What’s Brewin’ With Bruen: A New Landscape for Defense of Gun Crimes
First published at NACDL.
The Supreme Court’s Bruen decision will have a major impact across the United States. Jurisdictions will make changes to gun regulations already on the books, and lawyers will bring legal challenges to existing gun laws. Defense attorneys Zachary Newland and Catherine Turner review and explain the new standard set forth in Bruen, and they discuss how lawyers are using the new standard to challenge the constitutionality of firearm laws.
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In this era of shifting tectonic precedential plates, another blockbuster ruling was issued this past summer amongst the many explosive opinions handed down by the U.S. Supreme Court that is sure to impact criminal defendants. While Second Amendment cases are rarely more than tangentially relevant to the average criminal defense practitioner, New York State Rifle & Pistol Association, Inc. v. Bruen [1] offers a new angle for fighting gun prosecutions. This article will review and explain the new standard set forth in Bruen and discuss how lawyers are using the new standard to challenge the constitutionality of federal criminal firearm laws. The article also will provide practice tips about how to incorporate the new cache of arguments into the district — and state— level litigation.
I. Bruen: Steeped in History
A. What’s the Tea?
Bruen involved a challenge to the New York handgun licensing regime. The U.S. Supreme Court ultimately ruled New York’s law violated the Second Amendment. The petitioners were two men from different parts of New York who applied for licenses that allowed the unrestricted ability to carry a handgun in public. Their applications were denied. [2]
Both petitioners were members of the New York State Rifle & Pistol Association, a group organized to defend the Second Amendment rights of New Yorkers, which then litigated the case. The respondents were Kevin Bruen, the superintendent of the New York State Police, who oversaw the enforcement of the State’s licensing law, and a New York Supreme Court justice, who oversaw the processing of licensing applications in a local county. [3]
1. New York’s Public Carry Licensing Scheme
The disputed licensing regime was a state regulation stemming from a 1905 law making it a misdemeanor for anyone over the age of 16 to possess any firearm without a license, whether inside or outside the home. In 1911, New York passed the “Sullivan Law” that prohibited the possession of all handguns — concealed or otherwise — without a government-issued license. [4]
Later it was amended to clarify the standard by which a magistrate judge could issue a license: if the applicant proved “good moral character” and “proper cause.” Otherwise, the law has not changed much.Prior to Bruen, it was a felony in New York to possess any firearm outside one’s home or business without the requisite permit, with potential punishment of four to 15 years in prison depending on whether the gun was loaded. A license must be issued by a “licensing officer” — a judge or member of law enforcement. If a person wanted to possess a firearm at home or in a place of business, the licensing officer must find that “proper cause” exists to issue it to the applicant, based on whether he is “of good moral character, has no history of crime or mental illness, and that no good cause exists for the denial of the license.” [5]
If an applicant wanted to carry outside her home or place of business, she had to obtain an unrestricted license to carry and had to prove that “proper cause” existed to issue it. [6] Without that extra showing, an applicant could only obtain a restricted license, limiting the purpose for which a firearm could be carried in public. [7] Judicial review is limited when an application is denied, so there was little recourse if a local licensing officer denied an application and/or permit.
New York is not alone in regulating the ability to carry and scope of carrying a handgun in public, but it is in a minority of six states (and the District of Columbia) that gave licensing officials discretion to deny licenses based on a perceived lack of need or suitability. [8] New York and its sister states used this discretionary framework to make the licensing officer a gatekeeper between what he deemed to be unsuitable candidates and the firearms they desired to possess.
The majority of states (43) are “shall issue” jurisdictions that automatically grant permits or licenses when the applicant has satisfied threshold requirements. The Supreme Court struck down the discretionary public carry licensing scheme in New York in Bruen because it violated the individual’s Second Amendment right to keep and bear arms.
B. The Old Standard: A Bitter Brew of Balancing Tests
Leading up to this case, the Supreme Court in Heller and McDonald previously ruled that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense, and held two laws to be unconstitutional because they prohibited the possession and use of handguns in the home. [9]
Since then, courts of appeals adopted a two-step framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. At the first step, the government could justify its regulation by “establishing that the challenged law regulates activity falling outside the scope of the right as originally understood.” [10] The appellate court then ascertains the original scope of the right based on its historical meaning. If the government can prove that the regulated conduct falls beyond the original scope of the Amendment, then the analysis ends, and the regulated activity is categorically unprotected. Without that finding, however, the courts would proceed to step two.
