Late last year, I wrote about the fallout from the Supreme Court’s landmark ruling last summer in New York State Rifle and Pistol Association v. Bruen. The 6–3 ruling announced a new test for lower courts to apply when reviewing gun laws in general, one that would make it far more difficult for many types of gun laws to survive judicial scrutiny. The results have been predictable and far-reaching.
Last week, the Fifth Circuit Court of Appeals overturned a federal provision that prohibits people under restraining orders for domestic violence from possessing firearms. The following day, a federal district court in Oklahoma struck down a similar provision that applied to people who unlawfully use or are addicted to a controlled substance. The Third Circuit Court of Appeals parted ways with the other courts when it came to the provision’s application to people convicted of felonies. But even that decision may not be long for this world.
At issue in Bruen was New York’s requirement that gun-license applicants show “proper cause” that they needed one, a malleable standard that allowed local officials to approve or deny licenses almost on a whim. Also lurking beneath the surface was the simmering frustration of some of the conservative justices over lower court rulings that had left most gun-control laws intact. Even after the high court had found an individual right to bear arms in the Second Amendment in D.C. v. Heller a decade earlier, Justice Clarence Thomas and others repeatedly argued, lower courts were still treating it as a “second-class right.”
With a firm six-justice majority at hand, the conservatives used Bruen to reverse the trend and announce a new test for lower courts to use. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Thomas wrote for the court. “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
This new history-and-tradition test is not without its critics from both the left and the right. (We’ll come back to that later.) As I noted in November, it leads to strange and even disturbing outcomes by forcing judges to operate under moral paradigms and legal strictures that are no longer applicable in modern society. The test is also, ironically enough, fairly malleable: How does one determine whether a law in 2023 is “consistent” with laws passed under vastly different circumstances in the 1780s or 1860s?
The Fifth Circuit’s ruling in United States v. Nahimi, which restored the right to own a gun to people with domestic violence restraining orders, underscored the problems raised by the history-and-tradition test. Local police in Texas searched the home of Zackey Nahimi after he became the leading suspect in a two-month series of reckless shootings in 2020 and 2021 in and around Arlington, Texas. When searching his home, cops found his guns and learned that Nahimi was under a restraining order from 2020 for threatening his ex-girlfriend and their child. Among the order’s restrictions was an explicit ban on gun ownership.
After Bruen, Nahimi sought to overturn his guilty plea to federal gun charges by arguing that the new test rendered his sentence unconstitutional. The three-judge panel agreed. “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,” Judge Cory Wilson wrote for the panel, apparently anticipating the criticism that the ruling would bring. “The question is whether [the statute in question] is constitutional under the Second Amendment of the United States Constitution. In the light of [Bruen], it is not.”
The Justice Department tried to defend the law by pointing to multiple analogous statutes in English and early American legal history. The Militia Act of 1662 allowed English officials under Charles II to seize guns from anyone deemed “dangerous to the Peace of the Kingdom” after the English Civil Wars and the Restoration. Yes, the panel noted, but his successor James II was overthrown in the Glorious Revolution, so it doesn’t count. Nor do a collection of disarmament statutes in the colonies and early states that targeted “those unwilling to take an oath of allegiance, slaves, and Native Americans,” as the panel framed it. Those laws, it concluded, were not individualized enough and instead focused on broad threats to social and political order. “Going armed” laws that protected public peace and surety laws that required suspected threats to provide assurances or be disarmed also don’t count, the panel concluded.
The panel closed by noting that such laws “embody salutary policy goals meant to protect vulnerable people in our society.” Had the court been able to use the pre-Bruen test, it said it would have upheld the restrictions. “But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right,” Wilson concluded. “Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted.’”
