THE STATE OF SECOND AMENDMENT JURISPRUDENCE AND A POST-BRUEN GUN POLICY FOR THE FUTURE
Author: Bryan Bond, Senior Editor
Since the Supreme Court’s NYSRPA v. Bruen ruling in June, federal courts have been striking down a great number of gun regulations as violative of the Second Amendment of the Constitution.[i] The ferocity with which courts have been willing to render these laws inert results from two important Bruen revelations. First, the interest balancing approach that federal circuits were engaging in is now, at least on paper, dead. Justice Thomas’ holding in Bruen made clear that no interest balancing is to take place when applying Heller’s History, Text and Tradition analysis.[ii] Second, Justice Thomas made clear in Bruen that a mere handful of states with a history or tradition of enforcing an analogous law is not enough to survive a constitutional challenge. Conversely, the Bruen opinion explicitly shows that to survive a constitutional challenge, the state must point to a historically analogous law which a plurality of states maintained some semblance of.[iii] Either of these two factors on their own would present a significant obstacle for states looking to history to justify the regulation they are meaning to enforce, but both the factors together have made the History, Text and Tradition analysis an especially potent legal device for striking down gun regulations.
The History, Text and Tradition analysis found its inception in District of Columbia v. Heller.[iv] Is in his majority opinion, Justice Scalia argued that a D.C. ordnance mandating disassembly of stored firearms within the home was unconstitutional because Anglo-American history and tradition showed there was an individual right to possess a firearm.[v] However, in the wake of the decision, federal circuits would often invoke interest balancing to determine the constitutionality of a gun law.[vi] In essence, the lower federal courts would ask whether the law regulated behavior covered by the scope of the Second Amendment.[vii] If it did not, then the analysis would end, and the law would stand.[viii] If it did however, the analysis would question how closely the law regulated a “core” component of the conduct protected by the Second Amendment.[ix] If core conduct was implicated, the lower courts would employ a strict scrutiny analysis.[x] If the conduct was not core to the Second Amendment, the regulation would be analyzed under intermediate scrutiny.[xi]
In his majority opinion in Bruen, Justice Thomas clarified that this approach had always been incorrect, and that the correct approach instead stuck to the essential formula of the opinion written by Justice Scalia in Heller. To that end, Thomas clarified that the proper analysis requires first deciding whether the law contravenes the plain text of the Second Amendment.[xii] If it does not, it is presumptively constitutional.[xiii] If it does, then to further ascertain whether the law is constitutional, the court must examine Anglo-American history for a properly analogous law which shows a tradition of such a regulation being permissible under the Second Amendment.[xiv]
In Bruen, Thomas makes clear that courts should give greatest deference to laws which existed close to ratification of the Constitution or the ratification of the 14th Amendment, when the Bill of Rights was incorporated against the states.[xv] Thomas asserts there can be no permissible interest balancing under this affirmation of the History, Text and Tradition approach.[xvi] That is, the states are no longer able to cite to compelling reasons to justify their regulations (such as public safety); they can only use the plain text of the Second Amendment to show the regulated conduct is outside the scope of the right as protected. Alternatively, that there is an accepted history and tradition of such a regulation or a properly analogous law, by a plurality of states, most importantly around the times of ratification of either the Constitution itself, or the 14th Amendment thereof.[xvii]
Further, in Bruen, Justice Thomas expressly disclaimed the three examples of state laws that New York drew from the country’s history to justify its near total ban on carrying handguns for self-defense.[xviii] The reasonable inference to be drawn is that a simple handful of states with an analogous law is not enough to find the law constitutional, as this would presumably only satisfy the history prong of the test. Instead, the law must also have a real tradition in the country, with a hefty plurality of states enforcing something similar or analogous for some time.[xix] In short, the state law must comply with the plain text of the Second Amendment, or it must satisfy both the history and the tradition prongs to be found constitutional.