The second step involved a determination of how close the law comes “to the core of the Second Amendment” and the severity of the law’s burden on that right. [11] If a “core” Second Amendment right was burdened, then the courts would apply “strict scrutiny” and decide whether the law is “narrowly tailored to achieve a compelling governmental interest.” Otherwise, intermediate scrutiny would be employed to determine whether the regulation was “substantially related to the achievement of an important governmental interest.” Importantly, most appellate decisions pre-Bruen found a way to apply intermediate scrutiny and engage in a balancing test. According to Justice Thomas, who wrote the opinion in Bruen, this was a fatally defective analysis.
C. The New Standard: The Old Standard Now With Fewer Steps! Sort Of.
The Bruen majority found that the old “Step One” was the only step consistent with their prior precedent and laid out in detail why Heller and McDonald do not support applying means-end scrutiny in theSecond Amendment context.
1. Pouring a Big Cup of Heller
The lengthy opinion from Justice Thomas first summarizes Heller’s methodological approach to the Second Amendment. The Court started with a textual analysis focused on the “normal and ordinary” meaning of the Second Amendment, finding that the operative clause — “the right of the people to keep and bear Arms shall not be infringed” — guarantees the individual right to possess and carry weapons. [12] Next, the Heller majority assessed whether that conclusion was supported by the historical background of the Amendment, and canvassed the historical record for further confirmation. The historical analysis in Heller confirmed that the sources “universally support an individual right to keep and bear arms” for self-defense.
And while the Heller Court also found that the right secured by the Second Amendment is not unlimited and can prohibit the carrying of “unusual weapons,” it does protect the possession and use of weapons that are “in common use at the time.” [13] The Heller Court then turned to the handgun ban at issue and assessed whether it comported with history and tradition, finding it would fail constitutional muster under the standards of scrutiny that have been applied to enumerated constitutional rights. According to Heller’s historical analysis, the Second Amendment did not “countenance a complete prohibition on the use of the most popular weapon chosen by Americans for self-defense in the home.” [14]
2. Bruen Roasts Means-Ends Scrutiny
Relying on text and history, the Court in Heller, McDonald, and again in Bruen, repudiated any judicial inquiry into a means-ends scrutiny because:
[T]he very enumeration of the right takes out of the hands of the government — even the Third Branch of government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. … A constitutional guarantee subject to future judges assessments of its usefulness is not constitutional guarantee at all. [15]
As a result, the relevant questions are: (1) is the conduct protected by the meaning of the text of theSecond Amendment and (2) is the government’s regulation consistent with the nation’s historical tradition of firearm regulation? According to Bruen, only if the government answers these questions appropriately may a court conclude that the individual’s conduct falls outside the Amendment’s “unqualified command.” [16]
3. A Latte of History
In Bruen, the Court lays out a supposedly bright line: the test requires courts to assess “whether modern firearms regulations are consistent with the Second Amendment’s test and historical understanding.” [17] Justice Thomas said that sometimes this will be an easy and straightforward endeavor, for example: “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”
However, according to the Bruen majority, while historical analogies are relatively simple to draw, other cases implicating major technological advancements or societal changes may require “a more nuanced approach.” Acknowledging that modern regulatory challenges are different from those that the Founders in 1791 or the “Reconstruction generation” in 1868 contemplated, the Court emphasized that the SecondAmendment’s historically fixed meaning applies to new circumstances, writing that “[J]ust as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” [18] For the cases that are not straightforward, a reviewing court must conduct a historical inquiry that involves reason by analogy, “a commonplace task for any lawyer or judge.”
The Bruen Court further elaborates on the need for analogical reasoning, directing lower courts to determine whether a historical analogy is a proper analogue for a modern firearm regulation by whether the two are “relevantly similar.” [19] The Court points to two named metrics to assess which similarities are important and which are not: how and why the regulations burden a citizen’s right to armed self-defense, emphasizing that individual self-defense is the “central component” of the Second Amendment right and should be the focus of inquiry.
