In the 2022 case New York State Rifle & Pistol Association v. Bruen, the Supreme Court introduced a new test to determine the constitutionality of laws meant to address gun violence in the United States.
In his majority opinion, Justice Clarence Thomas wrote that such laws must be struck down unless they are “consistent with the nation’s historical tradition of firearm regulation.”
Since then, federal appeals courts have been busy trying to make sense of that decision that requires looking for historical analogies to modern gun control laws. It has not gone well, writes Adam Liptak in the New York Times.
The approach has created “a labyrinth for lower courts….with only the one-dimensional history-and-tradition test as a compass,” Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., writing for six judges, said last month.
Some judges have found that a historical analysis leads to surprising and illogical results.
This month a unanimous three-judge panel of the Ninth Circuit, in San Francisco, analyzed laws from California and Hawaii that sought to forbid carrying guns in many places.
“Taking a step back from the historical analysis,” Judge Susan Graber wrote for the panel, “the lists of places where a state likely may ban, or may not ban, the carry of firearms appear arbitrary. A state likely may ban firearms in museums but not churches; in restaurants but not hospitals; in libraries but not banks.”
“The deep historical analysis required by the Supreme Court provides the missing link,” she added, “but the lack of an apparent logical connection among the sensitive places is hard to explain in ordinary terms.”
Chief Justice John Roberts defended the courts gun rulings in a June decision upholding a federal law that made it a crime for people subject to domestic violence restraining orders to have guns. In his majority opinion, Chief Justice John G. Roberts Jr. looked to history in very general terms and said lower courts bore the blame for the confusing state of the law.
“Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote. “These precedents were not meant to suggest a law trapped in amber.”
“The Supreme Court has only just begun to articulate rules and principles to implement the right to keep and bear arms, and just like with other rights, that’s going to take time,” said Joseph Blocher, a law professor at Duke. “It’s clear that the lower courts are struggling to apply this new historical-analogical test. Some judges are explicitly begging for guidance, and the justices are either going to have to provide that itself or give the lower courts room to do it themselves.”
They likely will take up the issue again soon, said Jacob D. Charles, a law professor at Pepperdine University.
“Several major Second Amendment issues have been fracturing lower courts that may soon elicit Supreme Court review,” he said. Among them: laws barring felons, drug users and young people from having firearms; measures establishing gun-free zones; and bans of high-powered rifles.
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