themselves when they adopted the Second Amendment. So said Heller, McDonald, and Bruen.
In considering "the Nation's historical tradition of firearm regulation . . . not all history is created equal." Most important is the Founding Era. For the Fourteenth Amendment, this means Reconstruction. Both are of great importance for the Second Amendment, as the Fourteenth Amendment was intended, in part, to fully effectuate the Second.
Old English practices that ended long before American independence are of little relevance. Post-ratification history is "secondary"; it can confirm or illuminate but not contradict or override the original public understanding. The late nineteenth century is not irrelevant, but it is less relevant than any preceding part of American history. As for the twentieth, it is by then far too late to establish some new "historical tradition" that could override the text of the Second Amendment.
How to make analogies
Modern gun laws need not be "twins" from the historical tradition. Structured analogies may be made to laws that "relevantly similar." Bruen does not purport to "exhaustively" define how judges may consider similarity. Instead, Bruen states that Heller and McDonald point to "at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense."
"How" means: "whether modern and historical regulations impose a comparable burden on the right of armed self-defense."
"Why" means: "whether that burden is comparably justified."
The second metric, the "why," is immensely important. It prevents historic, burdensome laws that were enacted for one purpose from being used as a pretext to impose burdens for other purposes. As Mark Frassetto, an attorney for Everytown for Gun Safety, writes "[m]ilitia and fire prevention laws imposed substantial burdens on founding era gun owners." In his view, courts should uphold laws that impose equally substantial burdens "regardless of the underlying motivation for regulation." Mark Frassetto, The Duty to Bear Arms: Historical Militia Law, Fire Prevention Law, and the Modern Second Amendment, in New Histories of Gun Rights and Regulation: Essays on the Place of Guns in American Law and Society (Jacob Charles, Joseph Blocher & Darrell Miller eds.) (Oxford Univ. Pr. forthcoming).
Bruen expressly forbids this methodology.
Besides the two most central self-defense "metrics" from Heller and McDonald, there are certainly more. As both cases state, the right to arms is for all "lawful purposes." For example, recreational arms activities, such as hunting or target shooting, are in themselves part of the right. Additionally, they build skills for defense of self and others.
The Cato article covers other doctrinal issues, the three Bruen concurrences and the dissent, and how the six affected States are responding. So far, only New York is engaged in massive resistance, with a new law that bans licensed carry almost everywhere. According to the Gov. Kathy Hochul's description of the bill she signed, the only places allowed for licensed carry would be "Probably some streets."
A week after Bruen, the Court granted, vacated, and remanded four cases for reconsideration in light of Bruen. One was a bear arms case, which Bruen resolves. Two involved magazine confiscation laws from California and New Jersey. The third was Maryland's ban on very common types of rifles.
I suggest that such laws face serious problems under Bruen. The only American precedents for bans on types of arms before 1900 are from the Jim Crow period: Tennessee and Arkansas bans on concealable handguns, and a 1893 Florida statute for an exorbitantly expensive permit to possess a "Winchester rifle or other repeating rifle." Such rifles had recently been used by black people in Florida and elsewhere to deter lynch mobs. As a concurring opinion in a 1943 Florida Supreme Court case pointed out:
The statute was never intended to be applied to the white population and in practice has never been so applied. . . . [T]here has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and nonenforceable if contested.
Finally, I guess how some gun controls laws might fare under the Bruen test. The most problematic may include long gun bans for young adults (18-20), and California's ban on all new models of semiautomatic pistol since 2013.