Bruen instructs that courts should not uphold every current law that only incidentally resembles ahistorical analogue, only a “well-established and representative historical analogue, not a historical twin.” According to the Supreme Court, even if a modern-day regulation is not a “dead ringer” for historical precursors, it still may be close enough to pass constitutional muster. The Court acknowledged that applying constitutional principles to novel modern conditions could be onerous and leave “questions at the margins,” but the Court saw “no reason why judges frequently tasked with answering these kinds of historical, analogical questions cannot do the same for Second Amendment claims.” [20] The lower courts certainly have their work cut out for them.
D. The New York Proper-Cause Requirement Is Unconstitutional
After establishing the constitutional standard for evaluating regulations implicating Second Amendment rights, the Court reviewed the New York statute to determine whether it was consistent with the Second Amendment’s text, history, and tradition of firearm regulation in the country. Spoiler alert: it was not. The Bruen Court first found that the petitioners were part of “the people” whom the Second Amendment protects, and that handguns are commonly used for self-defense today. The majority then made clear forthe first time that the Second Amendment protects the general right to carry a firearm in public, before turning to whether the licensing regulators in New York can make a case that the regulations it seeks to uphold are rooted in the “Nation’s historical tradition of firearm regulation.” [21]
After an exhaustive review of the historical sources presented by both sides, the Court concluded thatNew York failed to meet its burden of identifying an American historical tradition justifying the proper-cause requirement. As a result, the Bruen majority deemed the New York law an unconstitutional violation of the Second Amendment.
1. What Did Bruen Use to Reach Its Conclusions?
The historical analysis expounded in Bruen was a virtual honors class of 18th and 19th century sources, citing English common law, post-Civil War commentary, the Federalist Papers, and even the Statute of Northampton from 1328. Proscriptions from Colonial Massachusetts and New Hampshire to the surety statutes of antebellum America were scrutinized and dissected. There was a robust discussion of publicly armed Blacks in relation to the 1866 Freedmen’s Bureau Act, and a comparison of Reconstruction-era state public-carry restrictions and postbellum Texas state law. Rounding out the “long journey through the Anglo-American history of public carry” was a reflection on the restrictions found in the late 19th century Western Territories, and why they deserve little weight in the analysis. The lengthy history lesson undoubtedly has already been considered the meat for future legal history podcasts.
2. Now It Is the Government’s Turn to Serve It Up
While the holding of the Court was met with both cheers and hisses, its conclusion makes it crystal clear that the government has a very high burden should it seek to regulate commonly used firearms for personal defense, one which must be firmly rooted deep in English common and American common law. As Bruen instructs, “[t]he Second Amendment guaranteed to all Americans the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions” that would, for example, limit the “intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials.” [22]
From the criminal defense perspective, this high burden on the government presents another opportunity to take aim at the constitutionality of other regulations that implicate the right to possess and carry firearms. From Bruen forward, the government is going to have to come up with a law clerk’s nightmare of legislative history — remember reviewing microfiche transcripts of the Congressional Record in law school — to defend modern infringement on a foundational right.
Defense attorneys are now trying to fight for their clients in courts around the country based on thecourt’s ruling and analysis in Bruen, and they are having successes and setbacks as discussed below.
II. BRUEN DISTILLED: STILL A TWO-STEP WITH FANCY FOOTWORK
Contrary to what some commentators have said, Bruen still requires a two-step analysis when determining if a firearm regulation or criminal law violates the Constitution.
Step One: First, courts must ask a strictly textual question: does the Second Amendment’s plain text cover the defendant’s conduct? [23]
If the answer is yes, one can move to step two. If the answer is no, then the conduct is not protected by the Second Amendment and the regulation is lawful.
Step Two: Second, the government must justify its regulation as consistent with the history and traditions of firearm regulation in the country based on evidence at or near the time the Second Amendment was ratified in 1791. [24]
Step two starts with this question: does the regulation address a longstanding “perceived societal problem” that the founders could have addressed but either (a) did not address or (b) addressed through materially different means? [25] If yes, then the modern regulation violates the Second Amendment and is unconstitutional unless it is “distinctly similar” to the historical regulations. Keep in mind that many court decisions to date elide this “distinctly similar” requirement and look simply for analogues. The authors think that is a misreading of Bruen and counsel has to fight for a showing of distinct similarity.
