The U.S. Supreme Court’s ruling to strike down a portion of New York State’s century-old firearm licensing law explicitly endorsed an individual right to carry a loaded handgun in public for self-defense, immediately imperiling restrictive public carry regulations in at least six states.
But constitutional law experts interviewed by The Trace say New York State Rifle and Pistol Association v. Bruen’s most significant effect on the nation’s gun laws will emerge more slowly.
That’s because the Supreme Court’s majority opinion directed lower federal courts to use a new methodology to determine whether gun laws violate the Second Amendment. The new test differs dramatically from the one most lower courts had been using, and the nature of the test will make it harder for states to defend their firearms restrictions. The change in the standard of review is likely to open the door to a massive reevaluation of gun restrictions in the United States, experts said.
“The law is now unsettled,” said Frederick Vars, a professor at the University of Alabama School of Law. “It is going to be a lot harder to justify approaches to gun regulation that are new.”
Already, courts are asking parties in ongoing lawsuits to adjust their arguments. On June 30, the Supreme Court sent cases challenging Maryland’s assault weapons ban and New Jersey and California’s bans on magazines holding 10 rounds or more back down to lower courts to reconsider in light of Bruen.
Relative to other areas of constitutional law, the Supreme Court hasn’t said all that much about the Second Amendment. Before 2008, no federal appellate court had struck down a law because it was violating the Second Amendment, largely because the federal courts had interpreted the amendment to cover a collective right related to service in state militias.
It wasn’t until 2008 in District of Columbia v. Heller that the Supreme Court read the Second Amendment to guarantee an individual right to have firearms in the home for self-defense. And it wasn’t until 2010, in McDonald v. City of Chicago, that the Supreme Court said the Second Amendment’s protection applied to state and local governments, not just the federal government.
Since those decisions, there have been an increasing number of challenges to state gun restrictions. The district and appellate courts created and coalesced around a standard for consistently deciding those cases, fashioned from the Heller and McDonald opinions.
That test had two parts. First, courts looked back through history and tradition to decide whether the regulation impinged on the individual right protected by the Second Amendment. For example, judges could decide that a weapon was “dangerous and unusual” and thus unprotected. If the regulation did not impinge on the individual right, it was presumed constitutional.
If the right was affected, courts moved onto the second element: means-end scrutiny. Judges evaluated whether the regulation furthered an important government interest, like preventing gun violence, and whether the regulation was tailored to achieve it, justifying the measure.
The design of that test meant that courts could look back at the history of gun regulations while also considering modern-day factors and evidence like research and technological developments.
Some cases, like Kolbe v. Hogan challenging Maryland’s assault weapons ban, didn’t get past the first part of the test. In that case, the 4th Circuit Court of Appeals in 2017 found that large-capacity magazines and assault weapons including AR-15-style rifles were dangerous and unusual and thus not protected by the Second Amendment under Heller, so it upheld the law. In another 2011 case challenging the District of Columbia’s ban on semiautomatic rifles and large-capacity magazines, the D.C. Circuit Court of Appeals declined to assess whether the weapons were protected by the Second Amendment. The restrictions, the court held, were constitutional because they would survive intermediate scrutiny even if the weapons and magazines were protected by the Second Amendment. (Notably, then-Circuit Court Judge Brett Kavanaugh dissented, arguing that the district’s assault weapons ban was unconstitutional under his reading of the Supreme Court’s 2008 decision in Heller.)
In the years since Heller, about 90 percent of gun regulations that faced challenges have been upheld, often using that two-part test, according to a 2018 analysis that examined more than a thousand court cases.
“Gun rights activists and advocates were very unhappy with that outcome,” said Eric Ruben, an assistant professor of law at Southern Methodist University’s Dedman School of Law, who co-authored the analysis. “And once those challenges failed, in the federal courts at the circuit level, that set precedent and doomed future challenges within those courts over the same laws.”
The Supreme Court’s majority opinion in Bruen rejected the two-part test. Justice Clarence Thomas wrote that it included “one step too many.”
Now, when governments face a lawsuit over a gun restriction, they need to show that the restriction doesn’t violate the text of the Second Amendment and that it has an analog that is well-established in American history. The analog doesn’t have to be a “historical twin,” Thomas wrote, but it does need to have served a similar purpose. The regulation must also place similar burdens on individual rights. In other words, the regulations should be compared based on how and why they burden a law-abiding citizen’s right to armed self-defense. If there is no historical analog, the regulation is presumptively unconstitutional.
“Looking solely to history, or historical analogs, is an unusual way to do constitutional law,” Ruben said. “History always matters to judges and justices, but it’s just one factor. It’s ordinarily not conclusive. Now you’re looking for a law from a time before modern-day gun violence even arose.”
Not only must a modern gun restriction have a historical analog, the time period matters. The relevant period, the majority seemed to suggest, is from about 1791 — when the Second Amendment was ratified — to about 1868 — when the 14th Amendment, which the Supreme Court has interpreted to apply the Bill of Rights to the states, was ratified.
