Oregon voters handed gun reformers a major victory when they backed a ballot measure creating one of the country’s most stringent systems for buying and selling firearms in 2022. New gun purchases would require approval from local law enforcement — a rule common in Europe but almost unheard of in the United States. Measure 114 banned both semi-automatic “assault” rifles and magazines capable of holding more than five rounds.
It was a fleeting triumph. The next month, a state judge barred the law from going into effect. Parallel legal challenges are also working their way through the federal courts.
A similar thing is happening across the country as courts toss out gun restrictions both new and old. In the past year, federal judges scrapped a variety of gun laws, including those limiting concealed carry in certain places in New York, a ban on “ghost guns” in Delaware, a ban on people under 21 carrying handguns in Texas, and restrictions on gun ownership by those under felony indictment and also those under domestic violence protection orders in Texas.
The sudden challenge to these laws in courts across the country is a direct result of the Supreme Court’s rightward shift, mostly starkly symbolized by its June 2022 decision in Bruen v. New York State Rifle & Pistol Association.
That decision, written by Justice Clarence Thomas and joined by the court’s other five conservatives, struck down New York’s limits on issuing concealed carry permits. In doing so, it denied government arguments in court that gun restrictions “promote an important interest” like community safety. Instead, gun restrictions may only be upheld if they are “consistent with this Nation’s historical tradition of firearm regulation.”
This new historical test demands that those defending gun restrictions prove to a court that Americans in the 18th and 19th centuries approved similar restrictions and that such restrictions were widespread and long-lasting enough to be considered a tradition. If those long-ago Americans did not consider something a problem, neither can Americans today.
“It’s a completely crazy standard,” University of Chicago legal scholar Albert Alschuler said. “They have turned the interpretation of the Second Amendment completely upside down.”
The Supreme Court decision turbocharged a gun rights movement that had already racked up game-changing court victories over the last 15 years. If enough cases tip this way, states’ abilities to pass significant reform legislation could be squelched in the coming years — a potentially dramatic blow to a reform movement that has relied on statehouses to push forward measures sure to die on arrival in a deadlocked Congress.
“All these things are being litigated like mad,” Alschuler said. “The court will have to take another Second Amendment case very soon.”
From Heller To Bruen
The Supreme Court’s transformation of the Second Amendment began 15 years ago, with Justice Antonin Scalia’s opinion in Heller v. District of Columbia, which overturned Washington, D.C.’s ban on handguns in the home.
In a major legal shift, the ruling extended the right to bear arms beyond the “militia” participants named specifically by the Second Amendment to private citizens keeping guns in their homes for self-defense. It was the first time the court recognized the constitutional right for individuals to own firearms. Two years later, the court ruled in a separate case that Second Amendment rights could be used to challenge not just federal laws, but state and local laws as well.
Those decisions allowed opponents to wage new battles against longstanding gun laws. When District Judge Roger Benitez overturned California’s 34-year-old assault weapons ban two years ago, he pointed to Heller, saying that under the decision, “it is obvious that the California assault weapon ban is unconstitutional.”
Because the Heller ruling applied to guns in common use, the sheer volume of semi-automatic rifles in America protects them under the Second Amendment, according to Mark Oliva, a spokesperson for the National Shooting Sports Federation.
“There are currently 24.4 million of these rifles in circulation today,” Oliva said. “To put that into context for you, there are more of these rifles in circulation today than there are F-150s on the road.”
“It’s a completely crazy standard. They have turned the interpretation of the Second Amendment completely upside down.”
– University of Chicago legal scholar Albert Alschuler
What the Heller decision didn’t do was lay out a process for courts to judge laws in conflict with the newly recognized individual right to firearm ownership.
When lower courts took up post-Heller gun cases, they largely adopted the same two-part test used in First Amendment free speech cases. First, judges would look to see if the law in question directly burdened the Second Amendment right to firearms. If it did, they would then apply “strict scrutiny” to determine if the law upheld a compelling government interest, like public safety.