However, if the “societal problem” addressed by the firearm regulation is “unprecedented,” so much that it would have been “unimaginable at the founding” or is a result of “dramatic technological changes,” the historical analysis becomes more complicated. [26] In these “unprecedented” (as of 1791) problem cases, the government may point to an analogous regulation as evidence that the modern firearm restriction is constitutional. The government bears the burden to prove that the modern law is “relevantly similar” to its historical analogue; otherwise, the law must be struck down.
Criminal defense attorneys must remember: Courts and defendants “are not obliged to sift the historical materials for evidence to sustain [a] statute. That is [the government’s] burden.” [27] Isn’t that nice for a change?
III. BRUEN IS PERCOLATING: CASES OF INTEREST POST-BRUEN
Nobody thought courts would start striking down federal criminal firearm laws after Bruen. That was wrong. A number of notable decisions have come from federal district courts and even one U.S. Court of Appeals in the six months after Bruen. Here are some of the relevant cases of interest: [28]
United States v. Quiroz. [29] One of the most significant of Bruen federal decisions. This district court held that the law making it illegal to buy a gun while under an indictment was unconstitutional. All practitioners should start by reading this decision even though it skips over the “distinctly similar” analysis. [30]
United States v. Price. [31] District court strikes down as unconstitutional a law that criminalized possession of gun with anobliterated serial number. But the court upheld felon-in-possession restrictions under § 922(g).
United States v. Bollock. [32] Court order asking parties if consulting expert historian should be appointed to assist the judge underFed. R. Evid. 706. [33]
United States v. Perez-Gallan. [34] Striking down § 922(8) (possessing gun while subject to a court order) as unconstitutional.
United States v. Stambaugh. [35] Striking down § 922(n) (receipt of gun while under indictment) as unconstitutional.
Range v. AG United States. [36] Third Circuit case holding (1) felons are not part of “the people” protected by the Second Amendment and (2) even if they were, § 922(g) restrictions would still be appropriate. [37]
United States v. Jesus Garcia. [38] Interlocutory appeal of pretrial release order that includes a ban on firearm possession. This case has drawn a number of high-profile amici and is currently set for oral argument on Jan. 26, 2022, before a panel of the Ninth Circuit.
IV. WHAT TO DO WITH BRUEN FROM HERE?
At the time of writing this article, the authors could find no successful challenges to § 922(g). That does not mean that criminal defense practitioners should abandon all hope when challenging so-called status-based restrictions (felony conviction or misdemeanor equivalent).
First, practitioners should be prepared to define the playing field as narrowly as possible when making these challenges. Justice Thomas went to great lengths in Bruen to reject attempts by New York to use disparate historical regulations to broadly characterize a sensitive places exception to publicly carrying firearms.
Instead, Bruen endorsed a minimalist approach when assessing whether or not there is a historical tradition of Second Amendment exceptions that supports a current firearm regulation. Bruen specifically made clear that Second Amendment exceptions should proceed just as cautiously as exceptions to freedom of speech in the First Amendment context. Remember, if there is a “general societal problem”that has existed since the 18th century, then the government must point to a “distinctly similar” regulation to uphold the challenged modern law! Do not let the court or the government get away with just moving on to historical analogues if the law is addressing a long-standing problem that existed at the time of the Founding.
Expect the government to try and point to historical evidence that it claims supports a conclusion that “dangerous” or “unvirtuous” groups do not enjoy the right to keep and bear arms under the Second Amendment. This is the path the Range majority recently went down. Argue that “the people”encompasses all members of the national community and not some specific subset.
A strong counterargument should focus on the text of Bruen and what the majority rejected. Bruen, for example, rejected the use of a few historical analogues to then find a broad principle that carved out Second Amendment protections. More importantly, these terms are highly malleable, and counsel should argue that current restrictions (i.e., drug addict possession of a firearm) are not distinctly similar to historical analogues and there was already such a general societal problem at the time of the Founding. There are also arguments to be made that the historical regulations typically did not deal with permanent disarmament.
It is expected that many of the current firearm restrictions found in the federal code are subject to challenge and will begin to fall in the coming years. Persons convicted of misdemeanor family violence? Users of or people addicted to unlawful drugs? Most non-citizens? Dishonorably discharged service members? Just possessing ammunition? Subject to a temporary restraining order? Short-barreled shotgun? Firearm not consistent with the NFA? Producing ghost guns? Possessing only a small part of a gun?
