June brought two Second Amendment decisions. In United States v. Hemani, the court unanimously sustained Ali Hemani’s challenge to his indictment under 18 U.S.C. § 922(g)(3), for possessing firearms while being an unlawful user of a controlled substance. And in Wolford v. Lopez, the court held unconstitutional a Hawaii law that requires concealed-carry permit holders to obtain property owners’ express permission before carrying a firearm onto private property held open to the public.
These outcomes did not come as much of a surprise after oral arguments, and both decisions are framed, properly, as narrow answers to the specific questions before the Supreme Court. Section 922(g)(3) remains on the books, and we have little in the way of express guidance on the “sensitive place” legislation on which states have largely relied to restrict carriage of firearms in locations such as parks and public transportation.
Still, these are important decisions, and they provide unmistakable guidance that ought to lead to sounder adjudication of Second Amendment claims in the lower courts. Here are three important take-aways.
I. Bruen is here to stay.
In 2022, the Supreme Court reset Second Amendment litigation by announcing a new test for adjudicating such challenges. To begin, the person challenging the law must show that the conduct it regulates or prohibits falls within the plain text of the amendment. Then, the burden shifts to the government to show that the law is consistent with “the Nation’s historical tradition of firearm regulation.” That test, known as the Bruen test after the case name (New York State Rifle and Pistol Association v. Bruen), was in many respects more demanding than the test lower courts had been using to adjudicate Second Amendment challenges. Among other things, the test barred judges from turning challengers away because the judges believed that the benefits of the law justified the burden on the rights holder. And because firearm regulations were sparse in the nation’s early years, government parties have struggled, and will continue to struggle, to find early regulations that match many modern ones.
Nevertheless, two years later, in United States v. Rahimi, the Supreme Court rejected a challenge to 18 U.S.C. § 922(g)(8) – which disarms individuals under a domestic violence restraining order – despite the fact that the law lacked obvious antecedents in the nation’s historical tradition of firearm regulation. The court held that the law, rather, is “consistent with the principles that underpin [the nation’s] regulatory tradition.” The decision led many to speculate that the court was backing away from Bruen’s demanding test. When it comes to common-sense measures like disarming abusive boyfriends, the court seemed like it was not going to be too picky about the government’s historical evidence.
The court’s decision in Hemani ought to dispel the impression that the court is retreating from Bruen’s test. Justice Neil Gorsuch’s opinion for the court subjects the government’s historical evidence to exacting scrutiny, carefully dissecting the “how” and “why” of the founding-era regulations the government cited to support Section 922(g)(3). Consider the following illustrative passage:
The government . . . contends that § 922(g)(3) disarms unlawful drug users to protect the public from “unusually dangerous” individuals who will “misuse . . . firearms” to commit “violent crime[s].” And, the government submits, early American vagrancy . . . laws shared a similar purpose. But . . . the government misapprehends the purposes animating the historical analogues it invokes. Usually, they had little to do with protecting the public from categorically violent and unusually dangerous persons. . . . As a rule, they targeted individuals who “did not meet the societal expectation of work.” Routinely, that category included not just habitual drunkards but also “Vagabonds, Common Beggars,” “pipers, fidlers, . . . stubborn servants or children, [and] common nightwalkers.” . . . [L]aws like these might have sought to promote productivity and suppress any number of real or perceived vices. But they scarcely focused on protecting the public from a “categor[y]” of “unusually dangerous” persons.
What is more, this analysis seems not to have been too controversial: it commanded the votes of six of Gorsuch’s colleagues, including Bruen skeptics Justices Sonia Sotomayor and Ketanji Brown Jackson. Only Justices Samuel Alito and Elena Kagan declined to join, and even they agreed with the majority that the government’s historical evidence was not up to snuff. And Alito authored the majority in Wolford, which takes a similarly skeptical approach to Hawaii’s historical evidence. Neither opinion is shy about applying the Bruen test.