So far, the results post-Bruen have been entirely expected, given the pronounced hurdles the History, Text and Tradition test present for state attorneys. Very quickly after the Bruen decision was released, states with “good cause” requirements for carrying concealed handguns outside the home abandoned them as violative of the Second Amendment.[xx] While nominally becoming shall issue jurisdictions for concealed carry in the wake of Bruen, states like New York and New Jersey amended their laws to affect a slew of novel or exaggerated requirements for concealed carry permits. New York also assigned a litany of so-called “sensitive places,” where carrying a concealed weapon would be expressly prohibited.[xxi] For example, New York state legislature passed regulations which would bar carrying of concealed weapons in seventeen or more distinct types of locations, including the subway and the entirety of Times Square.[xxii] When asked where it would be legal to carry a gun after the state’s list of sensitive places was revealed, New York Governor Hochul suggested, “probably some streets.”[xxiii] New York state would likewise require four separate character references and a disclosure of social media accounts to law enforcement for investigation, before any permit would be issued.[xxiv] On the other hand, New Jersey legislators are planning to pass a law which would mandate liability insurance for anyone carrying a concealed weapon.[xxv]
The constitutional challenges came quickly after New York and New Jersey made their goals known. On October 6th, a federal judge in New York granted in part a temporary restraining order for the Gun Owners of America, who sued the state attorney general for enforcing the ban on carrying guns in its large list of sensitive locations.[xxvi] Specifically, the court granted the TRO against enforcing the bans on public transportation, daycares, doctor’s offices, “amusement” or “entertainment” places where alcohol is served and Times Square, but upheld the bans in government buildings, public assemblies, schools and places of worship.[xxvii] A separate lawsuit was then filed to specifically attack the constitutionality of the ban on guns in places of worship, and this law was likewise temporarily enjoined from enforcement by a New York federal judge.[xxviii] Several other states have also seen their laws struck down for non-compliance with the Constitution in the wake of the Bruen decision. A West Virginia federal judge held unconstitutional a portion of a federal law requiring the serialization of firearms.[xxix] A federal judge in Texas tossed out a law which prohibited individuals under indictment from possessing firearms.[xxx] Just a month or so before, a different Texas judge held that a law barring individual under 21 from carrying handguns was unconstitutional.[xxxi]
For decades, states have relied on laws requiring serialization of firearms, or those barring individuals under indictment from possessing guns. With portions of such laws now being deemed unconstitutional, are there any which might be considered “common sense” that could survive? Perhaps this is the wrong way of understanding the current legal landscape. Indeed, Justice Thomas plainly acknowledged that the Second Amendment cannot be a “second-class right” in his Bruen opinion.[xxxii] He further contended that no other right in the Constitution has been subject to the treatment the Second Amendment has by federal courts.[xxxiii] It would certainly seem “common sense” to an ordinary American that someone should not be allowed to publish materials on how to make bombs to the general public. Yet, dissemination of this type of information is protected by the First Amendment.[xxxiv] If the media constantly ran stories about criminal defendants who invoked their Sixth Amendment right to counsel and obtained acquittals, only to reoffend and murder someone after, half the country might think it was “common sense” to burden the right to counsel too.
This isn’t to poke rhetorical holes in the logic of gun control proponents, but rather show the uniqueness with which the American public has perceived the right to keep and bear arms relative to all the other liberties contained in the Bill of Rights. That is to say that the public, and by extension, many legal professionals including judges and attorneys, have allowed the transient tragedies of contemporary times to erode the deference they give to the Second Amendment as a constitutional right, and subsequently, the understanding they must possess to pursue gun policy which is ultimately congruent with the demands of the Constitution. If states continue to pass laws which flagrantly endeavor to control the keeping or bearing of arms in contravention of the plain text of the Second Amendment without a clearly established tradition of analogous regulation, the results will be the same as shown above: federal judges, even ones in liberal jurisdictions like New York, will strike down the laws as violative of the Second Amendment.
