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How Some Courts are Evading Bruen by Changing its Rules

Lower Courts evading the "plain text" of the Second Amendment

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The U.S. Supreme Court in New York State Rifle & Pistol Asssoc. v. Bruen instructed lower courts how to decide right to arms issues: "In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." If so, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." This Post describes how some lower courts are evading Bruen by contrivances that claim particular regulations do not involve "the Second Amendment's plain text."

This Post proceeds as follows:

1. A short overview of how a preliminary step in most constitutional adjudication necessarily involves a look at the plain text of the clause in question.

2. Discussion of the plain text of the Freedom of the Press Clause, which is the Bill of Rights provision most similar to the Second Amendment, in that both involve rights regarding particular man-made tools.

3. Summary of Supreme Court glosses on the meaning of the Second Amendment, which may, at least arguably, save some arms restrictions that could not be justified under Bruen's "historical tradition" test.

4. Summary of some easy cases that held an individual's conduct was not protected by the Second Amendment's plain text.

5. Discussion of cases involving firearms businesses, some of which wrongly claimed that the plain text does not apply to firearms commerce.

6. Discussion of waiting periods, shooting range zoning, rifle bans, and serial number cases that incorrectly claimed that the activity at issue was not covered by the Second Amendment's plain text. In most of these cases, the courts conducted an alternative analysis that upheld the challenged law under the historical tradition test, so the erroneous rulings about plain text might be considered harmless error. This Post does not examine the quality of reasoning of any court's application of the historical tradition test.

7. Finally, the Post discusses a pair of cases where judicial error about plain text clearly changed the result. When deciding challenges to prohibitory laws about switchblade knives, the Massachusetts Supreme Judicial Court and the U.S. District Court for the Southern District of California both agreed that the government failed to meet its burden to justify the statutes based on historical tradition. The Massachusetts court therefore held the law unconstitutional, because carrying a switchblade knife is conduct protected by the plain text of the Second Amendment. The California court, however, claimed that even the mere keeping of a switchblade knife in one's home does not involve the plain text of the Second Amendment.

1. Consideration of plain text is usually necessary in constitutional cases

In the Second Amendment, as in most constitutional law cases, a court must first read the plain text to determine if a constitutional provision is relevant. For example, the Eighth Amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Suppose a President knowingly made libelous statements about an individual, and a result, other individuals who were deceived by the President's words stopped doing business with the individual. If the individual sued the President for violation of the Eighth Amendment, courts would dismiss the claim because the President's words did not set any bail condition, nor impose any fine or punishment.

Similarly, if the U.S. Air Force maliciously dropped a bomb on an American's house, killing everyone inside and destroying the building, the victims' families might assert a variety of constitutional claims, but if their pleading included a Third Amendment claim, that claim would be dismissed. The Amendment states: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." The government's misconduct did not involve the occupation of any home.

Under the common law doctrine of principals and incidents, a constitutional right or power -- like any other contract term, unless there are express reservations -- includes lesser, "incidental" powers and rights that are necessary to effectuate the principal power or right. See, e.g., 2 William Blackstone, Commentaries on the Laws of England *347 (1765-69) ("A subject's grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant."). Regarding enumerated congressional powers, the Necessary and Proper Clause makes the point explicitly. See, e.g., McCulloch v. Maryland, 17 U.S. 316, 406, 411-16 (1819) ("there is no phrase in the instrument [the Constitution] which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described.").

Similarly, the Sixth Amendment principal "right to have the assistance of counsel for his defence" includes incidental rights such as the counsel having adequate time to prepare a defense, and being able to confer privately with the defendant. The plain text of the Sixth Amendment does not resolve every constitutional question -- such as under what conditions the right to counsel may be waived, or whether there should be special rules for waiver by juveniles — but the plain text does tell us that waiver of counsel is a Sixth Amendment issue.

In Luis v. United States, a four-Justice plurality held that governmental pretrial seizure of a defendant's untainted assets violated his Sixth Amendment right to pay for an attorney.  136 S.Ct. 1083 (2016). While the plurality used a balancing test, Justice Thomas's concurrence focused on plain text, and the doctrine of principals and incidents:

The law has long recognized that the "[a]uthorization of an act also authorizes a necessary predicate act." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 192 (2012) (discussing the "predicate-act canon"). As Thomas Cooley put it with respect to Government powers, "where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the other, is also conferred." Constitutional Limitations 63 (1868); see 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884) ("[W]henever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied"). This logic equally applies to individual rights. After all, many rights are powers reserved to the People rather than delegated to the Government. Cf. U.S. Const., Amdt. 10 ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people").

Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. "There comes a point … at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself." Hill v. Colorado, 530 U.S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, "implies a corresponding right to obtain the bullets necessary to use them," Jackson v. City and County of San Francisco, 746 F.3d 953, 967 (C.A.9 2014) (internal quotation marks omitted), and "to acquire and maintain proficiency in their use," Ezell v. Chicago, 651 F.3d 684, 704 (C.A.7 2011). See District of Columbia v. Heller, 554 U.S. 570, 617–618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U.S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendment "right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise." McConnell v. Federal Election Comm'n, 540 U.S. 93, 252  (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part).

Id. at 1097-98.

Constitutional text is not meant to be read in such a hyperliteral manner as to effectuate a nullification of the right. The "right to keep and bear Arms" is, most literally, a right to possess and carry. The literal text does not mention a right to use arms (such as by shooting a firearm or bow, or cutting with a knife). Not does the right to "keep and bear Arms" expressly mention ammunition, such as cartridges for firearms or arrows for bows. Yet any reasonable reading of the "plain text" of the Second Amendment includes the right to keep and carry ammunition and to shoot that ammunition.

2. The Freedom of the Press Clause

To consider what is meant by the "plain text" of the Second Amendment, consider the Amendment's close relative, the First Amendment "freedom  . . . of the press."

To the modern sensibilities, the historical connection between arms and the press may seem odd. But, to the Framing generation, the connection would have been commonsensical. The right to bear arms and the freedom of the press presented the exact same type of question for the Framers: can there ever be a natural right to a man-made device? In the case of arms and presses, the Framers believed so.

Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies, 17 Wm. & Mary Bill Rts. J. 1037, 1048-49 (2009).

First, we see by context that the constitutional text only includes some of the possible meanings of "press" or "arms." The First Amendment is about presses that affix communications to a medium, not about wine presses. The Second Amendment is about weapons and armor (both which were considered "arms" in dictionaries of the time), and not about the sides of chairs or sofas.

A judge who was hostile to existence of nongovernment newspapers might claim that the First Amendment "plain text" includes solely the right to own a printing press without being punished by the government. However, the more plausible reading of the plain text would include, besides the right to own a printing press:

  • the right to acquire, manufacture, or repair a printing press;
  • the right to do the same for all materials used in the operation of a press, such as printer's ink and blank sheets of paper;
  • the right to receive or conduct education and training in the operation of a press; and
  • the right to improve a press by adding accessories or accoutrements that help the press operate better, such as printing plates, powder shakers, dryers, covers (to keep dust out), paper cutters, upgraded powder brakes or gear shafts, cleaning tools, and chemical paper coatings.
  • The plain text protects the old-fashioned Franklin Press, modern newspaper printing presses, and computer printers, whether dot matrix or laser.

The plain text of "the freedom . . . of the press" also includes the right to use a press for any purpose one chooses, subject to exceptions "consistent with this Nation's historical tradition" of press regulation, such as libel or obscenity.

All of the above is easily transposable to the plain text of the Second Amendment, and many lower courts, adhering to Bruen and its predecessors Heller and McDonald have done so. Having made the easy determination that "the Second Amendment's plain text covers an individual's conduct," these courts then proceed to the Bruen original understanding inquiry, wherein the government may attempt to "demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."

Because Bruen allows novel forms of arms regulation to be upheld based on analogy to older ones, judges sometimes reach different results, based on how carefully they believe analogies must be drawn. This Post does not address arguments about whether the analogies were correct in any given case; rather, I will describe how courts have differed on the preliminary "plain text" question.

3. Supreme Court authorization of other arms controls

But first, it must be noted that the Supreme Court's Second Amendment decisions have not only declared a standard methodology; the decisions have also announced what many courts consider to be rules that trump the need for analysis under plain text as elucidated by historical tradition. Starting with those from Heller:

"[T]he Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." District of Columbia v. Heller, 554 U.S. 570, 625 (2008).

