The State of the Second Amendment After Bruen

By: Sean R. List, Esq.

The recent Opinion issued by the United States Supreme Court on June 23, 2022, in the case of New York State Rifle and Pistol Association, Inc. v. Bruen, is arguably the most consequential Second Amendment decision in American history.  In my law practice, I have been receiving an onslaught of inquiries regarding what this decision means for the future of the right to keep and bear arms in America, particularly in states that maintain restrictive gun control laws.  People want to know things like:

• Does this mean Massachusetts can no longer arbitrarily deny me an unrestricted license to carry?

• Is the assault weapons ban (SAFE Act) in New York now unconstitutional, allowing me to buy a new AR-15?

• Is the magazine capacity restriction in California now void because it is unconstitutional?

The answer to each of these questions involves both a legal and a practical response.  In a nutshell, the law now clearly establishes that arbitrary restrictions on licenses to carry are unconstitutional, as are prohibitions banning specific firearm types in common use.  In practical effect, additional lawsuits will be needed to enforce the Bruen decision against various anti-gun states that continue to willfully violate the Constitution. Unconstitutional state laws must be overturned by either legislative or judicial action.  If this sounds confusing and frustrating, it certainly is, but stay with me until the end and I promise to deliver some good news. 

The Second Amendment Before Bruen

To understand where we are now, we need to talk about where we have been. It is no secret that gun rights and gun “control” measures are a reoccurring, heated political debate in America.  Unlike any other clearly enumerated constitutional right, the Second Amendment falls victim to persistent efforts to limit its application and exercise (despite undeniable evidence that restrictions are ineffective at preventing crime). For some reason, American culture has relegated the right to keep and bear arms to a second-class status. Can you imagine the near-universal outrage that would occur if politicians attempted to restrict free speech in the same manner as they attempt to restrict the ownership and possession of firearms?  How about if Congress passed a law authorizing nationwide searches of people’s homes without requiring search warrants and probable cause?  The result is obvious; It would be pure anarchy in the streets.

Outside of the political sphere, the Second Amendment has historically been treated as a second-class civil right by many federal courts across the Country.  Many federal courts, at both the District and Circuit Court of Appeals levels, have used a legal test known as “intermediate scrutiny” to analyze the constitutionality of state and federal firearms restrictions.  In order for a restriction to be deemed constitutional under the fatally flawed “intermediate scrutiny” test, the government need only demonstrate that the restriction in question is “narrowly tailored to serve a significant governmental interest.” This standard has produced erroneous decisions upholding blatantly unconstitutional firearms restrictions from coast to coast.  

Impact of D.C v. Heller

In 2008, in the case of D.C. v. Heller, the U.S. Supreme Court issued an opinion that voided a handgun ban and trigger lock requirement in Washington D.C., deeming the restrictions to be unconstitutional.  The Court specifically found that the Second Amendment confers an individual right to possess a firearm, unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.  Then, in 2010, the U.S. Supreme Court issued its opinion in Chicago v. McDonald, which voided a handgun ban in Chicago, and clarified that the Heller decision applies to challenges against state law, in addition to federal law.  McDonald made clear that the individual right to keep and bear arms is applicable to all citizens of the United States.

The Heller and McDonald decisions caused Second Amendment advocates, like myself, to cheer and celebrate. We thought the Court had finally resolved the debate concerning the individual right to keep and bear arms, so we would finally get relief from the unyielding incursion of gun control laws.  Indeed, the Heller and McDonald cases transformed the landscape under which the judiciary was to view the Second Amendment.

So, you may be thinking: “Heller and McDonald must have fixed the problem of federal courts upholding unconstitutional firearms restrictions, right?”  Unfortunately, the answer is no.

Federal courts in liberal jurisdictions around the country continued to apply the intermediate scrutiny test to uphold the legitimacy of unashamedly unconstitutional firearms restrictions. For example:

• In the 2013 case of Woollard v. Gallagher, the 4^th Circuit Court of Appeals upheld a Maryland law requiring a person to demonstrate a “good and substantial reason” to obtain a license to carry a handgun outside of the home.

• In the 2015 case of New York State Rifle and Pistol Association, Inc. v. Cuomo, the 2^nd Circuit Court of Appeals upheld New York laws prohibiting ownership of “assault rifles” and establishing a magazine capacity limit of ten rounds.

• In the 2021 case of Maryland Shall Issue, Inc. v. Hogan, the U.S. District Court for the District of Maryland upheld a state law requiring someone to go through an arduous process to simply purchase a handgun, including two applications, firearms training, fingerprinting, and the submission of a sworn statement.

•  In the 2021 case of Duncan v. Bonta, the Ninth Circuit Court of Appeals, in an en banc decision (where a panel of judges decides a case), upheld a California law establishing a magazine capacity limit of 10 rounds, after the District Court and two prior appellate decisions from the same Circuit Court ruled it to be unconstitutional.  Once again, intermediate scrutiny was used.