Benitez’s overturning of the California assault weapons ban was unusual at the time for largely casting aside the state’s public safety concerns when weighing the law’s constitutionality. But by the time the 9th U.S. Circuit Court of Appeals was ready to consider the case, the Bruen decision had changed the standard for judging the constitutionality of state laws under the Second Amendment.
The appeals court had little choice but to send the case back to Benitez. Since the Bruen decision kept the first part of the constitutionality test that lower courts had been using, Benitez’s ruling isn’t likely to change. But, because Bruen also replaced the second, “strict scrutiny” part of that test with a new history-based test, decisions will be more likely to look like the one Benitez wrote.
The application of strict scrutiny allowed state governments to claim that gun laws served an important safety interest. This allowed some laws to remain standing despite Heller’s assertion of an individual right to own firearms.
The new historical test, however, provides sweeping power to judges to interpret history as they see fit to strike down gun laws they oppose.
“The revolution has been going on at least since Heller,” Alschuler said. “But it took an enormous step with this Bruen decision.”
Bruen’s new historical test promotes what Pepperdine Caruso Law School professor Jacob Charles calls “CTRL-F history” or “cursory keyword searching to wring easy answers from complex historical sources.”
Governments defending gun restrictions must “identify a well-established and representative historical analogue, not a historical twin,” Thomas wrote in Bruen.
According to Thomas, such analogues should come from either America’s founding period when the Second Amendment was enacted or the period before 1868 when the 14th Amendment was enacted, although he never says which period is more important.
These analogous laws must also meet the definition of a “tradition,” so there must be an unspecified number of them — at least more than one — that lasted for an unspecified amount of time in U.S. history. In Thomas’ view, this also means that analogous laws enacted by U.S. territories prior to statehood “deserve little weight” because of their “transitory nature.”
It is then the judge’s responsibility to decide what the bounds of these unspecified historical rules are when a gun law comes before them. The application has been unsurprisingly chaotic.
In Antonyuk v. Bruen, a judge in the Northern District of New York hearing a case on place-based restrictions on concealed carry said that New York needed to provide three analogous laws enacted by states in order to prove a gun restriction was a tradition.
But in the Western District of New York, another judge hearing a similar case said the four state laws and two territorial laws the state government offered as historical analogues were “outliers” that didn’t “show endurance over time.” In any case, the Western District judge wrote, these laws were enacted in the late 19th century, well after the adoption of the Second Amendment in 1791.
Down in the Western District of Texas, yet another judge ruled that a “historical record” covering laws from “20 jurisdictions” enacted from 1856 to 1892 did not represent a “tradition” that would allow banning people under 21 from publicly carrying handguns. Again, in the judge’s view, these historical laws did not count because they did not come from America’s founding period, although some laws predated the enactment of the 14th Amendment.
And if there are no historical analogues because 18th- and 19th-century Americans did not consider something a problem at the time, state governments are just out of luck.
“It’s just made everybody afraid who wants to pass common sense gun violence prevention legislation.”
– Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence
This issue was perhaps most egregiously demonstrated this month in the 5th U.S. Circuit Court of Appeals decision in Rahimi v. United States when three Donald Trump-appointed judges struck down a federal law barring people subject to a protective order from possessing firearms.
The plaintiff in that case, Zackey Rahimi, was accused of shooting guns in public five times in a single month — once at a house, twice at cars, once at a constable and once into the air outside a Whataburger.
All of those shootings occurred while Rahimi was under a protective order for allegedly assaulting his girlfriend. When a federal grand jury indicted him for possessing a rifle and a handgun while under the order, Rahimi contended that the Second Amendment still protected his right to possess the guns.
“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” U.S. District Judge Cory Wilson wrote, noting it was instead necessary to determine whether enough states in the founding generation considered something a laudable policy goal and had therefore established a legal tradition around it. Wison called restricting gun ownership for people subject to domestic violence orders an “outlier that our ancestors would never have accepted.”
Domestic violence was not considered a crime in any U.S. state until 1871 – after the time period that laws must now originate from to be considered a part of the country’s historical tradition, according to the Supreme Court.
