The Supreme Court’s latest opinion on gun rights has done little so far to eliminate the disagreement and confusion among federal judges who must decide the constitutionality of gun restrictions across the nation, legal experts say.
In the United States v. Rahimi decision in June, the justices sought to clarify how the courts should analyze whether a firearm law violates the Second Amendment and wrote that some judges had “misunderstood” the court’s 2022 landmark decision in New York State Rifle & Pistol Association v. Bruen, which expanded gun rights.
While the Bruen decision found that restrictions must be consistent with the nation’s “historical tradition of firearm regulation,” the Rahimi decision said those laws do not require a “historical twin,” but instead should be “consistent with the principles that underpin our regulatory tradition.”
Since then, some courts have upheld some restrictions while other courts have struck down other restrictions, as the Rahimi decision has not ended ambiguity over how judges should handle Second Amendment challenges, according to gun law experts.
“There’s still a lot of head-scratching by lower-court judges,” Darrell A. H. Miller, a law professor at The University of Chicago, said.
At stake in the lower-court cases are laws that shape the availability of guns and the role of firearms in American life — including who can possess firearms, where firearms are allowed and the types of firearms that are legal.
Stephen Halbrook, an attorney who focuses on Second Amendment litigation, said the outcome of a gun case can depend on where it’s filed. “So once again, a lot of this is going to end up in the lap of the Supreme Court,” he said.
Joseph Blocher, a law professor at Duke University, said courts are in essence still confronting many questions for the first time under the historical test set up under Bruen.
“It really comes down to which court, which parties, which sources, which historical experts are available. And that’s a recipe for a lot of disagreement,” said Blocher, who is also faculty director of the Duke Center for Firearms Law.
“What you’re seeing is sometimes a mixed bag, even within the context of the same case,” Blocher said.
That dynamic was on display earlier this month when the U.S. Court of Appeals for the 9th Circuit found that California could enforce a firearms ban in certain places but not others.
The state could prohibit firearms at bars and restaurants that serve alcohol, youth centers, parks, casinos and athletic facilities, the appellate court ruled, but could not prohibit guns at hospitals, on public transit, at places of worship or at financial institutions.
Circuit Judge Susan P. Graber wrote in the opinion that the “seemingly arbitrary nature” of Second Amendment rulings would “inspire further litigation” as states and localities try to legislate within the bounds of the Constitution.
“Taking a step back from the historical analysis, the lists of places where a State likely may ban, or may not ban, the carry of firearms appear arbitrary,” Graber wrote in the opinion. “The deep historical analysis required by the Supreme Court provides the missing link, but the lack of an apparent logical connection among the sensitive places is hard to explain in ordinary terms.”
For instance, the 9th Circuit found that the nation’s historical tradition included regulating firearms in parks, saying that municipalities across the nation in the 19th century banned the carrying of firearms at parks.
“Central Park in New York City is perhaps the Nation’s first modern public park,” Graber wrote. “In 1858 — the year the park opened — New York prohibited the carrying of firearms in Central Park.”
Other cases
In a separate gun-related case, another 9th Circuit judge wrote that a majority of the court thinks Rahimi permits historical analogizing “at a high level of generality,” arguing that approach allows judges to uphold “basically any gun regulation or ban.”
Judge Lawrence VanDyke wrote in a dissent that many judges on the 9th Circuit view Rahimi as “a license to over-generalize to their hearts’ content.”
“Highly generalized principles like ‘dangerousness’ and ‘responsibility’ can easily be extracted from almost any historical law and then just as easily applied to justify effectively anything,” VanDyke wrote.
Kari Still, law and policy advisor at the Johns Hopkins Center for Gun Violence Solutions, said the state of the law appears to be unsettled when it comes to Second Amendment adjudication.
“Some courts are reading Rahimi’s guidance more seriously, while other courts are reading the narrowness of the decision itself and the cautionary language the court gives to [still] apply Bruen’s history and tradition framework,” she said.
Advocates on both sides of the gun debate have had wins in the months following the Rahimi ruling.
In Kansas, a federal district judge last month dismissed charges against a man accused of possessing a machine gun and a machine gun conversion device, ruling that the government in the case had not met its burden under Bruen and Rahimi.
The U.S. Court of Appeals for the 8th Circuit this summer ruled against a Minnesota law that prevented people under 21 years old from legally carrying handguns in public. It said the law violated the Second Amendment as applied to Minnesota.
Meanwhile, the U.S. Court of Appeals for the 4th Circuit last month upheld Maryland’s ban on “assault weapons.”
And in a separate case, the 4th Circuit upheld a federal criminal statute that bans the possession of firearms with an obliterated serial number.
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