Just after the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen (2022), it sent several cases on its docket back to the lower courts, which had upheld gun restrictions, to be re-decided in accordance with the Bruen ruling. That’s Court-speak for “you got it wrong; now go back and get it right.” And, in Bruen, the Court made very clear how to get it right.
First, the Supreme Court demanded that lower courts answer whether the activity is protected by the text of the Second Amendment. As in, read my lips, “the right of the people to keep and bear arms” means what it says. Therefore, if the activity is presumably protected, then the burden shifts to the government to justify a restriction. If a case involves a ban on arms in common use for lawful purposes, then that is the end of the matter—the restriction is constitutionally invalid.
Second, did a similar restriction or an analogue thereof exist around America’s founding when the Amendment was adopted in 1791 or within a few years thereafter? If not, the restriction on our freedom is unconstitutional. If so, then a court must judge if the modern restriction is indeed in step with our historical traditions.
The Court also made clear how not to get the enforcement of this decision wrong. Basically, this means that judges can no longer weigh in with their arbitrary value judgments in a means-ends balancing act to uphold any and every restriction under the fancy term “intermediate scrutiny.” The idea that the government can always win with a rubber stamp in these cases is now moot.
Let’s start with the first case the Court sent back to make a lower court get it right: the Fourth Circuit’s decision upholding Maryland’s “assault-weapon” ban, which was based on the delusion that ordinary AR-type semi-automatic rifles are not really different from machineguns and are somehow “weapons of war most useful in military service.” The Fourth Circuit claimed this even though no major military force in the world issues semi-automatic rifles as standard service weapons to its armies.
Since there were no gun bans at the Founding, Maryland argued that it found an analogue in restrictions on similar “extraordinarily dangerous” weapons like Bowie knives. But, as it turns out, only a minority of states in the antebellum period restricted carrying these knives concealed, and none banned them.
A three-judge panel of the Fourth Circuit heard the case, called Bianchi v. Frosh, on Dec. 6, 2022. The fact that the banned rifles and magazines are in “common use” under Heller is incontestable. Who knows what the panel may decide, but the decision could include a remand to the lower court or a decision on the merits. Any decision reached could also be reheard by the entire court (en banc).
Meanwhile, we did have an opening salvo against Bruen in the form of the decision of the U.S. District Court in Chicago in Bevis v. City of Naperville, which denied a preliminary injunction against enforcement of Illinois’ new “assault-weapon” ban. Ignoring the “common-use” test, which resolves that specified arms are not “dangerous and unusual,” this opinion invented a test of “particularly dangerous” and applied it to the AR-15.
In support, the court made this odd claim: “The muzzle velocity of an assault weapon is four times higher than a high-powered semi-automatic firearm.” Strange, considering an AR-15 is a semi-automatic firearm. And, though it is hard to make sense of this statement, perhaps they are attempting to compare .223 Rem.-chambered AR-type rifles with rifles chambered in other calibers? Whatever the case, they clearly don’t know what they’re talking about.
The court then asserted that the “injury along the path of the bullet from an AR-15 is vastly different from a low-velocity handgun injury … .” So they compared rifles to handguns without regard to whatever they might be chambered in … ? Sounds like a bait-and-switch tactic to me.
The Special-Need Nonsense
Now, turning to the subject of the right to carry handguns, Bruen invalidated New York’s law that issued permits to a favored few and instead held that law-abiding citizens generally are entitled to carry without showing a special “need.” In reaction, New York banned carry on their crime-ridden subways, at churches and synagogues (which have been subject to extremist attacks) and just about everywhere else. To make carry into a store or gas station legal, a sign must be posted basically saying “Gun Owners Welcome” (woke code for “boycott this business”).
Two district courts held these laws to be unconstitutional under the Second Amendment, and New York’s appeal in several cases was heard before the U.S. Court of Appeals for the Second Circuit on March 30, 2023. In the NRA-supported case His Tabernacle Family Church v. Nigrelli, New York’s lawyer admitted that “there are more threats against churches than other places,” which actually supported any church’s right to decide for itself whether its parishioners can carry concealed. As the church’s attorney Erin Murphy replied, worshipers are simply “sitting ducks” in these soft targets.
No one questions the right of a private-property owner to exclude anyone for any reason, guns or no guns, but businesses obviously invite the public into their establishments. New York law flips the default rule of trespass with a mandate that notice must be given if someone may enter while they carry concealed. The state thus coerces specific speech on the part of businesses that may or may not want to take sides in politics—this is a violation of both the First and the Second Amendments.
We’ll have to wait and see what the Second Circuit says about all of this, but it certainly won’t end there.
West Coast Cases
Now let’s move to California, on the West/Left Coast, that marvelous hotbed of Second Amendment litigation and home of the often-hostile Ninth Circuit. California bans the retail sale of semi-automatic pistols that do not have a “chamber load” indicator, a magazine-disconnect mechanism and microstamping capability (a futuristic design in which the firing pin imprints the identity of the pistol on the primer when fired). Not a single new pistol has been placed on the state’s Roster of Not Unsafe Handguns (they couldn’t bring themselves to say “Safe Handguns”) since 2013, when microstamping was imposed, as zero pistols are made nationwide with this unattainable feature.
