Quick Post-Bruen Update on the Constitutionality of Gun Laws

Earlier this year, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022), holding that New York could not constitutionally require residents to show a special need (beyond the general concerns about self-defense that any person might have) in order to obtain a permit to carry a handgun outside the home. I wrote a detailed summary of the case in this prior post. North Carolina doesn’t require any such showing, so the direct impact on our state was minimal.

However, Bruen’s holding arose from a new interpretive approach. The Court rejected the intermediate scrutiny test most lower tribunals had used when analyzing gun laws and replaced it with a historical analysis in which a limit on gun rights is constitutional only if it is “consistent with the Nation’s historical tradition of firearm regulation.” Lower courts have now begun to apply this framework to assess the constitutionality of various gun laws. The early returns suggest that Bruen’s impact may be substantial across a wide range of federal and state gun laws.

What follows is a collection of some notable post-Bruen opinions. Significantly, these are trial court rulings. I’m not aware of major appellate opinions interpreting Bruen yet, though several federal circuits are currently considering cases in which Bruen will be relevant. In some cases, courts have requested additional briefing focusing on the historical record. Additionally, I selected cases in which courts questioned or invalidated gun laws based on Bruen. There are, of course, also cases in which gun regulations have been upheld, but I have not attempted to collect those. With those caveats in mind, here are the case summaries:

District court strikes down 18 U.S.C. § 922(g)(8), which prohibits people subject to DVPOs from possessing guns. Last week, in United States v. Perez-Gallan, W.D. Tex. 11/10/22, a federal district court in Texas ruled that 18 U.S.C. § 922(g)(8) was unconstitutional. Applying “Bruen’s new framework,” the court looked at historical practices concerning domestic violence and gun rights. It found that in the nation’s early years, domestic violence was barely prosecuted, and even in the nineteenth century, “removing firearms from an abuser—through government intervention or otherwise—was still not a prevalent occurrence.” It rejected the Government’s analogy to other historical measures targeting dangerous people, while acknowledging that it is difficult to know how similar a historical provision must be before an analogy to a contemporary regulation is valid.

District court strikes down 18 U.S.C. § 922(k), which prohibits people from possessing guns with obliterated serial numbers. Another recent case, United States v. Price, S.D.W.V. 10/12/22, found that 18 U.S.C. § 922(k) was unconstitutional. The court noted that serial numbers on firearms did not even exist in 1791 when the Second Amendment was ratified, so a prohibition against removing them is not consistent with a historical approach to the Second Amendment. Like the Perez-Gallan court, the Price court wrestled with various potential analogies, ultimately concluding that “that the only types of analogous regulations would be those that required firearm owners to keep an identifiable mark on their firearm . . . . I am not presented with evidence that any such regulation existed, nor has my research uncovered any.”

District court strikes down 18 U.S.C. § 922(n), which prohibits people under felony indictment from possessing guns. Another post-Bruen opinion is United States v. Quiroz, W.D.Tex. 9/19/22, where the court “conduct[ed] its own historical inquiry” concerning restrictions on gun rights for persons charged with, but not yet convicted of, serious crimes. It found nothing directly comparable until the federal statute itself was enacted in 1939, and concluded that none of the analogies suggested by the Government were sufficiently comparable.

District court partly enjoins enforcement of Delaware law targeting “ghost guns.” In Rigby v. Jennings, D. Del. 9/23/22, a district court considered a Delaware law criminalizing the manufacture, possession, and sale of certain unserialized firearms, sometimes called “ghost guns.” The court found that the plaintiffs challenging the law were likely to prevail on their Second Amendment arguments concerning the portions of the law regarding manufacture and possession of unserialized guns. The court noted that the Attorney General “offered no evidence that these statutes are consistent with the nation’s history of firearm regulation.” Accordingly, it and issued a preliminary injunction against enforcement of the above-described portions of the law.

District court enjoins enforcement of New York law banning guns in certain locations. In Antonyuk v. Hochul, NDNY 10/6/22, a federal district court issued a temporary restraining order prohibiting enforcement of a New York law that sought to bar concealed carry in a number of locations, including on public transit, at public event venues, at medical facilities, in parks and playgrounds, and in Times Square. The court found inadequate historical support for these limitations, though it did find support for a smaller number of premises limitations, including schools, polling places, and places of religious worship.

What about felons? The 800-pound gorilla of federal firearm laws is 18 U.S.C. § 922(g)(1), which prohibits people with felony convictions from possessing a gun. Many commentators have wondered how that provision will fare under Bruen. Some say just fine, highlighting the language in District of Columbia v. Heller, 554 U.S. 570 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” On the other hand, that statement falls short of being a direct statement that felon-in-possession laws are fully constitutional, and in any event, the composition of the Court has changed since Heller. One new member, Justice Amy Coney Barrett, dissented in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), and wrote this:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.  But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.  Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.  In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

I’m not aware of a post-Bruen case finding fault with a felony disqualification law. But it seems inevitable that serious challenges will arise and I would not be at all surprised to see lower courts disagree about the proper analysis. Given the importance of this issue in the criminal justice system, any division in the lower courts would almost certainly cause the Supreme Court to take the case up.

Conclusion and comment. Those seeking further reading may be interested in this collection of cases at The Trace, or this analysis of early post-Bruen cases from the Duke Center for Firearms Law. For my part, I will wrap up by emphasizing that Courts are just beginning to grapple with Bruen and the historical approach that it requires. The cases collected above may be appealed and reversed – indeed, at least one has already been stayed. Or they may be affirmed and extended. New cases will surely be filed, including cases targeting additional state gun restrictions. I don’t have any confidence about how things will play out in term of results. But in terms of process, it does seem like the historical approach is going to be difficult for courts to apply effectively and consistently. Bruen may therefore keep lawyers – and historians – busy for years to come.