"Although we do not undertake an exhaustive historical analysis today of
the full scope of the Second Amendment, nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at 626-27. [This was repeated by the majority opinion in McDonald. In Bruen, the Chief Justice and Justice Kavanaugh joined the majority opinion in full, and also authored a concurrence that repeated this sentence.]

"We also recognize another important limitation on the right to keep and carry
arms. Miller said, as we have explained, that the sorts of weapons protected were
those 'in common use at the time.' 307 U.S. at 179. We think that limitation is
fairly supported by the historical tradition of prohibiting the carrying of 'dangerous
and unusual weapons.'" Id. at 627.

"Justice BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us." Id. at 635.

McDonald:

"our central holding in Heller : that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).

And from Bruen:

"To be clear, nothing 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,  rather than requiring the 'appraisal of facts, the exercise of judgment, and the formation of an opinion,'—features that typify proper-cause standards like New York's. 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." New York State Rifle & Pistol Assoc. v. Bruen, 142 S.Ct. 2111, 2138 n.9 (2022) (citations omitted).

Most of the language above is arguably dicta, but every Circuit Court of Appeals agrees that recent Supreme Court dicta is nearly as binding as a Supreme Court holding. David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits' Second Amendment Doctrines, 61 St.L. U.L.J. 193, 199 (2017). The dicta mesh uneasily with the Supreme Court's mostly-originalist methodology in its right to arms cases, because at least some the approved laws — such as felon bans and shall issue licensing for concealed carry — come from the twentieth century.

Lower courts have struggled with the question of whether or not the dicta create self-standing rules that are immune from ordinary originalist analysis pursuant to Bruen. See, for example, the conflict in Maryland Shall Issue v. Moore, in which a Fourth Circuit en banc majority upholds Maryland's Handgun Qualification License state, which creates a second level of licensing to acquire a handgun to keep at home. The majority said that Bruen's approval of objective licensing for handgun carry was sufficient to support the home licensing law, while the dissent disagreed. 2024 WL 3908548 (4th Cir. Aug. 23, 2024).

For purposes of this Post, assume arguendo that the maximalist position articulated by the anti-gun lobbies is correct, and all the arms controls quoted above are presumptively constitutional. So I will not criticize any judicial opinion that upholds a particular law  because the arm in question is "dangerous and unusual," or because it applies to allegedly "sensitive places," or imposes "conditions and qualifications on the commercial sale of arms," or creates an objective and expeditious licensing system with an affordable fee.

4. Some easy cases on plain text

The most obvious cases in which the plain text inquiry precludes a successful Second Amendment claim are for use of a firearm in a violent crime, such as armed robbery. The "right to keep and bear arms" does not include a right to use a handgun to rob a liquor store, just as "the freedom . . . of the press" does not include a right to use a printing press to print bank maps for a particular gang of bank robbers.

The Second Amendment protects "the right of the people." Before the Supreme Court's recent Rahimi decision, some lower courts, quoting the Supreme Court's Heller and Bruen language about "law-abiding, responsible citizens" held that "the people" meant only the law-abiding, responsible ones. This view was rejected by all nine Justices in United States v. Rahimi, 144 S.Ct. 1889 (2024). Rahimi was an American citizen, but was neither law-abiding nor responsible. The Court held that he is nevertheless one of "the people," and so his possession of firearms was conduct covered by the plain text of the Second Amendment. The Court then conducted the historical tradition inquiry, and by 8-1 found sufficient analogical support for the federal statute banning firearms possession by persons under domestic violence restraining orders, based on an individualized judicial determination that the person is a violent threat. 18 U.S.C. §922(g)(8)(C)(i).

A simple "plain text" application of "the right of the people" was Fifth Circuit's recent United States v. Medina-Cantu, No. 23-40336 (5th Cir. Aug. 27, 2024). The three-judge panel per curiam decision held that Bruen and Rahimi did not "unequivocally abrogate" prior circuit precedent that the federal ban on firearms possession by illegal aliens is constitutional; the precedent had been decided under the Fifth Circuit's pre-Bruen balancing test, a test that Bruen did unequivocally abrogate. Even so, Rahimi and Bruen did not abrogate the Fifth Circuit's prior rationale that illegal aliens are not "members of the political community," and therefore have no Second Amendment rights. A concurrence by Judge Ho put the matter a little more directly. Illegal aliens are not part of "the people."

