Judges clash over history a year after Supreme Court upended how courts decide Second Amendment cases—‘the whole thing puzzles me’
The Supreme Court last summer sought to clarify its expansive reading of the Second Amendment. Instead, it set off chaos.
The decision in New York State Rifle and Pistol Association v. Bruen decreed that gun-control laws of today must have a clear forerunner in weapons regulations around the time of the nation’s infancy, regardless of the modern public-safety rationale behind them.
The result: Hundreds of gun cases litigated in recent months have become a free-for-all, with lower courts conflicted or confounded about how and where to draw limits on gun rights.
“There’s all this picking and choosing of historical evidence. ‘This is too early. This is too late. Too small, too big,’” Judge Gerard Lynch of the Second U.S. Circuit Court of Appeals said during a recent argument about a new law in New York that prohibits guns in sensitive places like parks, museums and bars. “The whole thing puzzles me.”
In that case, the right of licensed handgun owners to carry weapons into bars and theaters could hinge on 19th-century statutes that barred drunks from carrying firearms, and outlawed guns and butcher knives in social parties attended by ladies. A case decided last fall held that the federal ban on guns with obliterated serial numbers was unconstitutional because unmarked guns were perfectly legal in the 18th century.
The Bruen case launched the upheaval. In that decision, the Supreme Court said New York couldn’t require concealed-carry applicants to prove a dire need for self-protection. The 6-3 opinion, written by Justice Clarence Thomas and endorsed by five fellow conservatives, said the restrictive licensing rules violated the Second Amendment right of ordinary, law-abiding citizens to carry handguns for self-defense.
The opinion rejected the practice of lower courts considering the public-safety intentions of gun laws being challenged. The courts often found that the government’s goal of curbing gun crimes and mass shootings outweighed the liberty interests of gun owners.
That practice watered down gun rights, the opinion said. Instead, Thomas wrote, to pass constitutional muster, gun restrictions within the scope of the Second Amendment must be deeply rooted in historical precedent. Governments defending them bear the burden of showing that their laws are similar, or at least analogous, to firearm regulations widely enforced around the time of Second Amendment’s ratification in 1791.
The decision, along with recent Supreme Court cases overturning abortion rights and protecting religious expression in the public sphere, reflects the conservative majority’s emphasis on history and tradition as the arbiter of constitutional conflicts.
Judges often engage in historical inquiries to interpret constitutional text and figure out the scope of protected rights and governmental powers. But in Bruen, never before had the high court demanded such a rigid reliance on historical evidence to settle questions about a core constitutional right.
“What I don’t think I’ve ever seen elsewhere is a demand by the court that every single difficult case be resolved by a historical record that contains so little information,” said Nelson Lund, a George Mason University legal scholar who has written critically of the Bruen decision.
Rampant disagreement
The Bruen decision was a sequel to the late Justice Antonin Scalia’s 2008 opinion in District of Columbia v. Heller that first held that the Second Amendment protects an individual right to keep and bear arms for self-defense, not just the right of states to form militias. The 5-4 Heller decision was a defining moment for originalism, the judicial philosophy championed by Scalia that says judges should interpret constitutional provisions according to their meaning at the time they were adopted.
The Bruen decision extended Heller’s understanding of the Second Amendment’s text with the added constraint of the historical test.
Judges are at odds about how to use centuries-old weapons laws, many obscure, to evaluate modern-day restrictions and firearm offenses.
Some courts upholding the federal gun ban on pot users say the law is consistent with the tradition of keeping guns away from the mentally ill or unvirtuous citizens. Other courts declared the ban unconstitutional, citing a dearth of evidence that 18th- and 19th-century Americans who consumed intoxicating substances forfeited their gun rights.
A similar split has emerged over whether the government can disarm individuals subject to domestic-violence protection orders. A New Orleans-based federal appeals court said no, finding no parallel treatment of abusive spouses in early-American codes. Weeks later, a federal judge in California concluded the opposite, drawing on 19th-century statutes requiring individuals deemed a threat to public safety to post bonds before carrying weapons in public. The Supreme Court will take up the issue in its next term, which begins in October.