Despite the horror show of bad federal court opinions upholding unconstitutional gun laws that persisted after Heller and McDonald, the legal landscape slowly began to shift during the presidency of Donald Trump. Although President Trump invoked mixed feelings within the gun community, it is undeniable that he provided us with one incredible gift: the appointment of pro-Second Amendment judges. During his single term in office, Donald Trump appointed a total of 234 federal judges who were confirmed by the U.S. Senate, including three of the most pro-gun Supreme Court Justices in American history. Justices Kavanaugh, Gorsuch, and Coney Barrett each have a solid history of supporting the Second Amendment.  These appointments were important not just because we expected the new justices to provide pro-gun opinions, but also because the addition of three pro-gun justices made it highly likely that the Court would begin accepting firearm cases for consideration on appeal. It had long been thought that the narrow conservative majority on the Court, with the uncertain swing vote of Justice Roberts, was the cause of the Court’s refusal to consider the majority of firearms-related appeals.  With three additional justices supporting the two incredibly pro-gun justices who already sat on the Court, Alito and Thomas, it appeared certain that positive Second Amendment progress was soon to follow.

Understanding the New York State Rifle and Pistol Association, Inc. v. Bruen

Before Bruen was decided, the Supreme Court granted certiorari (accepted the appeal) in the case of New York State Rifle and Pistol Association, Inc v. City of New York in January of 2019.  It was a lawsuit that challenged a handgun travel ordinance maintained by New York City.  Essentially, the City of New York prohibited individuals from leaving the City with their handguns, even to target practice on Long Island.  Perhaps with knowledge that their ordinance was blatantly unconstitutional, the City changed the law while the Supreme Court appeal was pending.  Although the law’s modification caused the case to be dismissed, Justice Alito, joined by Gorsuch and partially by Thomas, wrote a scathing dissent that provided insight into how the Court would analyze firearm restrictions going forward.  Justice Alito explained that after Heller and McDonald were decided, many lawsuits challenging firearms laws were brought at various federal courts across the country, and most of those courts “failed” in their decisions.  After this decision issued on April 27, 2020, it only took a year for the Court to accept another Second Amendment case targeting New York, the case of New York State Rifle and Pistol Association, Inc. v. Bruen.

The case of New York State Rifle and Pistol Association, Inc. v. Bruen was accepted by the Supreme Court on April 26, 2021.  The Plaintiffs challenged a New York law requiring applicants to demonstrate a “proper cause” in order to receive permission to carry a concealed pistol or revolver.  The proper cause standard was draconian, requiring someone to demonstrate a “unique need for self-defense.”  After hearing oral argument on November 3, 2021, and considering a myriad of legal briefs from both sides of the Second Amendment spectrum, the Court issued its decision on June 23, 2022.  Fittingly, Justice Thomas, a lifelong supporter of the Second Amendment, authored the opinion and released it on his birthday.

The Bruen decision cannot be completely summarized in this short article, but the key takeaways are as follows:

• The Second Amendment protects the individual right to carry a firearm for self-defense outside of the home.

• Intermediate scrutiny, or any other means-based test, is inapplicable to the Second Amendment.  The only test applicable is whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.  If not, the law in question is unconstitutional. 

• New York City’s “proper cause” requirement is unconstitutional.

• The Second Amendment’s meaning is fixed in time according to its historical understanding, but it applies to modern weapons used for self-defense.

• Consistent with Heller, the Second Amendment protects all weapons in common use for self-defense. 

Amazingly, the Court specifically put Washington D.C. and the following states on notice for maintaining arbitrary/discretionary standards for carry permits, similar to New York:

California

Hawaii

Maryland

Massachusetts

New Jersey

The Court clearly indicated that these States are maintaining unconstitutional permitting schemes because they are not “shall-issue” and instead use “suitability” determinations. The Court went a step further, explaining that although shall-issue schemes are not necessarily unconstitutional on their face, they could be unconstitutional if they involve undue burdens.  

After issuing the Bruen decision, the Court accepted appeals in multiple other cases concerning firearms restrictions and simply vacated the bad Circuit Court decisions upholding various unconstitutional gun laws.  The Supreme Court vacated the bad decisions without even hearing argument. The Supreme Court directed the Circuit Courts to review each case in light of the Bruen decision.  This occurred in cases originating in the Third, Fourth and Ninth Circuits.  In fact, the Ninth Circuit Case I referenced earlier, Duncan v. Bonta, which upheld the unconstitutional California magazine capacity prohibition, was one of the decisions that the United States Supreme Court vacated.

In Summary

So, what does this all mean?  This means that the U.S. Supreme Court just put all of the anti-gun states on notice that they are maintaining unconstitutional laws that will be overturned if challenged. The intermediate scrutiny test, used by Courts all over the Country to uphold restrictive gun control measures, has now been abolished concerning the Second Amendment.  Courts are now mandated to disregard alleged government objectives and public policy arguments, instead analyzing firearms restrictions by exclusively looking at the historical meaning and text of the Second Amendment.  This is an unbelievable victory for gun owners and the Second Amendment.  It also indicates that more good things are on the horizon.

I predict that over the next several years, we will see lawsuits all over the country that will overturn gun control laws in states that have inhibited freedom for decades.  Some states, like New York, will remain obstinate until they are sued into oblivion.  If you live in one of the handful of states that is outwardly hostile toward the right to keep and bear arms, try not to become frustrated while the lawsuits work their way through the process. Rest assured, there is light at the end of the tunnel and help is on the way. 

About the Author

Sean R. List Esq. is a partner at the firm Lehmann Major List, PLLC, in Concord New Hampshire.  He specializes in representing the firearms industry, individual gun rights, and defending cases involving the justified use of deadly force.  He also serves as Special Counsel to the Speaker of the New Hampshire House of Representatives. When he isn’t practicing law, he is a firearms instructor, competitive shooter, gun collector and avid hunter.

https://nhlawyer.com/teams/sean-r-list/