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Even then, the analogs need to be well-established — the existence of a regulation in history can be ignored if the regulation wasn’t adopted by enough states. The majority discarded several examples of state laws from the 1800s that New York and its supporters presented in the case, saying they were outliers.
“The problem presented by the majority opinion in Bruen is this kind of parsing of the history, saying, ‘This history is remarkable; this history is irrelevant. This history is important; this history is not,’” said Darrell Miller, a professor at Duke University School of Law. The test, according to the legal experts, potentially empowers lower court judges who are not historians to select cases from a vast historical record.
“Text history and tradition is just a camouflage for the justices’ current values,” said Eric Segall, a professor of constitutional law at Georgia State University College of Law. “And that’s true for both sides. It’s not a partisan statement.”
Experts say the Supreme Court’s new test for gun cases is structurally more favorable to gun-rights arguments and could lead to a wave of lawsuits over firearms regulations once thought to be settled.
“It’s possible that anything gets challenged,” said Alexander McCourt, an assistant professor at Johns Hopkins University’s Bloomberg School of Public Health. “It’s been rare since Heller for state gun laws to be overturned on Second Amendment grounds, and I suspect it will become less rare.”
Though the five experts interviewed for this story largely agreed that the court’s majority opinion was clear that the new test should be used for all Second Amendment cases, Miller noted that concurring opinions by conservative Justice Samuel Alito and Chief Justice John Roberts and Brett Kavanaugh were more ambiguous about what cases the new test should apply to. That is likely to be subject to dispute in lower courts. The exact time period lower courts should look to is also likely to fluctuate; Justice Amy Coney Barrett noted that the majority opinion was less than clear about how much weight to give 19th-century history around the time of the ratification of the 14th Amendment.
Regardless, many modern firearms regulations came about in the 20th century, a period that the Supreme Court now says is irrelevant to the history and tradition test. New York’s licensing law, and the “proper cause” requirement at the center of Bruen, dates to 1911 and was older than many of today’s firearm regulations.
“That is an approach that deems irrelevant modern day gun violence and modern day innovations,” Ruben said.
People convicted of violent felonies were not prohibited from purchasing or possessing guns under federal law until 1934. It wasn’t until the 1968 Gun Control Act when that prohibition was extended to all felonies and to people with a history of drug abuse or mental illness. Background checks were not mandated by federal law until 1994, and the National Instant Criminal Background Check System didn’t start until 1998. States didn’t begin criminalizing domestic violence until the 1900s, and federal law didn’t prohibit people convicted of domestic violence misdemeanor offenses from getting a firearm until 1996.
Even though those laws are new, that doesn’t necessarily mean they are in immediate danger: Judges could find them to be similar enough to older restrictions on people who broke the law or were considered dangerous.
“It’s going to end up being levels of generality,” Miller said. “It’ll be, ‘Here’s some regulations on guns in the hands of people that the founding era or thereabouts thought were dangerous. And we find that this is a regulation on guns in the hands of dangerous people, and therefore, the prohibition will stand.’”
How exactly that will play out remains to be seen. While core regulations like bans on violent felons owning guns could survive, parts could fall. For example, Barrett, while serving as a circuit judge on a federal appellate court in Chicago, wrote a dissent in 2019 arguing that prohibitions on people convicted of nonviolent felonies owning guns were unconstitutional.
“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,” she wrote.
Other laws — like state assault weapons bans, prohibitions on high-capacity magazines, red flag laws, ghost gun prohibitions, age limits, and some background check requirements — are more likely to face serious challenges because they are new ideas that place limits on the ability of people who haven’t broken the law to exercise their gun rights. These regulations could be rolled back or overturned in some form or fashion.
Bans on assault-style weapons and semiautomatic rifles could be in most serious danger. At least one justice, Kavanaugh, previously wrote dissenting opinions as an appellate judge arguing that such bans are unconstitutional. While the majority reiterated in Bruen that the Second Amendment does have limits, like other rights, the limit is now less clear. The court previously found that history supported prohibitions on the carrying of “dangerous and unusual weapons.” But it also held that the Second Amendment protects weapons that are “in common use at the time.” While states will argue that assault weapons are dangerous and unusual, AR-15-style rifles, which many state laws consider assault weapons, are among the best-selling guns in America.
Meanwhile, gun rights groups are promising new lawsuits. Gun Owners of America is already claiming that portions of the Bipartisan Safer Communities Act, the first federal gun reform bill in nearly 30 years, are unconstitutional under Bruen. The Firearms Policy Coalition has also asked an appellate court to reinstate a lower court’s ruling that struck down California’s assault weapons ban. Other lower courts are already requesting new briefs in light of Bruen, for example, in the case of California’s ban on purchasing more than one gun in a 30-day period.