So, then what kind of laws would be constitutional under Bruen? This is a difficult question to answer, not just because of how recent the Bruen decision is, but because some courts have already struck down laws which would seem to survive constitutional muster by default.[xxxv] However, even that case lends instructional guidance. In United States v. Price, Judge Goodwin claimed that the federal law requiring serialization of firearms was unconstitutional not merely because it required firearms to be serialized by manufacturers, but because it also criminalized possession of un-serialized firearms. Possession of course is implied by the plain text of the Second Amendment.[xxxvi]
If the government were to amend the law so that it merely established a requirement of manufacturers to serialize firearms, without proscribing punishment for possession of a firearm without serialization by a private citizen, the law might remain constitutional. If this logic were accepted by the Supreme Court of the United States, something like an assault weapon ban might be constitutional, provided it only banned the sale of these weapons without barring their possession. The same might apply to laws regulating the size of magazines in firearms. Only time will tell if this analysis bears fruit, but Price will undoubtedly be read by state attorneys who may see fit to employ the argument to uphold the constitutionality of their own local gun regulations. However, it now seems clear that regulations which blanket ban the possession or carry of firearms without strong historical analogs will no longer pass constitutional muster.[xxxvii]
States endeavoring to affect gun policy within the bounds of the Constitution should transition away from the relatively recent tradition of drafting laws mandating blanket prohibitions on weapon types. They should likewise distance themselves from the prophylactic character and fitness requirements recently employed by states like New York, which really function passed as a political response to the Court’s Bruen decision, and instead pursue laws which have a 1:1 impact on gun violence. In essence, the suggestion is to stop treating guns like a cultural and political issue, and instead treat them as a public safety issue.
Narrowing the issue to focus strictly on gun violence is the proper scope of the country’s immediate gun policy post-Bruen. For one, the problem is extremely manageable. The bulk of gun deaths in the country are suicides, leaving around 15,000-20,000 every year as actual homicides.[xxxviii] In a country of 330 million people, over 100 million gun owners, and around 400 million total guns, 15,000-20,000 homicides is infinitesimal when contextualized. The functional question necessary to implement this policy is simple: how do states reduce the practical accessibility (as opposed to legal accessibility) of guns to bad actors while complying with the Constitution?
State attorneys and legislators can do two things to help answer this question. First, imagine all the scenarios where firearms become available to those who should not have them. This is an easy thing to do because it only requires reading or watching the news. For example, children find unsecured firearms in the home. Likewise, criminals don’t buy their guns from a store; they steal them from parked cars.[xxxix] So, it matters less what a law-abiding citizen is permitted to possess, and more the use of a proper means of storage to prevent possession by an unauthorized person.
As a counterexample, states should not criminalize the mere possession of magazines with more than 10 rounds of ammunition. In an age where ammunition in firearms can be swapped out in two seconds, the number of bullets a lawful citizen is permitted to have in their firearms not only does nothing to affect whether a bad actor follows the same law, but at best, does nothing to keep that criminal from reloading his gun just as fast during the commission of a crime. In short, it has no practical effect on a criminal’s access to firearms. Beyond which, it is likely to attract strong constitutional challenges in light of Bruen.
What is the real practical difference between shooting and reloading three 10-round magazines in a total of ten seconds and shooting one 30-round magazine in a total of seven seconds? Three seconds, of course, but the point is that policymakers spend far too much time dealing with the dubiously useful minutiae of horrific nightmare scenarios like mass shootings and how long it takes a bad actor to reload than they do the mundane depravity of the far more common convenience store robbery or casual drug deal gone bad. In the latter scenarios, reloading probably doesn’t matter at all, because all the violence happens within seconds and the shooter is gone before the smoke clears and the bodies are cold.
The second solution to the problem is to look at what other countries are doing. By that, the suggestion is not that policymakers should look at some Nordic country with the same population as the state of Delaware and the landmass equivalent to that of Ohio, where no one ever really owned guns in large numbers, all to say that blanket prohibitions work. Rather, we must look at the nations which have at least comparable gun ownership rates per capita as a starting point and then examine their respective figures for homicides committed with a firearm. The Czech Republic is a solid example. They not only have gun ownership baked into their constitution just like America, but they have a very high gun ownership rate per capita.[xl] Yet, the Czech Republic hovered around 200 gun deaths a year for three decades.[xli] That means that the Czech Republic’s gun murder rate is about 18 for every 1 million residents.[xlii] A part of it is certainly their low population, but the nation takes novel approaches that the United States should also consider.