5. Business and commerce regulations

Knowingly making false statements or using false identification to deceive a licensed firearms retailer ("FFL" -- Federal Firearms Licensee) with respect to any fact material to the lawfulness of the sale is a federal felony. 18 U.S.C. §922(a)(6). This was upheld as not involving conduct protected by the plain text of the Second Amendment, based on circuit precedent, and on a post-Heller Supreme Court case interpreting and applying the statute.  United States v. Soto, 2023 WL 1087886 (W.D. Tex. Jan. 27, 2023) (citing Abramski v. United States, 573 U.S. 169 (2014)).

Similarly, 18 U.S.C. §924(a)(1)(A) forbids knowingly making false statements or representations regarding firearms records. It was upheld under the theory that convicted felons have no arms rights, and under pre-Bruen circuit precedent that the Second Amendment does not include the right to sell arms. In the alternative, historical tradition supported regulation on "the commercial sale" of firearms, and the tradition could be analogized to individual sales. United States v. Porter, 2023 WL 113739 (S.D. W.Va. Jan. 5, 2023).

Likewise in another case: "the violations involve false statements to acquire firearms, the repeated transfer of firearms without a license, and proceeds derived from those activities."

Mr. Gonzalez has put forth no arguments to demonstrate how any of the charged counts regulate or restrict conduct protected by the Second Amendment—namely the Defendant's ability to possess firearms for self-defense. Rather, the violations involve false statements to acquire firearms, the repeated transfer of firearms without a license, and proceeds derived from those activities. These types of regulations do not in any way limit Mr. Gonzales' ability to defensively arm himself. And without this initial showing, Bruen's historical analysis is unnecessary and unwarranted.

United States v. Gonzalez, 2022 WL 17583769 (D. Utah Dec. 12, 2022). In essence, the court was saying that the federally-required paperwork to purchase a firearm (which can be filled out at the gun store), and the paperwork, fee, and processing time to acquire a license to engage in the business of selling firearms, have nothing to do with the Second Amendment because they do not affect the defendant's ability "to defensively arm himself." This is incorrect for multiple reasons.

First, the Second Amendment right is not limited only to self-defense, although in this case the result would not be changed by consideration of other Second Amendment activities, such as collective defense, hunting, target shooting, or collecting.

Second, the paperwork burden of filling out forms a gun store might be considered de minimis, but the court engaged in no analysis of the question, and did not cite precedent for the principle of de minimis exceptions to constitutional rights.

Third, the statute requiring a license to engage in the business of repeatedly selling firearms for profit certainly implicates the Second Amendment, even if that statute can be upheld.

Other cases upholding 18 U.S.C. §922(a)(1)(A), which prohibits dealing in firearms without a Federal Firearms License, reached the correct result, but made serious errors along the way. All of the criminal defendants were plainly engaged in dealing firearms as defined by federal law (repetitive transactions for profit). Courts have upheld the statute, as they should, based on Heller's statement about the presumptive constitutionality of "conditions and qualifications on the commercial sale of firearms."

However, some courts went further, and opined that firearms dealers and business have no Second Amendment rights. See United States v. King, 646 F. Supp. 3d 603 (E.D. Pa. 2022) ("the Second Amendment does not protect the commercial dealing of firearms"); United States v. Tilotta, 2022 WL 3924282 (S.D. Cal. Aug. 30, 2022 (The Second Amendment does not apply to the "buying, selling, storing, shipping, or otherwise engaging in the business of firearms."); United States v. Flores, 652 F. Supp. 3d 796 (S.D. Tex. 2023) (agreeing with Ninth Circuit's pre-Bruen en banc Texiera decision that firearms stores have no Second Amendment rights, even though customers do). See also Gazzola v. Hochul, 645 F. Supp. 3d 37 (N.D.N.Y. 2022) (Second Amendment does not apply to corporations, but plaintiff retailers have derivative standing to assert the Second Amendment rights of their customers).

The claims above are questionable. If firearms businesses have no Second Amendment rights, then neither do First Amendment businesses such as printing press manufacturers or bookstores. The Supreme Court has long allowed bookstores to bring First Amendment cases, without need to assert the third-party rights of their customers. However, since Heller, lower courts have split about whether firearms businesses have Second Amendment rights. See Kopel, Does the Second Amendment Protect Firearms Commerce? 127 Harvard L. Rev. Forum 230 (2014).

