Starting pistol: ‘Tidal wave’ of gun laws struck down a year after Supreme Court Bruen ruling
Kaelan Deese
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The Supreme Court‘s landmark 6-3 opinion on gun laws, emphasizing “historical tradition,” has quickly become a vital lifeline for gun rights advocates challenging state firearms regulations in lower courts.
The high court decided New York State Rifle & Pistol Association v. Bruen on June 23 last year, where Justice Clarence Thomas, the most conservative on the bench and staunch defender of Second Amendment freedoms, wrote for the majority that New York’s 108-year-old “proper cause” concealed carry regime was unlawful.
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“It’s the framework that is going to be used on almost all challenges that will be coming up regarding the Second Amendment,” Tom King, executive director of the New York State Rifle & Pistol Association, the plaintiff in the landmark case, told the Washington Examiner.
Although the ruling directly affected New York’s law, it had a sweeping influence on other states, leading lawmakers to evaluate new regulations complying with the Supreme Court decision while preserving strict ownership laws. Attorneys general in California, Hawaii, and New Jersey issued similar directives informing residents they could no longer require concealed carry permit applicants to demonstrate a justifiable need to carry a handgun.
In the immediate eight months after the Bruen decision, there were 31 successful claims in lower court legal fights where it’s been cited, according to Jake Charles, an associate professor at Pepperdine University’s Caruso School of Law, who has tracked lawsuits against firearms laws.
“It’s definitely more than 31 claims now,” Charles told the Washington Examiner, nearly 12 months after the decision. His data from June of last year to February indicates a 14.6% success rate out of around 212 lower court cases that cited the recent Bruen opinion.
The count of successful claims in firearms disputes post-Bruen dramatically upstaged the immediate effect of 2008’s District of Columbia v. Heller, which established the Second Amendment protects an individual right to keep and bear arms inside the home, but did not have as big of an effect on lower court decisions in its immediate aftermath.
That’s because it took until the 2010 McDonald v. Chicago decision, which incorporated and applied Heller to the states, for litigants to begin to see just 5% successful claims out of 327 lawsuits that cited Heller between 2008 and 2010, according to a 2018 Duke Law Journal analysis from Eric Ruben and Joseph Blocher.
“As Joseph and Eric’s work shows, successful claims after Heller trickled in like a stream, with only a small handful of wins even a year-and-a-half out from the decision; Bruen, by contrast, has come on like a tidal wave,” Charles writes in his study.
The new framework under Bruen is already in play in a challenge by a gun store owner and several gun rights groups in Illinois, who say the state’s new law blocking civilian sales or transfers of many types of commonly owned semiautomatic rifles does not conform with the nation’s historical tradition of firearms regulation.
Illinois gun shop owner Robert Bevis argued in the high court filing that there “cannot be the slightest question” that Illinois’ restrictions violate the Second Amendment right to possess firearms and that the district court judge in his case hadn’t gotten the “message” the justices intended with Bruen.
“This Court intended Bruen to be a course correction and a reminder to the lower courts that the Second Amendment is not a second-class right,” said Bevis, who was denied an emergency application at the Supreme Court on May 17 on procedural grounds, but is moving forward with the case in the U.S. Court of Appeals for the 7th Circuit.
There are still significant differences in success rates for civil claims compared to criminal claims, which won far less often, according to Charles’ analysis of federal court decisions that cited Bruen and involved the Second Amendment.
Challenges to commercial regulations, unlawful gun use, the National Firearms Act, bail conditions, and sentence enhancements have failed each time. But claims involving carry licensing or allowing private property owners to forbid gun carry have won every challenge thus far. In claims involving age restrictions, sensitive place bans, and “ghost gun” rules, they have succeeded around half the time.
“We’re still seeing lots and lots of claims that fail, most often challenges to the felon in possession ban,” Charles said.
Some lawyers are finding a vestige of hope that the novel Bruen test could benefit clients facing investigations over potential violations of the Gun Control Act of 1968, which prohibits unlawful drug users from possessing firearms. While President Joe Biden publicly denounced the Bruen decision, attorneys for his son Hunter Biden are planning to lean on the landmark gun decision, should he be charged in an investigation into whether he lied about drug use on a federal firearms application in 2018.
Bruen’s inception began with a dispute between the NYSRPA and the state over the 1911 Sullivan Act, which at the time, which made possession of a handgun without a permit a crime. Petitioners asked the court specifically “whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”
The ruling marked the first time the 6-3 conservative majority on the high court weighed a Second Amendment dispute and resulted in the majority meeting petitioners in the middle to find New York’s long-standing discretionary permit regime to be unconstitutional, and that gun laws overall must have a basis in the nation’s historical tradition of firearm regulation.
While Thomas’s majority opinion effectively rendered public carry a constitutional right, the ruling notably draws limits, stating that “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Justice Brett Kavanaugh penned a concurring opinion joined by Chief Justice John Roberts that notes states can maintain licensing regimes such as background checks before issuing public carry permits.
While gun control activists have criticized the Supreme Court’s historical test, they contend that many gun restrictions will likely survive some legal challenges. “That means that judges can continue to find many gun regulations constitutional — if they so choose,” according to a March 17 blog post from the Alliance for Justice, a liberal judicial advocacy group.
Disagreements on statutory interpretations of federal gun laws can also lead to splits in circuit courts later on down the road, which often form an opening for Supreme Court justices to review petitions over those disputes.
Andrew Willinger, executive director for the Center of Firearms Law at Duke University Law School, told the Washington Examiner the “million dollar question” is whether Bruen signals a trend where the justices will take up more Second Amendment disputes.
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“Or is it going to be something like Heller where the court just sits there and doesn’t take a case for a long time? There were essentially 10 years [between] McDonald and Bruen where the court received a lot of petitions and did not take a single major Second Amendment case,” Willinger said.
“I think that this court is somewhat more likely to take these cases and to hopefully clarify a little bit about what this Bruen test looks like, but we’ll see,” Willinger added.