First, storing guns in cars is strongly discouraged as a public policy matter. The Czech Republic, like America, certainly has sensitive places where guns are not permitted, such as courthouses. However, unlike America, the Czech Republic permits people to bring guns into these places for the exclusive purpose of storing them.[xliii] The authorities which control the security of these locations provide secure lockers or deposit boxes whereby armed citizens can keep their weapons until they leave the premises. This keeps the weapons out of their cars where criminals who would otherwise have easy access to an unattended firearm could obtain it.
Further, America has a uniquely unwalkable urban sprawl.[xliv] America is built around the automobile. The average American would be shocked to learn just how walkable the Czech Republic’s cities are.[xlv] The importance of this cannot be overstated. It means that the locations where criminals, at least in America, would be most likely to trespass in order to steal a firearm are more scarce than they would be here. Between safe storage in sensitive areas and fewer overall cars, criminals in the Czech Republic have far fewer opportunities to illicitly obtain firearms. In short, their practical accessibility to firearms is more limited.
This point gestures toward a fact that a country possessed by the cultural battle for guns cannot understand: even public transit policy is gun policy, because public transit policy is also public safety policy. If the cities in America plagued by gun violence want to meaningfully affect their gun violence statistics, they can do it by creating safe public transit and reducing their reliance on the automobile. More to the point, they can implement safe public transit without abridging the Second Amendment, or by wading into a culture war that does nothing but sew division between value diverse people looking for every excuse to spite each other with reciprocal political reprisals at every win or loss.
If states want to pass gun regulations directly, by now they must realize that the legal landscape has changed post-Bruen. Going forward, states have two options: continue to pass laws which will almost certainly be struck down for lack of history and tradition or analogous law in a plurality of states, (like wholesale bans on common use weapons, blanket prohibits on carrying weapons in areas commonly accessible to the public, etc.), or use novel means of addressing specific gun policy issues.
The Czech Republic serves as an example for good faith policy makers who can help assuage America’s gun violence problem by addressing its drought of modern mass public transit as an inroad to further bipartisan efforts. It likewise serves an as example for states like New York, clearly concerned with guns in sensitive places, to model storage regulations. Expanding the means for citizens to store weapons before entering secure areas of sensitive locations like courthouses or other government buildings, allows them to deny access to weapons which might otherwise be vulnerable to theft and subsequent use in violent crimes.
[i] See John Kruzel, Gun control laws fall at dizzying pace after Supreme Court ruling, The Hill (Oct. 10, 2022, 6:00 AM), https://thehill.com/regulation/court-battles/3696299-gun-control-laws-fall-at-dizzying-pace-after-supreme-court-ruling/.
[ii] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2118 (2022).
[iii] See id. at 29-30.
[iv] See District of Columbia v. Heller, 554 U.S. 570 (2008).
[v] Id. at 576.
[vi] Bruen, 142 S. Ct. at 2118.
[vii] Id. at 2126-27.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129-30 (2022).
[xiii] Id.
[xiv] Id.
[xv] Id. at 2138.
[xvi] Id. at 2129-30.
[xvii] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022).
[xviii] Id. at 2142, 2144.
[xix] See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2142, 2144 (2022).
[xx] See Larry Keane, States Move Quickly to Change Concealed Carry Restrictions, NSSF (July 6, 2022), https://www.nssf.org/articles/states-move-quickly-to-change-concealed-carry-restrictions/.
[xxi] Jacob Sullum, New Jersey joins New York in Defying the SCOTUS Decision Upholding the Right to Bear Arms, Reason (Oct. 19, 2022, 12:01 AM), https://reason.com/2022/10/19/new-jersey-joins-new-york-in-defying-the-scotus-decision-upholding-the-right-to-bear-arms/.
[xxii] Location Restrictions in New York, Giffords L. Ctr. Prevent Gun Violence, https://giffords.org/lawcenter/state-laws/location-restrictions-in-new-york/#:~:text=It%20is%20a%20criminal%20offense,chemical%20dependence%20care%20or%20services%3B%E2%80%9D (last visited Sept. 6, 2020).
[xxiii] Jon Campbell, In Response to Supreme Court, NY gun ban poised to cover subways, day care facilities among others, Gothamist (June 29, 2022), https://gothamist.com/news/supreme-court-new-york-guns-hochul-.
