After appearing to ease its strict scrutiny of gun laws two years ago, the Supreme Court has shifted to the right this term. An even bigger Second Amendment case comes next.
“Guns don’t shoot, people shoot.”
President Trump vows to defend Second Amendment: “These things are terrible, but you can’t shoot them. It’s the people who shoot them. It’s, you know, words.”
WASHINGTON – In a landmark 2022 decision, the Supreme Court said modern gun regulations cannot depart too far from historic weapons regulations to pass constitutional law.
Just two years later, the justices appear to have backed away from the controversial test, but two Second Amendment decisions handed down by conservative courts in June show the test is firmly in place, and could influence next term’s showdown over semi-automatic rifles.
The court rejected Hawaii’s attempt to limit where people can carry guns in public, saying its law barring regular drug users from owning guns was too broad. In both cases, the majority said that neither restriction could be supported by laws from the 1700s and 1800s.
“The court seemed willing to accept a relatively loose analogy in applying the Second Amendment to current gun regulations,” said Adam Winkler, a professor at UCLA School of Law and author of “Gunfight: The Battle for the Right to Bear Arms in America.” “But that doesn’t seem to be the case anymore,” he added.
The Supreme Court said in a 2022 decision that gun regulations must be “consistent with this country’s historical tradition of gun control.”
“9-0 overwhelming victory”
A big test of that approach will come this fall, when judges will debate whether state and local governments can ban semiautomatic rifles like the AR-15 in response to mass shootings.
Aidan Johnston, director of federal affairs for Gun Owners of America, is optimistic that the court’s 2024 decision to uphold a law banning domestic abusers from owning guns in a case called United States v. Rahimi was an aberration.
“Things may have looked even bleaker for gun rights activists after Mr. Rahimi took office, but the 9-0 landslide might make things look much better,” Johnston said of the federal government’s recent unanimous ruling against a broad ban on gun possession by marijuana users.
The court’s three liberal justices joined in that opinion, despite Justice Ketanji Brown Jackson’s continued insistence that historical tradition testing is “unworkable” and should be abolished.
Gun violence prevention groups have similarly criticized the tests, but there are signs that they can be used to address modern realities.
Douglas Letter, chief legal officer at Brady Gun Violence Prevention Advocates, said there is nothing in the recent ruling that undermines the court’s previous rulings that the country has historically restricted and may continue to restrict dangerous and unusual weapons.
“Obviously there is disagreement about where that line should be drawn,” Letter said. “We believe that the assault weapons ban… absolutely should be designed to be constitutional.”
Landmark Second Amendment Ruling
Courts have been debating what is permissible ever since a judge ruled in 2008 that the Second Amendment traditionally protects an individual’s right to possess firearms for lawful purposes.
Two years after this landmark decision, a court ruled that the Second Amendment applies to state and local governments, which are the source of most gun regulations.
And in 2022, the court decided in a case called New York State Rifle and Pistol Association v. Bruen. “Historical Tradition” Test.
But Haley Proctor, an associate professor at the University of Notre Dame School of Law who specializes in the Second Amendment, said the court could prevent domestic abusers from owning guns in 2024, ruling that only “historical similarities” and not “historical twins” are needed.
“With this decision, many speculated that the court was withdrawing from a more rigorous examination of Mr. Bruen,” Proctor recently wrote. “When it comes to common-sense steps like disarming an abusive boyfriend, the court seemed less picky about the government’s historical evidence.”
“What kind of weird, elite parlor game is going on?”
Still, historical validation was firmly applied to the June decision.
“What we’re seeing is judges moving back and forth trying to make Bruen’s historical and tradition test work across a range of questions about gun rights and regulation,” said Darrell Miller, a University of Chicago law professor and Second Amendment expert.
Mr. Miller agrees with Mr. Jackson’s criticism that the test is easier to apply than previous approaches to analyzing whether restrictions are sufficiently compatible with modern policy goals, and that it does not deliver on the promise of more constraining judges’ ability to reach desired outcomes.
Additionally, he said, discussions about historical similarities can leave observers scratching their heads.
“When a decision is made to ask questions like, ‘Are modern jets more like horses, or horse-drawn carriages, or ships?’ I think people who are paying attention are just a little confused,” Miller said. “It’s like, ‘What kind of weird elite parlor games are going on over there?’
Drinking habits of the founding fathers
For example, in a case about whether habitual marijuana use disqualifies a person from owning a gun, Justice Neil Gorsuch highlighted how much alcohol John Adams, George Washington, James Madison, and Thomas Jefferson consumed.
“If habitual drinking laws had simply applied to people who drank regularly, many prominent early Americans might have been in trouble,” Gorsuch wrote, rejecting older laws as justifying modern laws.
Joseph Blocher, co-founder of the Firearms Law Center at Duke University Law School, said history is always important when interpreting the Constitution, but people on both sides of the gun control debate will likely be surprised by the level of historical detail in some decisions.
It may be interesting to read about the daily drinking habits of the Founding Fathers, he says, “but there’s a disconnect between what most people think is the purpose of the Constitution.”
“It would be strange to find out that James Madison only drank half a pint of whiskey, not a pint, so that a federal law prohibiting people addicted to controlled substances from owning guns would be constitutional,” he said. “It’s a strange way to think about law. It feels to me like it asks so much history, in some cases, that it’s practically unbearable.”
Divided Lower Court Judgments
Applying historical validation to AR-15 bans can be difficult. Because AR-15s are far more powerful than the guns Americans were using when the Second Amendment was adopted.
“From 1791 until the mid-19th century, the ubiquitous firearm was the single-shot muzzleloader,” a divided panel of judges on the Chicago-based 7th Circuit Court of Appeals said in July when upholding Illinois’ ban on certain semiautomatic rifles and high-capacity magazines. “The AR-15, equipped with a high-capacity magazine, is very different from these precedents.”
Like other appeals courts that have upheld similar bans, the Seventh Circuit judges said the law could be supported by historic rules regarding Bowie knives. In a 2-1 decision, a 7th Circuit panel said the knife’s large blade caused particularly bloody and gruesome injuries, leading many state legislatures to ban it or impose exorbitant taxes on it.
But days later, another appellate court ruled against New Jersey’s assault weapons ban.
Is a Bowie knife like an AR-15?
The Philadelphia-based U.S. Court of Appeals for the Third Circuit said in a 10-5 vote that the Bowie knife regulation does not serve as a historical justification.
The court said there was no evidence that Bowie knives were commonly used for lawful purposes before being restricted. By contrast, the court said there are approximately 24 million AR-15s and similar sporting weapons in circulation in the United States.
“Even though semiautomatic rifles are disproportionately used in some crimes, they may still represent a small fraction of the overwhelmingly legitimate uses of these weapons,” the majority said.
“Gun iPhone”
Blocher, a Second Amendment expert at Duke University School of Law, said it’s hard to see how the Supreme Court could award a partial victory to both sides in an AR-15 case, as the justices did regarding gun owners who regularly use marijuana.
In his opinion, Gorsuch said the decision was a narrow one that left gun bans open to drug addicts and people considered too dangerous to own guns.
The upcoming AR-15 case raises additional questions about how prominent the weapon has become in the national debate over guns. The ban’s association with mass shootings in the public consciousness has made it a top target for groups trying to reduce gun violence. But they’re also very popular among law-abiding gun owners, sometimes referred to as the “iPhone” of guns due to their popularity and ease of customization.
“These weapons are very much tied to identity in many aspects of the debate,” Blocher said. “The stakes are high.”