II. Words have meaning.
The Bruen test takes the text of the Second Amendment seriously. It does so by creating a presumption that any law that burdens the conduct described by the words of that amendment – "keep[ing] and bear[ing] Arms” by a member of “the People” – is unconstitutional.
Both Hemani and Wolford confirm that those words mean what they plainly say. True, as the court has consistently recognized, the right to keep and bear arms is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” History reveals that governments may limit the keeping and carrying of weapons to some extent without infringing the right. That is why, at the second step of the Bruen test, the government may overcome the presumption of unconstitutionality by pointing to a historical tradition of firearm regulation that its own regulation follows.
But some lower courts have continued to incorporate historical traditions into the first step of the Bruen test, subjecting the words “people,” “keep,” “bear,” and “arms,” to silent qualifications a rights holder must overcome before the burden shifts to the government. For example, some have argued that because there is a historical tradition of (temporarily) disarming some lawbreakers, lawbreakers must not be part of “the people” whose rights the Second Amendment secures. A lawbreaker, therefore, does not get the benefit of a presumption of unconstitutionality when he encounters a limit on his ability to keep and bear arms. Hemani quietly dispatches that argument by treating it as uncontroversial that Hemani – though a lawbreaker – is a member of “the People.” (This will have important implications for challenges to a federal law that disarms felons.)
Wolford confronts the problem more explicitly. In that case, Hawaii argued that the law’s challengers faltered at Bruen’s first step because “the right to bear arms did not encompass the right to armed entry onto private property without the owner’s consent.” To back that claim up, the state offered “a lengthy discussion of historical materials and precedents.” The court’s response was unambiguous: “these authorities . . . are out of place at Bruen’s first step. At that stage, as we have explained, the question is simply whether a challenged law falls within the Second Amendment’s ‘plain text.’” On to the second step.
III. The government’s burden is factual, as well as legal.
At Bruen’s second step, the government must situate the law it is defending within the nation’s historical tradition of firearm regulation. One way to do that is to show that the law limits the keeping and bearing of arms for the same reason (“why”), and in the same way (“how”), as the historical regulations it is invoking. To tie strands of the past to strands of the present, the government must grasp two ends: it must correctly characterize the past and it must correctly characterize the present. Much ink has been spilled (my own included) about the nature of the inquiry into the past. Much less has been said about the nature of the inquiry into the present.
If, for example, there exists a historical tradition that includes temporarily disarming dangerous individuals, how does the government go about proving that the individuals its present-day regulation targets are dangerous? In Rahimi, the United States insisted that this was a legislative judgment to which courts must defer. In Hemani, the United States accepted that it may need to satisfy courts that its judgment is correct.
The decision in Hemani confirms that the United States was right the second time. As fellow SCOTUSblog contributor Professor Stephanie Barclay writes, the government has to “prove the reason” for burdening one’s ability to keep and bear arms. The court did not give a final answer in Hemani on what proving the reason requires, but it gave two important pieces of guidance. First, it emphasized that “[t]he historical laws the government identifies usually provided some form of process before an individual lost any of his liberties, even temporarily.” Although the court stopped short of holding that the government may not deprive an individual of his right to keep and bear arms without a pre-deprivation hearing, it at least placed a big question mark at the end of any claim that the government may categorically disarm groups of people without an individualized showing of dangerousness. (An individualized showing, it should be recalled, was made in Rahimi). Second, the court held that, even if categorical legislative judgments may be permissible under some circumstances, the government’s “current say-so” is not enough to prove that “anyone who regularly uses marijuana is categorically violent and dangerous without any further showing.” Courts need proof.
My last column examined open questions about whether the government’s burdens in Second Amendment litigation are factual or legal. I noted that lower courts often get the classification exactly backwards: treating legal inquiries about history as factual, and treating factual inquiries about how the law applies to the party before the court as legal. Though it will not be the court’s final word on the subject, Hemani provides a good model for how courts should analyze Second Amendment challenges.
And we can look forward to another model next term, when the court takes up two challenges to laws that restrict ownership of semiautomatic rifles.
