Second Amendment March at the Capitol, Sept. 17, 2020 | Laina G. Stebbins
More than two years after the U.S. Supreme Court fundamentally expanded its interpretation of the Second Amendment, federal courts throughout the country continue to strike down state restrictions on gun ownership.
Since the high court’s 2022 decision — in New York State Rifle & Pistol Association Inc. v. Bruen — that firearm regulations must have some historical comparison going back to the country’s founding, some state restrictions have been ruled unconstitutional. But lower courts are still figuring out the limits of that historical test and have not yet come to a broad agreement on key gun-related laws.
Still, wins for gun rights supporters have mounted. Over the past two years, federal courts have struck down bans on assault weapons in trend-setting blue states such as California and Illinois.
In October, a federal district court judge ruled that New York’s ban on carrying a concealed firearm on private property open to the public is unconstitutional.
In September, a federal district court judge in northern Illinois ruled the state’s ban on carrying a concealed firearm on public transit violated the Second Amendment.
And in July, the U.S. Court of Appeals for the 8th Circuit upheld a lower court’s ruling that found Minnesota’s age restriction on residents carrying a handgun in public also was unconstitutional.
It has been a busy time for gun rights attorneys, such as Bill Sack, director of legal operations for the Second Amendment Foundation, a Bellevue, Washington-based legal advocacy organization that has flooded the courts with challenges to gun regulations nationwide.
“The second Bruen came down, there was the starting gun for a sprint, for which we have not stopped yet,” he told Stateline. “Stuff is ripe for a fresh challenge.”
Sack and other gun rights advocates are now asking the courts to define the Supreme Court’s new Bruen standard: a series of “who, what and where” questions about which gun rights limitations are allowed under the latest interpretation of the Second Amendment.
Who can own a firearm? Cases going through the courts are challenging laws that ban firearm ownership by anyone younger than 21, or anyone who has been convicted of nonviolent offenses or people who live in public housing.
What sort of firearm equipment can someone possess? There are state laws that may put restrictions on owning handguns, assault weapons, high-capacity magazines and untraceable “ghost guns” that people can assemble from online-bought or 3D-printed parts, such as the one allegedly used by the suspect in the recent assassination of a UnitedHealthcare executive in New York City.
Where can people possess a firearm? The U.S. Supreme Court has established that states can ban firearms in “sensitive places,” but states and courts are still determining what that means. Some states ban firearms on mass transit and in public parks or government buildings. This month, Michigan banned firearms in and around polling places.
Still, Sack expressed optimism.
“We are making major inroads,” Sack said. “The arc of history will show that this time period was very good for us and very bad for them.”
But Sack’s confidence may be misplaced, said Esther Sanchez-Gomez, litigation director at the Giffords Law Center, a nonpartisan gun safety organization.
Last month, a federal judge in southern Illinois struck down the state’s ban on assault weapons. While that case is being appealed, the U.S. Court of Appeals for the 7th Circuit ruled earlier this month that the ban can remain in place for now.
Sanchez-Gomez also pointed out that in August, the U.S. Circuit Court of Appeals for the 4th Circuit upheld Maryland’s ban on similar weapons. The issue might need to be resolved by the Supreme Court.
“There’s movement on assault weapons,” she said in an interview. “I wouldn’t say that it’s a lost issue universally. Rather, I’d say that there’s a lot of different results coming out and that courts have yet to coalesce.”
A shifting standard
In June 2022, the 6-3 conservative majority of the U.S. Supreme Court struck down part of New York’s law that established a strict permitting system to carry a concealed weapon. In the case, New York State Rifle & Pistol Association Inc. v. Bruen, the nation’s high court established the standard by which firearm-related cases should be judged.
Not only did the court rule that Americans have a constitutional right to carry a firearm in public for self-defense, but it also noted that gun laws must have some sort of historical grounding dating back to the country’s founding.
What you’re seeing is courts across the country trying to figure out how to do that historical, constitutional test in real, practical terms.
– Esther Sanchez-Gomez, litigation director at the Giffords Law Center
Conservative Justice Clarence Thomas outlined that test in the majority opinion, writing that “to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.” That has forced litigants and lawmakers to find comparable laws from 200 years ago to justify a new gun restriction.
This was a departure from the previous standard, established 14 years earlier in District of Columbia v. Heller.
In that 2008 case, the Supreme Court ruled a person has a right to possess firearms but made clear that gun restrictions are constitutional. The decision held that a gun law could be judged on whether it served the public interest, such as by preventing firearm deaths.
That standard no longer applies, and courts are still determining whether there are limits to the Second Amendment and how a historical test from the Revolutionary era can be applied to modern firearm restrictions. Liberal Justice Ketanji Brown Jackson has criticized the Bruen standard, saying it forces judges “into service as amateur historians.”
But the Supreme Court has shown that it views some gun restrictions as constitutional. In an 8-1 decision in United States v. Rahimi this June — with Thomas the lone dissenter — the court upheld a 1994 federal law that bans people with domestic restraining orders from owning firearms.
“The Supreme Court gave us some additional clues, but it is still creating some confusion,” Sanchez-Gomez said. “What you’re seeing is courts across the country trying to figure out how to do that historical, constitutional test in real, practical terms.”
Conservative Justice Brett Kavanaugh even noted in a concurring opinion in Rahimi that “Second Amendment jurisprudence is in its early innings” and that he expects the court will see many more cases.
Indeed, The Trace, a nonprofit news service that investigates gun violence, found that as of September, there had been more than 1,600 federal court decisions on Second Amendment challenges that cited Bruen.
A paper by law professors at the University of Southern California and the University of Virginia, published in July, found the Bruen decision had a “substantial” effect on firearm-related gun cases. Bruen seems to have generated more pro-gun decisions, researchers wrote, but they said the next few years may bring yet more changes.
The future of gun control cases
While Minnesota’s minimum age requirement for possessing a firearm was struck down this year, similar restrictions in states such as Colorado, Florida and Pennsylvania are still going through federal appeals courts and could have a different outcome.
Courts also are trying to determine appropriate state firearm restrictions for “sensitive places,” where the presence of guns could be a significant danger. There are challenges across the country to firearm possession in post offices, parks and playgrounds.
In September, the U.S. Court of Appeals for the 9th Circuit upheld parts of California’s and Hawaii’s “sensitive places” laws, allowing residents to carry firearms in some previously banned locations, such as financial institutions, hospitals and public transit, but continuing the bans in alcohol-serving bars and restaurants, beaches and parks.
In many of these cases, the makeup of the courts has been a deciding factor. For example, the U.S. Court of Appeals for the 7th Circuit, based out of northern Illinois, has tended to be more favorable toward gun safety laws.
It’s unclear how gun regulations are going to fare in the courts in the coming years, said Adam Garber, executive director of CeaseFirePA, a gun safety organization that has advocated for tighter restrictions at the commonwealth and local level.
While the U.S. Supreme Court signaled a willingness to allow some restrictions in its latest decision this year, he said, the Bruen opinion’s effects linger.
“The reality is that there is a real risk to gun safety laws across the nation because of a radical interpretation,” Garber said. “But we also saw courts say, ‘Wait, wait, wait, we’re not saying no gun safety laws are allowed.’”
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