On March 20, 2023, the U.S. District Court for the Central District of California, in Boland v. Bonta, issued a preliminary injunction against enforcement of the law, holding simply: “Requiring Californians to purchase only outdated handguns for self-defense without question infringes their right to keep and bear arms.” As the court recognized, manufacturers continuously improve firearms to make them safer, more reliable and more accurate.
Since pistols with improved designs meet the Bruen test of being bearable arms, the burden shifted to California to find analogues from the Founding period in which comparable restrictions were in place. The state claimed to find two such analogues. First, a handful of states in the early republic required barrels of firearms sold in state to be “proved,” as in tested to ensure they were safe. But that was not analogous to the California law, which stifles the introduction of improved, safer designs.
A second analogue suggested by California was the existence of storage requirements for large quantities of gunpowder. But those were fire-prevention regulations in the era of volatile black powder, and so this provides no support for the restrictions here.
There is a back story to this case that was revealed in the transcript of the hearing before the district judge. California’s star witness was Saul Cornell, who testified that in his opinion, California’s law fully complied with the Bruen decision. On cross-examination by plaintiffs’ counsel, Cornell admitted to having written in SCOTUSblog that “Justice Thomas’s [Bruen] decision” was based on “fiction, fantasy and mythology,” and that Thomas inhabited a “bizarro constitutional universe.” Further, Justices Gorsuch and Barrett were “ideological warriors and political hacks.” Yet Cornell claimed to be a neutral “expert.”
Restrictions on 18-20 Year Olds
Meanwhile, the courts are in disagreement about whether 18-20-year-old persons have a Second Amendment right to purchase or carry firearms. Before looking at a couple of the cases, attention should be directed to the Militia Act of 1792—passed one year after the Second Amendment was ratified. It directed “each and every free able-bodied white male citizen” [“white” was crossed out in 1867] aged 18 to 44 to enroll in the militia and to “provide himself with a good musket or firelock,” except that each horseman must “furnish himself” with a sword and “a pair of pistols.” This remained the law until 1903.
On March 9, 2023, the U.S. Court of Appeals for the Eleventh Circuit, in NRA v. Bondi, upheld Florida’s law prohibiting persons under 21 from buying firearms. (They may acquire them in other ways, thus avoiding a NICS check.) It stated that the requirement to “enroll in the militia” (it ignored the wording to “provide” or “furnish” himself with arms) shed no light on the right to bear arms. It found a mere three states with age restrictions during Reconstruction and chose 1868, the year the Fourteenth Amendment was ratified, rather than 1791, when the Second Amendment was ratified, as the year that counts for analogues. Never mind that the Militia Act was still on the books then.
Just as an aside, the Fourteenth Amendment made most of the U.S. Bill of Rights applicable to the states. It did not change the meaning of the Bill of Rights. To set the understanding of the rights guaranteed therein at 1868—an unsettled, contentious period of American history—would up-end the entire body of U.S. Supreme Court precedents, from the First Amendment on down.
While forbidden by Bruen, the court in Bondi engaged in judicial-interest balancing, pointing to “firearm violence among some 18-to-20-year-olds.” Well, if you want to play that game, leave females in that age group out of the equation, as their rate of such crime is extremely low. But, of course, the equal-protection clause of the Fourteenth Amendment would forbid a male-only ban.
The above can be contrasted with a March 31 decision by the U.S. District Court for the District of Minnesota, Worth v. Harrington, in which the court held that young adults are protected by the Second Amendment in obtaining permits to carry handguns. Persons aged 18 to 20 are among “the people” in the First, Second and Fourth Amendment contexts. As to the Militia Act of 1792, the court wrote: “And the fact that the Second Amendment itself discusses the ‘well regulated militia’ means the age-range of militia laws is of particular relevance to the reach of its protections.”
This court brushed off analogues from the Reconstruction era as being too far removed from the Founding, not to mention that none of them prohibited carriage of firearms by citizens aged 18 to 20.
While not relevant to the original understanding of the Second Amendment, and thus not mentioned by the court, the Twenty-Sixth Amendment, ratified in 1971, prohibits denial of the right to vote to persons eighteen years of age or older. The demand for that right originated in the World War II generation and was consummated by the Vietnam War generation. The thought was that you are old enough to vote if you are old enough to bear arms in war. By the same token, you should be considered old enough to bear arms in peacetime.
The above civil cases give only a sampling of some of the outstanding post-Bruen cases. Criminal cases are also brewing, with some courts holding as invalid the federal prohibitions on firearm possession where there is no conviction for actual wrongdoing, such as the bans applicable to persons under indictment (one judge quipped “a grand jury could indict a [burrito] if asked to do so”) and to persons subject to a civil restraining order (which lacks the guarantees of a criminal proceeding). Such cases have a high chance of U.S. Supreme Court review.
Meanwhile, some courts are good at avoiding Supreme Court review. California’s magazine-ban case, Duncan v. Bonta, could have been resolved by the Ninth Circuit when remanded by the Supreme Court, but it remanded the case down to the district court for further review, despite that court having already rendered an exhaustive opinion.
Make no mistake, some courts are engaged in massive resistance against Bruen, just as they did with Heller. Still, many courts are taking Bruen seriously and finding restrictions violative of the Second Amendment. What is unfolding is part of a larger historical struggle between freedom and government control, and it will never end.
Attorney Stephen P. Halbrook is a senior fellow with the Independent Institute. His latest books are America’s Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? For more, go to
stephenhalbrook.com.