“This wholesale departure from any sort of firearm regulation is not what the Supreme Court called for,” said Esther Sanchez-Gomez, the litigation director for the Giffords Law Center to Prevent Gun Violence. “They did a really bad job of explaining to lower courts how they have to apply the new terms, which are completely unprecedented in American jurisprudence.”
Left In The Legislative Lurch
Eight more states have laws similar to California’s assault weapons ban that could be affected if the Supreme Court ultimately weighs in.
The expectation that these laws may be doomed is already complicating the politics of passing new ones like them.
In New Mexico, Democratic Gov. Michelle Luján Grisham has repeatedly urged the legislature to send her an assault weapons ban to sign this session, but lawmakers tabled the effort — partly over concerns that it wouldn’t withstand scrutiny in federal court.
“There’s absolutely no point to passing new laws which federal courts will strike down and which are clearly going to be deemed unconstitutional,” state Sen. Joseph Cervantes, a Democrat, tweeted last month.
With those lawsuits still playing out, the future of gun policy remains in flux. But that legal panorama makes it hard to imagine clear lanes for reform in the near future.
“We’re in a very difficult spot with that Bruen ruling,” said Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence. “Even though it was only about concealed carry, it’s just made everybody afraid who wants to pass common sense gun violence prevention legislation.”
“The Supreme Court is completely out of whack with where Americans are on this issue,” said Noah Lumbantobing, communications director for the youth-led group March For Our Lives. “Poll after poll shows support for reasonable restrictions.”
Even Trump-era gun restrictions aren’t safe. In January, the 5th U.S. Circuit Court of Appeals overturned a ban on “bump stocks,” attachments that make it possible to shoot semi-automatic rifles at a speed approximating fully automatic weapons.
That case doesn’t raise Second Amendment issues. Instead, the lawsuit argues that the Bureau of Alcohol, Tobacco, Firearms and Explosives ran afoul of the Administrative Procedure Act when it reclassified bump stocks as “machine guns” after an assailant used them in 2017 to kill 60 people and injure more than 400 others during a 10-minute shooting spree in Las Vegas.
But the case highlights the challenges that the White House will continue to face when trying to use its agencies to issue firearm restrictions — a common way to skirt political obstruction in Congress.
Gun rights groups have filed similar lawsuits challenging ATF regulations cracking down on “ghost guns.”
Paradoxically, the only hope for some of these gun laws to survive is the Supreme Court itself.
It’s possible that some of the Supreme Court’s justices — consumed at the time by overturning of the federal right to abortion — did not fully appreciate the broad sweep and lower court chaos the Bruen ruling would create, Alschuler said. When they take up the issue again, they may find a way to rein in the expansive ruling.
“I would be surprised if they explicitly backed off, but judges have changed their minds before,” Alschuler said. “You just scratch your head and say, ‘I guess they’re going to limit this decision by fiat,’ but you don’t know quite how they’re going to do it.”
Justice Brett Kavanaugh tacked a three-page concurring opinion onto Bruen, cautioning that he understood the ruling to apply narrowly to New York’s concealed carry laws.
“Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations,” Kavanaugh wrote. His opinion, joined by Chief Justice John Roberts, cited as examples laws barring felons and the mentally ill from carrying guns, and laws prohibiting firearms in sensitive places and government buildings.
Lower court judges have now overturned some of the regulations Kavanaugh specifically named ― most notably the one barring felons from possessing firearms. With the three liberal justices, there appear to be five votes to uphold at least some of the laws being struck down the next time the Supreme Court takes a Second Amendment case.
This one ray of hope for gun reformers underscores what Bruen has really done. It has shifted power over gun regulation from elected legislatures and governors to the judiciary. This is part of a pattern; the conservative court’s recent decisions have done one thing, according to Stanford Law School professor Mark Lemley — “concentrate power in one place: the Supreme Court.”
In the meantime, reformers say they’ll keep pressing for more aggressive gun restrictions at the state level, even as daunting legal challenges play out.
“A conservative court might steamroll over these common-sense measures, but we’re still going to pass them and we’re still going to defend them,” Lumbantobing said. “We know that we’re right and we know that the American people agree with us.”