All of these status-based restrictions (and more) are now subject to nonfrivolous legal challenges on constitutional grounds after Bruen. [39] There is also room for nonstatus-based challenges such as NFA regulations and other similar firearm criminal laws. Defense attorneys should start raising these challenges in motions to dismiss even if initially it may seem futile. This will allow current and future clients to preserve the issue for later appellate or perhaps even collateral review as the law evolves. If there are questions about how to make these challenges or how the law is evolving, defense attorneys should not hesitate to ask colleagues, the authors, or the local Federal Public Defender.
About the Authors
Zachary Newland is a Colorado-based federal criminal defense lawyer who focuses on complex litigation.
Zachary L. Newland (NACDL Member)
Newland Legal, PLLC
Evergreen, Colorado
Catherine Turner has practiced criminal defense exclusively for over 16 years. She is a presenter at legalseminars and has been certified as a Criminal Law Specialist by the Minnesota State Bar Association.
Catherine Turner (NACDL Member)
MSBA Certified Criminal Law Specialist
Minneapolis, Minnesota
https://feddefense.com
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[1] N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2127, 213 L. Ed. 2d 387 (2022).
[2] Id. at 2125.
[3] Id.
[4] Id. at 2122 (citing 1095 Y. Laws ch. 92, § 2, pp. 129-130; see also 1908 N.Y. Laws ch. 93, § 1, pp. 242-243.
[5] Id. at 2123.
[6] Id.
[7] Id.
[8] Id.
[9] See District of Columbia v. Heller, 554 U.S. 570 (2008); and McDonald v. Chicago, 561 U.S. 742 (2012).
[10] Bruen, 142 S. Ct. at 2126, citing Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019).
[11] Id.
[12] Id. at 2127, citing Heller, 554 U.S. at 576-577.
[13] Id. at 2128.
[14] Id.
[15] Bruen, 142 S. Ct. at 2129.
[16] Id. at 2130.
[17] Id. at 2131.
[18] Id. at 2132.
[19] The first question requires evaluating “distinctly similar” regulations for general societal problems that have existed since the 18th century.
[20] Id. at 2134 (quoting Kavanaugh’s dissent in Heller at the appellate court level: 670 F.3d 1244, 1275 (D.C.Cir. 2011).
[21] Id. at 2156.
[22] Id.
[23] Bruen at 2129-30.
[24] N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2127, 213 L. Ed. 2d 387 (2022).
[25] Id. at 2131.
[26] United States v. Price, No. 2:22-cr-00097, 2022 U.S. Dist. LEXIS 186571, at *10 (S.D. W. Va. Oct. 12, 2022).
[27] Bruen at 2150.
[28] This article focuses only on federal decisions. Additionally, the piece does not address the dozens of decisions upholding various federal criminal firearm statutes post-Bruen.
[29] United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 U.S. Dist. LEXIS 168329 (W.D. Tex. Sep. 19, 2022).
[30] The government has appealed to the Fifth Circuit; that case is still pending as of January 2023.
[31] United States v. Price, No. 2:22-cr-00097, 2022 U.S. Dist. LEXIS 186571 (S.D. W. Va. Oct. 12, 2022).
[32] United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2022 U.S. Dist. LEXIS 203513 (S.D. Miss. Oct. 27, 2022).
[33] Parties’ response to the court’s invitation to appoint a consulting expert historian is due no later than Dec. 12, 2022.
[34] United States v. Perez-Gallan, No. PE:22-CR-00427-DC, 2022 U.S. Dist. LEXIS 204758 (W.D. Tex. Nov. 10, 2022).
[35] United States v. Stambaugh, No. CR-22-00218-PRW-2, 2022 U.S. Dist. LEXIS 206016 (W.D. Okla. Nov. 14, 2022).
[36] Range v. AG United States, No. 21-2835, 2022 U.S. App. LEXIS 31614 (3d Cir. Nov. 16, 2022).
[37] The case is still pending, and time to seek en banc review has not expired. Expect the appellant to seek SCOTUS review.
[38] United States v. Jesus Perez Garcia, No. 22-50314 (9th Cir. 2023).
[39] See https://sentencing.typepad.com/sentencing_law_and_policy/2022/06/are-broad-drug-user-gun-dispossession-statutes-now-constitutionally-suspect-after-bruen.html (last checked Dec. 6, 2022).