In 1791, when the Second Amendment was ratified along with the rest of the Bill of Rights, the nation was a preindustrial, largely agrarian society. Americans armed themselves with single-shot flintlocks whose cumbersome reloading and inaccuracy beyond a short range made them far less deadly than today’s semiautomatic firearms.
Founding-era weapons laws, a complete list of which is still being assembled by academic researchers, were concerned with gunpowder storage, preventing accidents and keeping guns away from slaves, Native Americans and British loyalists.
Thomas’s opinion in the Bruen decision also suggested that laws in existence around 1868—when the 14th Amendment was ratified to protect federal rights from infringement by state governments—could serve as a historical baseline.
“This Court is not a trained historian,” U.S. District Judge Carlton Reeves of Mississippi wrote in an order last fall. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.” He floated the idea of appointing a historian as a consulting expert to assist him.
The Bruen case has placed a wide range of federal and state gun regulations in jeopardy. In the past year, judges have ruled against bans on AR-15 assault rifles, laws restricting adults under 21 from purchasing or carrying handguns in public and other gun-control measures found to be lacking in historical tradition.
C ourts have also slashed away at the federal Gun Control Act, originated in 1968, the once-presumed-untouchable law that makes it illegal for certain classes of people to possess firearms, including domestic abusers, drug users and those under felony indictment.
U.S. District Judge Robert L. Miller last fall dismissed charges against a man who attempted to buy a gun from an Indiana pawnshop while under indictment. Though the government had been restricting firearm use by people under indictment since as far back as 1938, the judge said, that didn’t prove a historical tradition under Bruen.
In the decision’s concluding paragraphs, Miller said he earnestly hoped that he had misunderstood the Supreme Court’s new command. “If not, most of the body of law Congress has developed to protect both public safety and the right to bear arms might well be unconstitutional,” he wrote.
Historians as witnesses
The case has given firearms historians new roles as key witnesses. California and other pro-gun-control states have assembled a roster of gun historians—compensating some at a rate of $500 an hour—to scavenge databases and newspaper archives for historic gun laws and render their opinion on them.
Days after the Bruen decision, political scientist Robert Spitzer got an email from the California attorney general’s office looking for help in defending the state’s 10-round limit on magazine capacity and restrictions on AR-15s. The professor, a retired academic who authored several books about American gun policy and the history of gun regulations, would be retained by more than 10 other states in the months that followed.
“It’s been nearly a full-time occupation for me,” Spitzer said. He has dug deep into archaic restrictions on Bowie knives—the folklore-famed combat knife wielded by street brawlers and duelers—and spring guns—tripwire-rigged booby traps also known as trap guns that were once deployed against rabbit thieves and trespassers.
Courts have looked at those old laws as possible analogues to AR-15 crackdowns. California argues laws on spring guns are “particularly analogous” to its AR-15 ban in their goal of protecting the public from “unnecessary gunshot injuries.”
Gun-rights groups have recruited their own historians. They include Ashley Hlebinsky, a founder of University of Wyoming law school’s new center for gun research and a former curator of one of the largest firearms museums in the country. The groups have also turned to Clayton Cramer, an adjunct community college instructor in Idaho known for exposing errors in another scholar’s work on American gun culture and colonial-era gun ownership.
The dueling teams of historians have clashed in court papers, accusing each other of mischaracterizing past arms regulations. Spitzer and Cramer leveled accusations of shoddy scholarship at each other in a lawsuit challenging Chicago suburb Highland Park’s ban on assault weapons.
In federal court rulings from Delaware, Washington state and Illinois that refused to block assault-weapon bans, judges said the crackdown on semiautomatic rifles resembled 19th-century restrictions on the carrying of Bowie knives.
“The ‘craze’ for these knives led to their widespread use in fights, duels, and other criminal activities,” wrote U.S. District Judge Richard Andrews of Delaware in March. “As violent crime increased during the early nineteenth century, states responded with anti-knife legislation.”
In late April, however, a different federal judge in Illinois, U.S. District Judge Stephen McGlynn of East St. Louis, Ill., ruled against the state’s assault-weapons ban, rejecting the comparison to old Bowie laws. The analogy failed, he said, because the Bowie statutes didn’t criminalize possession of the weapon—unlike Illinois’s law—but mostly restricted the carrying of concealed knives in public places.
