Two recent Supreme Court decisions provide more ammunition for constitutional challenges to burdensome firearms restrictions.
Four years ago in New York State Rifle & Pistol Association v. Bruen, the court set forth a two-part test for determining whether firearm restrictions are constitutional. First, the court examines whether the challenged law restricts conduct that is protected by the plain text of the Second Amendment. If it does, the government must demonstrate that the restriction is consistent with the American historical tradition of firearm regulation. The government can meet this burden by showing the existence of “historical analogues,” which are laws that existed at the time of the founding that restricted firearms for similar purposes in a similar manner compared to the modern law.
In Bruen, the court struck down New York’s requirement that concealed carry applicants have a “proper cause” for desiring a permit, which the New York courts had interpreted as requiring applicants to demonstrate “a special need for self-protection distinguishable from that of the general community.” This was deemed unconstitutional since no laws existed at the time of the founding that required citizens to prove to a government official a special need for carrying a firearm.
The court in Bruen explained that the historical analogues test should be applied neither too strictly nor too loosely, stating: “Analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin.” This left some questions for future cases about just how closely the historical laws had to fit with the modern laws.
In the 2024 United States v. Rahimi decision, the court upheld a federal statute prohibiting the possession of firearms by individuals against whom domestic violence restraining orders have been issued. In Rahimi, the court found that there were laws at the time of the Second Amendment’s adoption that prohibited the carrying of firearms in a threatening manner, which was sufficiently similar to pass the historical analogues test, even though the same kind of modern laws pertaining to domestic violence restraining orders did not yet exist in the 18th century.
In United States v. Hemani, the court recently held that prosecuting a defendant who regularly used marijuana a few times per week for violating the federal statute prohibiting possession of a firearm by unlawful users of controlled substances violated the Second Amendment. The government cited laws that existed at the time of the founding that imposed restrictions on “habitual drunkards,” but the court held that these were not sufficiently similar because those laws targeted individuals who abused alcohol so heavily that they were incapable of managing their own affairs, thus justifying legal restrictions such as the appointment of legal guardians, commitment to asylums, jails and workhouses. The court found the habitual drunkard laws “targeted different kinds of people, did so for different purposes, and operated in different ways.”
In Wolford v. Lopez, Hawaii enacted laws prohibiting carrying firearms on private property open to the public unless the property owner specifically authorized it. This effectively made all businesses that lawful concealed carry holders visited daily default gun-free zones. In striking down Hawaii’s law as violating the Second Amendment, the court provided further analysis on how to apply the two-part Bruen test.
First, in analyzing whether the Second Amendment’s text protects the challengers’ conduct, the court must examine (1) whether the law applies to the people of the United States, which is all members of the political community, (2) whether the law concerns arms, which are any weapon customarily used for offensive or defensive purposes, and (3) whether the law places restrictions on the possession or carrying of weapons. If the challenged law restricts these protected activities, it is presumptively unconstitutional, and the burden shifts to the government to prove that the modern law is consistent with history and tradition.
In determining whether a law passes the historical analogues inquiry under the second step of the Bruen test, the court identified three factors: (1) The number of jurisdictions in which the analogues were adopted, (2) the extent to which the historical laws were well-accepted, such as if they were upheld as valid by courts throughout history, and (3) whether the historical analogue is “relevantly similar” to the modern law in its purpose and the manner in which it tries to accomplish that purpose based on the type of restrictions it imposes.
In Wolford, Hawaii argued that the existence of laws at the time of the founding prohibiting unauthorized hunting on private property was sufficiently similar to its default prohibition on carrying firearms in businesses open to the public. The court found that such laws were not sufficient to pass the historical analogues test because those laws did not restrict the carrying of firearms for self-defense or apply to property open to the public for commercial purposes.
The Hemani and Wolford decisions illustrate a presumption of liberty in favor of the right to keep and bear arms. Although the government still has a substantial degree of latitude in enacting reasonable firearm regulations, these cases establish that it is the government that must justify restricting presumptively protected activity. It is not individual citizens who must justify a desire to exercise a constitutional right.