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Who Gets to Own a Gun in America?

A recent Supreme Court ruling on gun rights is leading to interesting results in the lower courts.

A gun-rights demonstrator in Columbia, Ohio
Matthew Hatcher/Getty Images
A gun rights demonstrator in Columbia, Ohio, in 2019

Two rulings on gun rights this month show how a year-old Supreme Court ruling is forcing the lower federal courts to reckon with some of the more uncomfortable aspects of early American history. In one case, a federal judge in West Virginia ruled that gun-ownership bans for people with mental illnesses are constitutional. In the other, a federal judge in Virginia struck down a law that barred under-21-year-olds from buying handguns.

Both decisions hinged in part on whether their subjects counted as part of “the people” for whom the Second Amendment protects the right to bear arms. To answer that question, the judges looked at who was part of “the people” more than 200 years ago. In some cases, this analysis spells doom for a present-day law. In others, it appears to raise more awkward questions.

The two rulings are part of the aftermath of New York State Rifle & Pistol Association v. Bruen, the Supreme Court decision last year that rewrote the test that lower courts use when weighing the constitutionality of a gun-related law. At issue in Bruen was a long-standing New York statute that gave broad discretion to local sheriffs when approving and denying concealed-carry permits. Writing for the majority, Justice Clarence Thomas rejected the idea that courts can consider a gun law’s costs and benefits to society when looking at its constitutionality.

Instead, the court mandated an originalist approach to interpreting the amendment. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Thomas wrote. “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.’”

To that end, in the Virginia case John Corey Fraser v. Bureau of Alcohol, Tobacco, and Firearms, Judge Robert Payne noted that almost no states banned 18-to-20-year-olds from owning guns when the Second Amendment was ratified. The case had come before Payne after four men challenged a federal law that set the minimum age for purchasing a handgun to 21 years old; all four were between the ages of 18 and 20 when challenging the law. They argued that denying them the ability to purchase a gun after they reached the age of majority violated the Second Amendment.

Payne agreed and struck down the law, noting that there was no evidence of a historical tradition of such a ban. He also rejected the federal government’s counterargument that “the people” to which the Second Amendment refers did not apply to 18-to-20-year-olds in 1791 and thus could not apply to the plaintiffs today for gun restrictions. He noted in rebuttal that “the people” of that era bore only a partial resemblance to the American citizenry of today.

“This is neither the time nor the place to thoroughly define and discuss each contour of ‘the people’ at the time of the Founding,” Payne explained in a footnote. “But it appears that, at the minimum, all those of African descendent [sic] (many of whom were still enslaved), Native Americans, and likely many white married women would not be included. Though this is doubtlessly not the government’s intent, this is the logical end of the government’s argument, and it is a view to which the court simply cannot subscribe.”

In U.S. v. James Gould, the West Virginia case, that analysis came out a little differently. A federal grand jury indicted the defendant with unlawful possession of a firearm in May 2022. As a result of his mental illness, he had been involuntarily committed on four different occasions and had also been the subject of multiple emergency protective orders over the years for domestic violence–related allegations, which disqualified him for gun ownership under federal law. He then challenged the constitutionality of his arrest after the Bruen ruling came down, arguing that it now violated the Second Amendment.

Judge Thomas Johnston rejected that argument and upheld the federal law that bars gun ownership for those who have been, among other things, committed to a mental institution. He noted that the Supreme Court had outlined how an individual right to bear arms could be limited in broad terms in its landmark ruling in District of Columbia v. Heller more than a decade ago.

Writing for the court in Heller, Justice Antonin Scalia had described that right as belonging to “law-abiding, responsible citizens.” He also added that the majority’s ruling wasn’t intended to cast doubt on “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” This broad language allowed numerous gun restrictions to survive Second Amendment challenges in the decade between Heller and Bruen.

Gould had argued that this portion of Heller amounted to dicta, a legal term for nonbinding commentary in a judicial opinion that doesn’t form part of the actual ruling. Johnston rejected that claim and the argument that Bruen had overridden Scalia’s exceptions in Heller. “Importantly, the Bruen Court characterized its decision as ‘making the constitutional standard endorsed in Heller more explicit,’—not abrogating or overturning it,” Johnston noted.

When it came to Bruen’s test—finding historical analogues to justify modern restrictions—Johnston acknowledged that there are no directly comparable laws from the founding era. The implied reason is that Americans have a much better understanding of mental illness in the twenty-first century than in that era. So Johnston noted that early Americans often imposed even harsher restrictions on people with mental illnesses, meaning that lesser ones like gun restrictions would have been acceptable, and that early American legislatures often banned ownership for those deemed “dangerous” at the time.

“As this court explained, ‘history is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,’” Johnston wrote, quoting from another recent opinion on gun rights from the district court where he serves. “And ‘common sense tells us that the public understanding of the Second Amendment at the time of its enactment, which allowed for disarmament of Blacks and Native Americans based on their perceived threat, would have accepted disarmament of people’ who have been involuntarily committed to a mental institution because they were part of ‘a group found by the legislative branch to present a danger of misusing firearms.’”

In other words, because early American legislatures defined certain people as “dangerous” and broadly restricted their rights, modern American legislatures can do the same thing to whomever is defined as “dangerous” today. This is not to say that Johnston’s ruling is wrong as a matter of law or that the law itself is wrong as a matter of policy. It is simply a very strange way to get around to the obvious cost-benefits conclusion that people with histories of severe mental illness and domestic violence shouldn’t have access to guns. That judges must commune with the spirits of the Founders to reach that conclusion is simply the world that Bruen has created.