It is true that people can manufacture their own firearms or print their own books at home, but for most people, the existence of commercial businesses is necessary to effectuate the right. Textually, the Second Amendment right belongs to "the people," just as does the Fourth Amendment right, and businesses certainly have Fourth Amendment rights. Marshall v. Barlow's Inc., 436 U.S. 307 (1978) (requiring warrant for inspections of a corporation's premises).

The general rule for whether persons who organize in a corporate form have constitutional rights is that it depends on the nature of the right. Most constitutional rights do apply to businesses, because businesses by their nature can exercise these rights. For example:

  • Free Speech Clause. First Nat'l Bank v. Bellotti, 435 U.S. 765, 777 (1978) ("The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.")
  • Contracts Clause. Dartmouth College v. Woodward. 17 U.S. (4 Wheat.) 518, 646 (1819) ("The framers of the constitution did not deem them unworthy of its care and protection.").
  • Equal Protection Clause. Santa Clara Cty. v. S. Pac. R.R. Co., 118 U.S. 394, 396 (1886) (the Court "does not wish to hear argument on the question whether" the Equal Protection Clause "applies to these corporations. We are all of the opinion that it does.").
  • Sixth Amendment right to criminal jury trial. Armour Packing Co. v. United States, 209 U.S. 56, 73 (1908) (corporation's right not violated by trial being in the district where the offense allegedly occurred, instead of in the district where the corporate headquarters was located).
  • Seventh Amendment right to civil jury trial  Ross v. Bernard, 396 U.S. 531, 532–33
    (1970) ("[T]he right to a jury trial attaches to those issues in derivative actions to
    which the corporation, if it had been suing in its own right, would have been entitled
    to a jury.").

But it is impossible for a corporation to invoke the Fifth Amendment Self-Incrimination Clause, which "operates only where a witness is asked to incriminate himself—in other words, to give testimony which may possibly expose him to a criminal charge." Hale v. Henkel, 201 U.S. 43, 67 (1906). Because the Clause "is limited to a person who shall be compelled in any criminal case to be a witness against himself; and if he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation." Id. at 70. The Fifth Amendment text leads to the same result for labor unions. See United States v. White, 322 U.S. 694 (1944).

As for the Second Amendment, a recent article explains that "purpose analysis, which entails judicial examination of the purpose behind particular constitutional provisions to determine their boundaries, dictates that corporations should have Second Amendment rights. Indeed, corporations' interests in these rights are rooted in and further the key purposes of the Second Amendment: self-defense, protection of third parties, and defense of property." Robert E. Wagner, The Corporate Right to Bear Arms, 15 Wm. & Mary Bus. L. Rev. 369 (2024). See also Kopel & Adam Winkler, Planned Parenthood's Right to Bear Arms, Real Clear Policy, Dec. 3, 2015.

6. Some implausible claims about "plain text"

Below are some post-Bruen decisions that wrongly held that plaintiffs' claims do not even implicate the plain text of the Second Amendment.

6.A. Waiting periods

The U.S. District Court of New Mexico upheld a waiting period to acquire a firearm, because purchasing a firearm is not covered by the plain text of the Second Amendment. Ortega v. Grisham, 2024 WL 3495314 (D.N.M. July 22, 2024).

The U.S. District Court for Colorado did the same. Rocky Mountain Gun Owners v. Polis, 701 F.Supp.3d 1121 (D. Colo. 2023). To the credit of the judges who authored the above two opinions, the opinions also presented, arguendo, alternative analysis claiming that waiting period could be upheld by analogies to historical tradition. (As noted above, this Post does not discuss whether particular arguments about historical tradition are persuasive or not.)

6.B. Shooting ranges

In a case challenging a municipal zoning law revision to prevent operation of a shooting range, the majority of the Pennsylvania Supreme Court held that the plain text of the Second Amendment was implicated, but that the restriction could be justified by analogy to historical tradition. Barris v. Stroud Township, 310 A.3d 175 (Pa. 2024). The dissent argued that the majority had been too loose in its acceptance of scattered laws about firearms discharge and shooting galleries. Of most concern, for purposes of this Post, is a concurring and dissenting opinion that claimed the Second Amendment was not implicated at all.