The reference to “our ancestors” is striking because of its assumptions. As I’ve noted before, American women typically lacked the ability to own property, serve on juries, or vote in elections at the time of the Second Amendment’s ratification. No women could be counted among the Constitution’s Framers. Nor did any women serve in Congress or in state legislatures when the Second Amendment (and the rest of the Bill of Rights) was ratified. Relying on legislative sources from that period is almost as foreign to a 21st-century American woman as using laws from ancient Assyria or the Polish-Lithuanian Commonwealth. It is even more ill-fitting for a society where the leading cause of death for pregnant women is no longer obstetric causes, but homicide.
The Bruen test is also proving to be no less susceptible to judicial malleability than what preceded it. The Oklahoma case, United States v. Harrison, involved a defendant who was convicted in federal court of gun possession while using marijuana. The Justice Department tried to defend the provision on multiple grounds, including by pointing to “one 1655 law from colonial Virginia and six state or territorial laws enacted between 1868 and 1899” where, it argued, legislatures had banned gun possession by intoxicated persons, using alcohol as an analog for marijuana.
This was not enough to persuade Judge Patrick Wyrick. He rejected the government’s effort to draw broad lessons from the cited laws and instead read them narrowly. The cited laws, in his eyes, required someone to be inebriated in the moment to be disarmed. They did not prohibit the “mere possession” of a firearm, as the current federal statute does. He also put less weight on the nineteenth-century laws by citing a concurring opinion in Bruen by Justice Amy Coney Barrett, which disfavored laws in existence when the Fourteenth Amendment extended the Second Amendment to the states over those in place around the original ratification. The difference between those two eras is one of industrialization and of a decline in subsistence hunting that made possession bans far more onerous than today, thus favoring a maximalist vision of gun rights.
Not every court that has reviewed gun laws since Bruen has struck them down, however. The Third Circuit Court of Appeals, in an unusual opinion signed by the entire three-judge panel, deviated from this pattern last November by upholding 922(g)’s ban on gun ownership for people convicted of felonies. The Supreme Court had suggested in Heller that felon-possession bans were presumptively constitutional, but the panel also found it in a broad reading of history and tradition.
“First, legislatures traditionally used status-based restrictions to disqualify categories of persons from possessing firearms,” the panel concluded. “Second, they did so not merely based on an individual’s demonstrated propensity for violence, but rather to address the threat purportedly posed by entire categories of people to an orderly society and compliance with its legal norms. Third, legislatures had, as a matter of separated powers, both authority and broad discretion to determine when individuals’ status or conduct evinced such a threat sufficient to warrant disarmament.”
But even this decision hasn’t gone without criticism from the right, however. Two prominent conservative legal scholars, Georgetown University’s Randy Barnett and George Mason University’s Nelson Lund argued that it showed the weaknesses of Bruen’s new history-and-tradition test. They sought to overturn it in favor of an even more permissive test and criticized attempts to analogize laws drafted for situations and circumstances that are separated by more than two centuries.
“Historical analogies will frequently provide insufficient guidance, particularly for novel gun control laws that address modern problems,” Barnett and Lund wrote. “Looking at whether individuals could have knives and guns on eighteenth-century ships, for instance, does not provide a persuasive reason either to uphold or invalidate a modern regulation prohibiting weapons on commercial aircraft. That law is designed to prevent aircraft hijackings, a danger quite unlike the threat of mutinies in previous centuries.”
To that end, they proposed moving away from “specious historical traditions” and evaluating gun restrictions through a purpose-based test. “In particular, judges could require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent,” they argued. “In this way, judges can distinguish regulations that reasonably regulate this fundamental right from those that unreasonably obstruct it.”
Imposing such a test, they explained, “appropriately puts a heavy burden on the government to justify regulations of the constitutional right to arms—a burden that must be met by evidence, not speculation.” Such arguments might fall on favorable ears at the high court. Barrett, not to be confused with Barnett, wrote a dissenting opinion while serving on the Seventh Circuit where she argued that the same provision in question in the Third Circuit case was incompatible with the Second Amendment. If the justices are committed to making the lower courts as friendly as possible to gun restrictions, as Barnett and Lund hope, the court may ultimately make it even harder for them to uphold such laws in the future.
