Federal appeals courts were busy this summer trying to make sense of the Supreme Court’s recent Second Amendment decisions. It has not gone well.
In 2022, Justice Clarence Thomas introduced a new test to assess the constitutionality of laws meant to address gun violence. Such laws must be struck down, he wrote, unless they are “consistent with the nation’s historical tradition of firearm regulation.”
Last month, Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., writing for six judges, said that approach had created “a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”
He added: “Courts, tasked with sifting through the sands of time, are asking for help.”
Jacob D. Charles, a law professor at Pepperdine University, said the justices were likely to return to the fray, and soon.
“Several major Second Amendment issues have been fracturing lower courts that may soon elicit Supreme Court review,” he said. Among them: laws barring felons, drug users and young people from having firearms; measures establishing gun-free zones; and bans of high-powered rifles.
Looking for historical analogies to modern gun control laws, as required by Justice Thomas’s 2022 majority opinion in New York State Rifle & Pistol Association v. Bruen, can yield surprising results.
This month, for instance, a unanimous three-judge panel of the Ninth Circuit, in San Francisco, dutifully analyzed laws from California and Hawaii that sought to forbid carrying guns in many places.
“Taking a step back from the historical analysis,” Judge Susan Graber wrote for the panel, “the lists of places where a state likely may ban, or may not ban, the carry of firearms appear arbitrary. A state likely may ban firearms in museums but not churches; in restaurants but not hospitals; in libraries but not banks.”
“The deep historical analysis required by the Supreme Court provides the missing link,” she added, “but the lack of an apparent logical connection among the sensitive places is hard to explain in ordinary terms.”
The required analysis led to statements like this one: “Playgrounds did not exist in modern form at the time of the founding.” And: “No colony, state or territory banned firearms at places of worship until after the ratification of the 14th Amendment.”
In June, in United States v. Rahimi, the Supreme Court upheld a federal law that made it a crime for people subject to domestic violence restraining orders to have guns. In his majority opinion, Chief Justice John G. Roberts Jr. looked to history in very general terms and said lower courts bore the blame for the confusing state of the law.
“Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote. “These precedents were not meant to suggest a law trapped in amber.”
Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, “offered little instruction or clarity.”
A petition seeking review of the Fourth Circuit decision has already been filed. The appeals court, by a 10-to-5 vote, upheld a Maryland law banning semiautomatic rifles like the AR-15.
“We decline to wield the Constitution to declare that military-style armaments, which have become primary instruments of mass killing and terrorist attacks in the United States, are beyond the reach of our nation’s democratic processes,” Judge J. Harvie Wilkinson III wrote for the majority.
In dissent, Judge Julius Richardson wrote that “the Second Amendment is not a second-class right subject to the whimsical discretion of federal judges.” The majority, he wrote, had ignored history in favor of “waxing poetic about the dangers of gun violence and the blood of children.”
Other issues are on the horizon. In July, the Eighth Circuit, in St. Louis, struck down a Minnesota law that people must be at least 21 years old to carry guns in public. A unanimous three-judge panel ruled that the Second Amendment required letting those as young as 18 be armed.
“The Second Amendment’s plain text does not have an age limit,” Judge William Benton wrote, noting that the 26th Amendment, adopted in 1971, gave 18-year-olds the right to vote and “unambiguously places 18- to 20-year-olds within the national political community.”
The Supreme Court did not recognize an individual right to own guns until 2008, and it has issued only four major decisions on the scope of the right.
“The Supreme Court has only just begun to articulate rules and principles to implement the right to keep and bear arms, and just like with other rights, that’s going to take time,” said Joseph Blocher, a law professor at Duke. “It’s clear that the lower courts are struggling to apply this new historical-analogical test. Some judges are explicitly begging for guidance, and the justices are either going to have to provide that itself or give the lower courts room to do it themselves.”
Judge Pamela Harris of the Fourth Circuit, speaking at a conference on Saturday at William & Mary Law School, said appeals court judges faced a perplexing task.
“The trick is that we all need to go back in time and become historians,” she said. “And short of that, I find this to be very, very challenging.”
She gave an example.
“I just got two briefs,” she said. “One brief says, ‘This happened in history.’ The other says, ‘No, it didn’t.’”
“What do I do?” she asked.
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