Another case involved a municipal zoning change to thwart a public outdoor shooting range with a 1,000 yard bay. Oakland Tactical Supply, LLC v. Howell Twp., Michigan, 103 F.4th 1186, 1197 (6th Cir. 2024). A three-judge panel of the Sixth Circuit unanimously agreed that shooting ranges are covered by the plain text of the Second Amendment. But according to the 2-1 majority, the plain text did not cover shooting at 1,000 yards; plaintiffs "make no convincing argument that the right extends to training in a particular location or at the extremely long distances Oakland Tactical seeks to provide." Further:

It is difficult to imagine a situation where accurately firing from 1,000 yards would be necessary to defend oneself; nor have Plaintiffs identified one. To the extent that historical evidence is probative of the scope of a right derived by necessary implication, like the right to train, the historical evidence Plaintiffs present — a handful of examples of rifleman making shots from 600 to 900 yards during the Revolutionary War — is not convincing. Assuming these examples show that the Founding-era public understood military proficiency to include accuracy at these long distances, they do not establish that the Second Amendment right — which is unconnected to "participation in a structured military organization," Heller, 554 U.S. at 584 — was similarly understood. And beyond this historical evidence, Plaintiffs make no real argument that long-distance training is necessary for the effective exercise of the right to keep and bear arms for self-defense, other than briefly noting that the federally chartered Civilian Marksmanship Program offers 1,000-yard training. We cannot conclude, based on these arguments, that the plain text of the Second Amendment covers the second formulation of Plaintiffs' proposed
course of conduct—the right to commercially available sites to train to achieve proficiency in long-range shooting at distances up to 1,000 yards.

Id. at 1198-99. The dissent would have remanded for consideration of two undeveloped issues: "first, whether training for purposes of confrontation or self-defense is limited to target shooting at certain distances (which, as discussed above, the plaintiffs have not adequately briefed); and second, whether the Township's restrictions on the plaintiffs' proposed conduct is consistent with the Nation's historical traditions of firearm regulation (which the Township thus far has not briefed at all)." Id. at 1204 (Kethledge, J., dissenting).

The majority's holding that the "plain text" of the Second Amendment somehow applies to shooting at close distances but not at a thousand yards was erroneous. First, the Supreme Court has never said that Second Amendment right is solely limited to self-defense, even though the Court has called self-defense a "core" purpose of the right.

It is true, as the Sixth Circuit noted, that the Second Amendment "right of the people," is not limited solely to "participation in a structured military organization," such as the militia. Nevertheless, the "plain text" of the Second Amendment includes "A well-regulated Militia, being necessary to the security of a free State, . . ." Heller explained that the leading American constitutional writer of the latter 19th century, Michigan Supreme Court Justice Thomas "Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms . . ." Heller at 617. Justice Scalia's majority opinion then quoted with approval from one of Cooley's treatises:

[A] militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.

Congress created the Civilian Marksmanship Program (CMP) in 1903, to promote civilian familiarity and proficiency with precisely the types of arms that would helpful to national defense. As the Oakland Tactical majority admits, "the federally chartered Civilian Marksmanship Program offers 1,000-yard training." Given that the CMP believes 1,000 yard training is important for collective defense, and that "the plain text" of the Second Amendment includes the militia, the majority opinion's claim that "the plain text" disappears at some distance shorter than 1,000 yards was insupportable.

6.C. Bans on common rifles

Last month, a 10-5 majority of the Fourth Circuit allowed prohibition of the most common rifles in American history. Bianchi v. Brown, 111 F.4th 438 (4th Cir. Aug. 6, 2024) (en banc). The majority opinion states: "We hold that the covered firearms are not within the scope of the constitutional right to keep and bear arms for self-defense . . ."

Like the Sixth Circuit's Oakland Tactical case, the Fourth Circuit Bianchi majority incorrectly claims that the "plain text" of the Second Amendment limits the right to arms solely to personal defense. The "plain text" argument then explains that AR rifles are more powerful than handguns — which is true for all types of rifles above the puny .22LR caliber. The opinion asserts that AR rifles are so incredibly powerful and dangerous that the rifles could not possibly have self-defense utility. Many of the supposed facts supporting the assertion come from district court opinions in which the lawyers for plaintiffs relied exclusively on the "common use" doctrine from Heller, and pointedly refused to contest any of the ridiculous assertions about AR rifles made by the government defendants. (For discussion of some of these assertions, see my Posts AR rifle ammunition is less powerful than most other rifle ammunition: Bullet speed matters, but so does bullet weight, Reason/Volokh Conspiracy, Apr. 11, 2023; How powerful are AR rifles? About the same as other rifles, Reason/Volokh Conspiracy, Feb. 27, 2023).