Illinois, the judge said, enacted the law months after a gunman shot up an Independence Day parade in Highland Park. “Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific?” wrote Judge McGlynn. “Likely no,” he answered. A federal appeals court in Chicago is now reviewing the state law.
Gun rights of felons
A federal appeals court in Philadelphia recently reviewed a federal law disarming people convicted of felonies and serious misdemeanors. It upheld the gun rights of a Pennsylvania man forbidden from arming himself because he once committed food-stamp fraud decades ago. In doing so, the court rejected analogies to early-American state laws confiscating firearms from Blacks, Native Americans, Catholics, Quakers and British loyalists.
Judge Reeves of Mississippi upheld in June the gun rights of a man convicted of aggravated assault and manslaughter, saying he was following the high court’s reasoning in Bruen. But a federal appeals court based in St. Louis affirmed the indictment of a convicted drug dealer for illegal gun possession. The court noted that in the late 1700s nonviolent crimes such as horse theft or forgery were capital offenses—and in such a punishment one loses the right to bear arms.
The Biden administration hopes the case the Supreme Court will hear in the coming term will result in gun prohibitions being retained on individuals subject to domestic-violence protective orders.
Gun rights of felons
A federal appeals court in Philadelphia recently reviewed a federal law disarming people convicted of felonies and serious misdemeanors. It upheld the gun rights of a Pennsylvania man forbidden from arming himself because he once committed food-stamp fraud decades ago. In doing so, the court rejected analogies to early-American state laws confiscating firearms from Blacks, Native Americans, Catholics, Quakers and British loyalists.
Judge Reeves of Mississippi upheld in June the gun rights of a man convicted of aggravated assault and manslaughter, saying he was following the high court’s reasoning in Bruen. But a federal appeals court based in St. Louis affirmed the indictment of a convicted drug dealer for illegal gun possession. The court noted that in the late 1700s nonviolent crimes such as horse theft or forgery were capital offenses—and in such a punishment one loses the right to bear arms.
The Biden administration hopes the case the Supreme Court will hear in the coming term will result in gun prohibitions being retained on individuals subject to domestic-violence protective orders.
The Supreme Court last summer sought to clarify its expansive reading of the Second Amendment. Instead, it set off chaos.
The decision in New York State Rifle and Pistol Association v. Bruen decreed that gun-control laws of today must have a clear forerunner in weapons regulations around the time of the nation’s infancy, regardless of the modern public-safety rationale behind them.
The result: Hundreds of gun cases litigated in recent months have become a free-for-all, with lower courts conflicted or confounded about how and where to draw limits on gun rights.
“There’s all this picking and choosing of historical evidence. ‘This is too early. This is too late. Too small, too big,’” Judge Gerard Lynch of the Second U.S. Circuit Court of Appeals said during a recent argument about a new law in New York that prohibits guns in sensitive places like parks, museums and bars. “The whole thing puzzles me.”
In that case, the right of licensed handgun owners to carry weapons into bars and theaters could hinge on 19th-century statutes that barred drunks from carrying firearms, and outlawed guns and butcher knives in social parties attended by ladies. A case decided last fall held that the federal ban on guns with obliterated serial numbers was unconstitutional because unmarked guns were perfectly legal in the 18th century.
The Bruen case launched the upheaval. In that decision, the Supreme Court said New York couldn’t require concealed-carry applicants to prove a dire need for self-protection. The 6-3 opinion, written by Justice Clarence Thomas and endorsed by five fellow conservatives, said the restrictive licensing rules violated the Second Amendment right of ordinary, law-abiding citizens to carry handguns for self-defense.
The opinion rejected the practice of lower courts considering the public-safety intentions of gun laws being challenged. The courts often found that the government’s goal of curbing gun crimes and mass shootings outweighed the liberty interests of gun owners.
That practice watered down gun rights, the opinion said. Instead, Thomas wrote, to pass constitutional muster, gun restrictions within the scope of the Second Amendment must be deeply rooted in historical precedent. Governments defending them bear the burden of showing that their laws are similar, or at least analogous, to firearm regulations widely enforced around the time of Second Amendment’s ratification in 1791.