[xxiv] Associated Press, Gun Applicants in New York will have to submit their social accounts for review, NPR (July 8, 2022, 11:29 AM), https://www.npr.org/2022/07/08/1110477445/gun-applicants-social-media-accounts-new-york.
[xxv] Tracey Tully, Hoping to Carry a Gun in New Jersey? You Might Need Insurance First., New York Times (Oct. 13, 2022), https://www.nytimes.com/2022/10/13/nyregion/nj-gun-laws-insurance.html.
[xxvi] Jonathan Allen, U.S. Judge temporarily blocks parts of New York’s new gun law, Reuters (Oct. 6, 2022, 3:56 PM), https://www.reuters.com/legal/us-judge-temporarily-blocks-much-new-yorks-new-gun-law-2022-10-06/.
[xxvii] See Antonyuk v. Hochul, 2022 U.S. Dist. LEXIS 182965 (N.Y. N. Dist. Ct. 2022).
[xxviii] Away v. Nigrelli, 2022 U.S. Dist. LEXIS 191998, at 44 (N.Y. W. Dist. Ct. 2022).
[xxix] United States v. Price, 2022 U.S. Dist. LEXIS 186571 (W.V. S. Dist. Ct. 2022).
[xxx] Associated Press, Judge holds gun ban for felony defendants unconstitutional, AP (Sept. 19, 2022), https://apnews.com/article/us-supreme-court-texas-donald-trump-gun-politics-indictments-8f33eb6f21597e6ee63272aa64d32520.
[xxxi] Derek Hawkins, Texas can’t bar adults under 21 from carrying handguns, federal judge rules, The Washington Post (Aug. 26, 2022 12:08 PM), https://www.washingtonpost.com/nation/2022/08/26/texas-handgun-young-adults-judge/.
[xxxii] Bruen, 142 S. Ct. at 2155.
[xxxiii] Id.
[xxxiv] See Brandenburg v. Ohio, 395 U.S. 444 (1969); see also Virginia v. Black, 538 U.S. 343 (2003).
[xxxv] See United States v. Price, 2022 U.S. Dist. LEXIS 186571 (W.V. S. Dist. Ct. 2022).
[xxxvi] Price, 2022 U.S. Dist. LEXIS 186571, at 5.
[xxxvii] See Bruen, 142 S. Ct. 2111.
[xxxviii] Facts and Figures, UC Davis Health, https://health.ucdavis.edu/what-you-can-do/facts.html (last visited Oct. 21, 2022).
[xxxix] Megan O’Toole, et al., Gun Thefts from Cars: The Largest Source of Stolen Guns, Everytown Rsch. Pol’y (May 9. 2022), https://everytownresearch.org/gun-thefts-from-cars-the-largest-source-of-stolen-guns/.
[xl] Ondrej Plevak, Firearm ownership rights embedded into Czech constitution, Euractiv (July 23, 2021), https://www.euractiv.com/section/politics/short_news/firearm-ownership-rights-embedded-into-czech-constitution/
[xli] Philip Alpers, Irene Pavesi and Michael Picard, Czech Republic – Gun Facts, Figure and the Law, Sydney School of Public Health, The University of Sydney, https://www.gunpolicy.org/firearms/region/czech-republic (last visited Nov. 1, 2022).
[xlii] The World Bank, Population, total – Czechia, World Bank, https://data.worldbank.org/indicator/SP.POP.TOTL?locations=CZ (last visited Nov. 1, 2022).
[xliii] Zákon o střelných zbraních [Firearms Act], Trestní zákon 119/2002 § 29, 58, 79 (Czech).
[xliv] Chris Teale, US cities less walkable than international counterparts: study, Smart Cities Dive, (Oct. 15, 2020), https://www.smartcitiesdive.com/news/us-cities-less-walkable-than-international-counterparts-study/587046/#:~:text=ITDP%20found%20that%20while%20Baltimore,together%20and%20encourages%20people%20to.
[xlv] Anton Eremin, Prague Walking Accessibility, Towards Data Science (Nov. 12, 2019), https://towardsdatascience.com/prague-walking-accessibility-8c0954e83bea.