As pointed out in the Bianchi dissent, the Fourth Circuit majority ignored Heller's statement about how the right contributes to collective defense.

To the Bianchi majority's credit, the opinion also included an alternative argument attempting to justify the ban based on historical tradition.

6.D. Serial numbers

Federal law prohibits possession of a firearm with a defaced or obliterated serial number. 18 U.S.C. §922(k). In an opinion released the same day as Bianchi, the Fourth Circuit upheld the federal ban on possession of a firearm with a defaced or obliterated serial number. United States v. Price, 111 F.4th 392 (4th Cir. 2024) (en banc). According to the majority, "the conduct regulated by § 922(k) does not fall within the scope of the right enshrined in the Second Amendment because a firearm with a removed, obliterated, or altered serial number is not a weapon in common use for lawful purposes."

The Price majority came closer to adhering to the plain text, because the majority recognized that the right applies to all "lawful purposes," not solely personal self-defense. Likewise, the Price majority adhered to the Heller gloss, which protects arms "in common use for lawful purposes."

However, the majority's support for its conclusion that firearms with defaced serial numbers are not in common use for lawful purposes was thin. First, the majority couldn't think of any good reason why a peaceable person would remove a serial number. (One dissent pointed out that some persons just don't want to be tracked by Big Brother.) Second, the majority cited an ATF report that only 3% of traced firearms have defaced or obliterated serial numbers; from this fact the majority inferred that if criminal use of such firearms is not common, then use by noncriminal citizens must also be rare. (Another dissent pointed out the weakness of this reasoning.)

A concurring opinion said that the majority had over-complicated the case. Price was a convicted felon, and so his Second Amendment rights had been extinguished. (Unlike in some other cases, defendant Price had made no argument for an as-applied exception to the federal ban on firearms possession by persons convicted of a crime punishable by more than a year in prison; he did not argue that his conviction was long ago, nonviolent, and he had led a respectable life ever since.)

One concurrence chided the majority for its claim that there was no Second Amendment issue in the case; the concurrence would have upheld the statute based on analogy from historical tradition. The majority "treats . . . historical analysis as a component of the first step, despite Bruen and Rahimi's clear statements that historical analysis falls in step two."

As one dissent observed:

the Court in Rahimi explicitly stated that the government bears the burden to justify its law any time it "regulates arms-bearing conduct," Rahimi, 144 S. Ct. at 1897. In other words, the burden flips to the government — and we transition to Bruen's second step — as soon as the challenger establishes that the regulation covers "arms-bearing conduct." And notably, the Court didn't limit "arms-bearing conduct" to "conduct that historically fell within the traditional scope of the right to keep and bear arms." Instead, historical limitations on the scope of the right are relevant to establish whether the government is permitted to regulate the "arms-bearing conduct" in the manner it does — the step-two inquiry. Id.

7. Switchblades

Many of the above cases might have come out the same way even if the courts had not made erroneous holdings or dicta about the Second Amendment's plain text. An illustration about how plain text errors can change the result comes from two recent cases about switchblades.

For background, a switchblade is a type of folding knife. Most folding knives have a bias towards closure; that is, the blade will stay inside the handle until the user manually extracts it. The extraction can be accomplished by: holding the handle with one hand and pulling the top of the blade, near the tip, with two fingers of the other hand; using the thumb of the hand that is grasping the handle to move the blade via a hole or knob on the blade; or using one hand to flick the blade open.

In contrast, a "switchblade" is definitionally an "automatic knife," with a bias towards open. A spring in the handle puts the blade under constant pressure towards opening; the blade is kept in the handle by a lock, and when the user pushes a lever or button on the handle, the blade springs into an open position. Many users prefer switchblades because they move to the full open position more reliably than any other type of folding knife. In a self-defense situation, the reliable opening could be critical.

Additionally, the switchblade is the best knife for one-handed opening. This is important for persons with disabilities who can only use one hand. And also important for anyone in a situation where the other hand may be busy — such as a rancher extracting an animal tangled in barbed wire, and who is using the second hand to pull the wire away from the animal.