The decision, along with recent Supreme Court cases overturning abortion rights and protecting religious expression in the public sphere, reflects the conservative majority’s emphasis on history and tradition as the arbiter of constitutional conflicts.
Judges often engage in historical inquiries to interpret constitutional text and figure out the scope of protected rights and governmental powers. But in Bruen, never before had the high court demanded such a rigid reliance on historical evidence to settle questions about a core constitutional right.
“What I don’t think I’ve ever seen elsewhere is a demand by the court that every single difficult case be resolved by a historical record that contains so little information,” said Nelson Lund, a George Mason University legal scholar who has written critically of the Bruen decision.
Rampant disagreement
The Bruen decision was a sequel to the late Justice Antonin Scalia’s 2008 opinion in District of Columbia v. Heller that first held that the Second Amendment protects an individual right to keep and bear arms for self-defense, not just the right of states to form militias. The 5-4 Heller decision was a defining moment for originalism, the judicial philosophy championed by Scalia that says judges should interpret constitutional provisions according to their meaning at the time they were adopted.
The Bruen decision extended Heller’s understanding of the Second Amendment’s text with the added constraint of the historical test.
Judges are at odds about how to use centuries-old weapons laws, many obscure, to evaluate modern-day restrictions and firearm offenses.
Some courts upholding the federal gun ban on pot users say the law is consistent with the tradition of keeping guns away from the mentally ill or unvirtuous citizens. Other courts declared the ban unconstitutional, citing a dearth of evidence that 18th- and 19th-century Americans who consumed intoxicating substances forfeited their gun rights.
A similar split has emerged over whether the government can disarm individuals subject to domestic-violence protection orders. A New Orleans-based federal appeals court said no, finding no parallel treatment of abusive spouses in early-American codes. Weeks later, a federal judge in California concluded the opposite, drawing on 19th-century statutes requiring individuals deemed a threat to public safety to post bonds before carrying weapons in public. The Supreme Court will take up the issue in its next term, which begins in October.
In 1791, when the Second Amendment was ratified along with the rest of the Bill of Rights, the nation was a preindustrial, largely agrarian society. Americans armed themselves with single-shot flintlocks whose cumbersome reloading and inaccuracy beyond a short range made them far less deadly than today’s semiautomatic firearms.
Founding-era weapons laws, a complete list of which is still being assembled by academic researchers, were concerned with gunpowder storage, preventing accidents and keeping guns away from slaves, Native Americans and British loyalists.
Thomas’s opinion in the Bruen decision also suggested that laws in existence around 1868—when the 14th Amendment was ratified to protect federal rights from infringement by state governments—could serve as a historical baseline.
“This Court is not a trained historian,” U.S. District Judge Carlton Reeves of Mississippi wrote in an order last fall. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.” He floated the idea of appointing a historian as a consulting expert to assist him.
The Bruen case has placed a wide range of federal and state gun regulations in jeopardy. In the past year, judges have ruled against bans on AR-15 assault rifles, laws restricting adults under 21 from purchasing or carrying handguns in public and other gun-control measures found to be lacking in historical tradition.
C ourts have also slashed away at the federal Gun Control Act, originated in 1968, the once-presumed-untouchable law that makes it illegal for certain classes of people to possess firearms, including domestic abusers, drug users and those under felony indictment.
U.S. District Judge Robert L. Miller last fall dismissed charges against a man who attempted to buy a gun from an Indiana pawnshop while under indictment. Though the government had been restricting firearm use by people under indictment since as far back as 1938, the judge said, that didn’t prove a historical tradition under Bruen.
In the decision’s concluding paragraphs, Miller said he earnestly hoped that he had misunderstood the Supreme Court’s new command. “If not, most of the body of law Congress has developed to protect both public safety and the right to bear arms might well be unconstitutional,” he wrote.
Historians as witnesses
The case has given firearms historians new roles as key witnesses. California and other pro-gun-control states have assembled a roster of gun historians—compensating some at a rate of $500 an hour—to scavenge databases and newspaper archives for historic gun laws and render their opinion on them.
Days after the Bruen decision, political scientist Robert Spitzer got an email from the California attorney general’s office looking for help in defending the state’s 10-round limit on magazine capacity and restrictions on AR-15s. The professor, a retired academic who authored several books about American gun policy and the history of gun regulations, would be retained by more than 10 other states in the months that followed.
