At SCOTUSblog, Pete Patterson (Cooper & Kirk): How courts keep getting Bruen wrong. From the introduction:
In the landmark 2022 case of New York State Rifle & Pistol Association v. Bruen, the Supreme Court struck down New York’s concealed carry law as inconsistent with the Second Amendment. In doing so, the court established a two-step analysis for determining whether one’s rights had been violated. Only several years later circuit courts keep misconstruing this test and confusing what Bruen actually held, perhaps most prominently in cases relating to the commercial sale of firearms. So where have they gone wrong?
***
The Second Amendment’s operative clause provides that “the right of the people to keep and bear Arms, shall not be infringed.” In 2008’s District of Columbia v. Heller, the court made clear that this protects an individual right to keep a handgun in one’s home for self-defense. Approximately 14 years later, in Bruen, the Supreme Court established a two-step, text-first, history-second test for analyzing claims that a law violates the Second Amendment.
At the first step, courts ask whether the Second Amendment’s “plain text” covers the conduct regulated by the challenged law. As the court clarified in the case of Wolford v. Lopez, decided this term, this is a simple and straightforward linguistic inquiry. The key terms are “people,” “Arms,” and “keep and bear.” A law implicates the plain text of those terms if it “appl[ies] to the people,” “concern[s] any form of Arms,” and “place[s] any restrictions on either the … possession … or the … carrying … of arms.” In other words, it is a simple question of whether the law in question regulates conduct that falls within the plain-text meaning of the terms used in the Second Amendment. If it does, then the regulation is “presumptively unconstitutional” – i.e., it presumptively infringes the right. In this way the analysis is much like the analysis of First Amendment claims, as laws that regulate speech presumptively abridge the freedom of speech.
If Bruen’s first step is satisfied, the analysis then proceeds to the second step to determine whether the challenged law ultimately infringes the right. To prevail at this step, the government must demonstrate that the challenged regulation “is consistent with the Nation’s historical tradition of firearm regulation.” As the court explained in Wolford, the government can do so by pointing to “widespread, well-known, and widely accepted” historical laws that demonstrate historical limits on the scope of the right. If the government can make such a showing, a court may then conclude that even though a law regulates conduct within the literal terms of the Second Amendment, it does not infringe the right to keep and bear arms. Again, the analysis is similar to that under the First Amendment. As the court explained in 2011’s Brown v. Entertainment Merchants Association, there are certain “well-defined and narrowly limited classes of speech” – such as obscenity, incitement, and fighting words – “the prevention and punishment of which have never been thought to raise any Constitutional problem.” Thus, while speech in these categories is speech, it can be regulated without abridging the freedom of speech.
In the recent case of United States v. Berger, a U.S. Court of Appeals for the 3rd Circuit panel nonetheless reached the conclusion that a challenge to a conviction under the National Firearms Act, which mandates that individuals register with the government and (at the relevant time) pay taxes on certain categories of firearms, failed at “Bruen’s step one” and that this challenge therefore did not even present a Second Amendment case. This conclusion is startling. But it reflects a mode of analysis that is proliferating throughout the federal circuits. In Rocky Mountain Gun Owners v. Polis, the U.S. Court of Appeals for the 10th Circuit held that a challenge to a Colorado ban on firearm purchases by 18-20-year-olds failed at Bruen step one. And in Beckwith v. Frey, the U.S. Court of Appeals for the 1st Circuit similarly rejected at Bruen’s first step a challenge to a Maine law subjecting firearm purchases to a 72-hour cooling-off period.
Posted at 6:07 AM