Switchblades have existed for centuries, but because their internal mechanisms are more complicated, and hence more expensive to manufacture, they did not become mass market items until the latter half of the nineteenth century. Then, they were marketed especially to women as the best folding knife to avoid breaking a fingernail.

After World War II, returning soldiers who had served in Italy brought back Italian switchblades, particularly from Naples, and these knives were associated with criminal activity by juvenile delinquents, most notably in the Broadway play West Side Story.

Today, switchblades are legal in most states. Possession is banned in Delaware, New Mexico, Minnesota, and Washington. In California, blades must be 2 inches or less.  The same for Connecticut, except for blades of 1.5 inches or less. Rhode Island and Vermont allow carry for switchblades 3 inches or smaller. In New York, carry is allowed only with a valid hunting, fishing or trapping license.

The 1958 Federal Switchblade Act (29 U.S.C. §1241) forbids interstate commerce in switchblades, except for law enforcement sales. A Second Amendment challenge to the Act was dismissed based on the U.S. Attorney's representations to the court that there had been only four enforcement actions since 2004, and none since 2010. Knife Rights v. Garland, No. 4:23-cv-00547-O (N.D. Tex. June 3, 2024).

In Massachusetts, a statute outlawed all carrying of switchblades in public with a blade over 1.5 inches. On August 27, the Massachusetts Supreme Judicial ruled 5-0 that the ban violates the Second Amendment. Commonwealth v. Canjura, No. SJC-13432 (Mass. Aug. 27, 2024). The court first found that the conduct of carrying a switchblade is covered by the plain text of the Second Amendment. The court rejected the Attorney General's argument that the Second Amendment only applies to firearms. As Heller had explicated, the text says "arms," not "firearms." Historical evidence showed that in the eighteenth century, folding knives "were commonly possessed by law-abiding citizens for lawful purposes around the time of the founding. . . . Therefore, the carrying of switchblades is presumptively protected by the plain text of the Second Amendment."

Hence, the government had the burden of proof to show that bans on switchblades are consistent with our nation's historical tradition of arms regulation. The government could not carry that burden. All of the historic laws it pointed to involve fixed blade knives, such as Bowie knives; none involved pocket knives. The state switchblade laws of the 1950s and 1960s came far too late (per Bruen) to establish a historical tradition that elucidated the original meaning of the Second Amendment.

As for the Attorney General's argument that switchblades are not "in common use" for "lawful purposes," there was no evidence presented. The legality of switchblades in most states belied the notion that these knives are used mainly by criminals. There was no evidence that switchblades are "uniquely dangerous" compared to other folding knives. To the contrary:

Certainly, like handguns, switchblade knives are particularly suitable for self-defense because they are "readily accessible . . . cannot easily be redirected or wrestled away . . . [are] eas[y] to use . . . [and] can be [held] with one hand while the other hand" uses a phone to summon help. Heller, 554 U.S. at 629.

An opposite result was reached by a U.S. District Court for the Southern District of California, even though the California court agreed with the Massachusetts court that there was no American legal tradition that could be analogized to support a switchblade ban. Knife Rights v. Bonta, No.: 3:23-cv-00474 (S.D. Cal. Aug. 23, 2024).

As the court noted, Bruen does not say who bears the burden of proof at what the court called Bruen's "plain text" "step one." Perhaps this is because the plain text issue, like similar issues on the Freedom of the Press Clause, was not meant to be a matter requiring factual evidence.

However, since some other district courts in Ninth Circuit have treated "plain text" as placing a burden of proof on the challenger, the Knife Rights v. Bonta court did so too. There being no extant data on how often switchblades are used for self-defense against criminal attackers, plaintiffs had not carried their burden of proving that switchblades are "in common use today for self-defense."

For the sake of completeness, the California court conducted the Bruen historical tradition analysis, and found that the historical knife laws cited by the government could not justify a complete ban on possession and carry. However, that finding did not matter, because plaintiffs had failed to prove that their conduct (wanting to possess and carry switchblades for all lawful purposes) was covered by the plain text of the Second Amendment.

Although the Supreme Court cannot correct every erroneous lower court decision, the Court should choose an appropriate vehicle to correct the minority of post-Bruen lower court decisions that read the plain text of the Second Amendment contrary to ordinary understanding.