Judges Confused by Supreme Court’s Historical Test for Gun Laws

Confusion over the US Supreme Court’s last gun rights ruling is likely to persist even after the justices decide a new Second Amendment case next term.

Establishing a constitutional right to carry a handgun in public in a landmark 2022 decision forced lower courts to play historian and look to Colonial-era laws to justify the lawfulness of gun restrictions, a duty that has frustrated some judges.

“Judges are not historians,” Judge Carlton Reeves of the US District Court for the Southern District of Mississippi said in dismissing a case after finding no history or tradition to support upholding the federal ban on convicted felons having guns. “We were not trained as historians. We practiced law, not history.”

Reeves called it a “disappointing failure” that the government didn’t designate a historian to testify on the analogues to modern felon‐in‐possession laws even though he had asked the parties if the court should appoint one.

In the term starting in October, the justices will review a ruling by the US Court of Appeals for the Fifth Circuit striking down the federal ban on domestic abusers owning guns. The decision in United States v. Rahimi was based on the historical standard the Supreme Court set a year ago in New York State Rifle & Pistol Assn. v. Bruen.

Legal scholars doubt the justices will answer all the questions Bruen has raised as lower courts weigh everything from assault weapon bans to restrictions on firearms in sensitive places like churches, parks, and zoos.

Adam Winkler, a UCLA School of Law professor who studies Second Amendment law, said Bruen has led courts to strike down over 30 gun restrictions.

“The court adopted this bizarre test that requires gun laws today to be consistent with the gun laws of the 17 and 1800s,” he said. “And given how many of our gun laws are modern 20th century inventions, designed to respond to the problems of a modern urbanized society, this test has proven to be a disaster.”

Unanswered Questions

In Bruen, conservatives comprising the majority in the 6-3 decision said lower courts should assess whether modern firearm regulations are consistent with Second Amendment text as well as history and tradition.

How courts are supposed to conduct that analysis has created a number of questions, said Andrew Willinger, executive director of the Duke Center for Firearms Law.

Questions include whether judges should rely on evidence brought by parties, find experts, or do historical research themselves. Also, how many state laws are needed to establish tradition and from what time periods?

“I imagine there’s a lot of disagreement among the justices about them and I doubt we’ll see any kind of real clarification in Rahimi,” Willinger said, of the case challenging the federal ban on people possessing guns if they’re subject to a restraining order for domestic violence.

Appeals courts are trying to apply the standard in a litany of cases likely to make their way to the Supreme Court.

The Second Circuit heard and Third Circuit will soon hear challenges to state laws banning guns in areas designated as “sensitive” places in New York and New Jersey, respectively. The full Eleventh Circuit has been asked to rehear a case that upheld Florida’s ban on gun sales to people between the ages of 18 and 20.

And the Fifth Circuit is weighing a federal law that makes it a crime for anyone who uses or is addicted to a controlled substance to possess a gun.

Last month, the Fifth Circuit invited interested parties to submit briefs that give the court relevant information about the history and tradition of restrictions on the use and possession of firearms that are related to the issues in this case. The court said “of particular interest are historical gun regulations applicable to intoxicated or impaired individuals.”

The request signals even some of the judges on the conservative Fifth Circuit are looking for guidance on how to apply the Bruen test.

1868 or 1791?

Some gun rights advocates, however, say courts aren’t confused by Bruen, but are unwilling to accept the full implications of the high court’s decision.

“The Second Amendment is simple and Bruen simply said you actually have to enforce it,” said Hannah Hill, executive director of the National Foundation for Gun Rights Inc. “There’s a very long standing unwillingness in the lower courts to do that and that is where the confusion is coming from.”

Hill argues the Bruen standard is easy to follow and doesn’t require nearly as much historical expertise as some courts and gun control advocates suggest.

“You look at the laws, you look at what they reflect, you look at what the Second Amendment text actually says,” she said.

But even Justice Amy Coney Barrett seemed to question when that analysis should begin.

In Barrett’s concurring opinion in Bruen, she said the majority didn’t answer whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 or when the Bill of Rights was ratified in 1791.

“The Second Amendment wouldn’t even apply to the states if it weren’t for the Fourteenth Amendment,” said Kelly Roskam, director of law and policy at the John’s Hopkins Bloomberg School of Public Health Center for Gun Violence Solutions. (The Bloomberg School of Public Health is supported by Michael R. Bloomberg, founder and majority owner of Bloomberg LP, the parent company of Bloomberg News).

Roskam noted that the Eleventh Circuit focused its analysis on historical laws from the post Civil War Reconstruction Era in upholding Florida’s ban on guns being sold to 18 to 20 year-olds.

The appeals court said “those sources reflect the public understanding of the right to keep and bear arms at the very time the states made that right applicable to the state governments by ratifying the Fourteenth Amendment.”

Because Barrett’s concurrence signals the justices couldn’t agree on when the historical analysis should begin when it decided Bruen, Roskam said it’s unclear if the court is going to be in agreement just a year later.