“It’s been nearly a full-time occupation for me,” Spitzer said. He has dug deep into archaic restrictions on Bowie knives—the folklore-famed combat knife wielded by street brawlers and duelers—and spring guns—tripwire-rigged booby traps also known as trap guns that were once deployed against rabbit thieves and trespassers.
Courts have looked at those old laws as possible analogues to AR-15 crackdowns. California argues laws on spring guns are “particularly analogous” to its AR-15 ban in their goal of protecting the public from “unnecessary gunshot injuries.”
Gun-rights groups have recruited their own historians. They include Ashley Hlebinsky, a founder of University of Wyoming law school’s new center for gun research and a former curator of one of the largest firearms museums in the country. The groups have also turned to Clayton Cramer, an adjunct community college instructor in Idaho known for exposing errors in another scholar’s work on American gun culture and colonial-era gun ownership.
The dueling teams of historians have clashed in court papers, accusing each other of mischaracterizing past arms regulations. Spitzer and Cramer leveled accusations of shoddy scholarship at each other in a lawsuit challenging Chicago suburb Highland Park’s ban on assault weapons.
In federal court rulings from Delaware, Washington state and Illinois that refused to block assault-weapon bans, judges said the crackdown on semiautomatic rifles resembled 19th-century restrictions on the carrying of Bowie knives.
“The ‘craze’ for these knives led to their widespread use in fights, duels, and other criminal activities,” wrote U.S. District Judge Richard Andrews of Delaware in March. “As violent crime increased during the early nineteenth century, states responded with anti-knife legislation.”
In late April, however, a different federal judge in Illinois, U.S. District Judge Stephen McGlynn of East St. Louis, Ill., ruled against the state’s assault-weapons ban, rejecting the comparison to old Bowie laws. The analogy failed, he said, because the Bowie statutes didn’t criminalize possession of the weapon—unlike Illinois’s law—but mostly restricted the carrying of concealed knives in public places.
Illinois, the judge said, enacted the law months after a gunman shot up an Independence Day parade in Highland Park. “Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific?” wrote Judge McGlynn. “Likely no,” he answered. A federal appeals court in Chicago is now reviewing the state law.
Gun rights of felons
A federal appeals court in Philadelphia recently reviewed a federal law disarming people convicted of felonies and serious misdemeanors. It upheld the gun rights of a Pennsylvania man forbidden from arming himself because he once committed food-stamp fraud decades ago. In doing so, the court rejected analogies to early-American state laws confiscating firearms from Blacks, Native Americans, Catholics, Quakers and British loyalists.
Judge Reeves of Mississippi upheld in June the gun rights of a man convicted of aggravated assault and manslaughter, saying he was following the high court’s reasoning in Bruen. But a federal appeals court based in St. Louis affirmed the indictment of a convicted drug dealer for illegal gun possession. The court noted that in the late 1700s nonviolent crimes such as horse theft or forgery were capital offenses—and in such a punishment one loses the right to bear arms.
The Biden administration hopes the case the Supreme Court will hear in the coming term will result in gun prohibitions being retained on individuals subject to domestic-violence protective orders.
Gun rights of felons
A federal appeals court in Philadelphia recently reviewed a federal law disarming people convicted of felonies and serious misdemeanors. It upheld the gun rights of a Pennsylvania man forbidden from arming himself because he once committed food-stamp fraud decades ago. In doing so, the court rejected analogies to early-American state laws confiscating firearms from Blacks, Native Americans, Catholics, Quakers and British loyalists.
Judge Reeves of Mississippi upheld in June the gun rights of a man convicted of aggravated assault and manslaughter, saying he was following the high court’s reasoning in Bruen. But a federal appeals court based in St. Louis affirmed the indictment of a convicted drug dealer for illegal gun possession. The court noted that in the late 1700s nonviolent crimes such as horse theft or forgery were capital offenses—and in such a punishment one loses the right to bear arms.
The Biden administration hopes the case the Supreme Court will hear in the coming term will result in gun prohibitions being retained on individuals subject to domestic-violence protective orders.
