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Disarray in lower courts after Supreme Court’s 2nd Amendment shake-up

A major gun rights ruling from the conservative majority has only begun to work its way through federal appeals courts and some experts already see a need for high court intervention. 

WASHINGTON (CN) — Gun regulations preventing domestic abusers from possessing firearms were shot down on Thursday at the Fifth Circuit not because modern society deems them unnecessary but because the founding generation did. 

The USA v. Rahimi ruling is just one of many relying on the Supreme Court’s new framework for evaluating gun laws under the Second Amendment. If the founders did not have an analogous law regarding firearms, then neither can modern society. 

Published at the end of the court's last term, New York State Rifle & Pistol Association Inc. v. Bruen upended 14 years of Second Amendment case law by forcing judges to evaluate gun regulations based on historical analogies versus a two-part categorical test that had been used since the 2008 District of Columbia v. Heller decision. So while Bruen guided the Fifth Circuit to let domestic abusers with restraining orders obtain weapons, the court would likely have ruled differently just eight months prior. 

“Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights,” the unanimous New Orleans-based panel wrote. “But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an ‘outlier[] that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.” 

Lower courts have been using the new framework from Bruen to strike down gun regulations across the country, but the Fifth Circuit is only the second federal appeals court to give an interpretation. The case also targets a federal regulation versus state law. Experts on firearms regulations say this case in particular illustrates Bruen's potential pitfalls. 

“The problem after Bruen is that the founding generation did not view domestic violence as all that much of a problem,” Eric Ruben, an assistant professor of law at SMU Dedman School of Law and a Brennan Center fellow, said in a phone call. 

The Bruen test requires attorneys and judges to look back to the 1700s for potential analogous gun regulations. But in the 1700s, domestic violence was not dealt with in the same manner as it is now. Men even had chastisement rights that allowed them to discipline their wives and other family members. 

“One of the shocking things about this opinion is that, at the end of the day, it's basically saying that, because the founding generation had different moral sensibilities than we do when it comes to gendered violence, we are not allowed today to pass domestic violence laws that we know could save a lot of lives,” Ruben said. 

Finding analogous laws is not the only problem experts are seeing in how courts are interpreting Bruen. At the Fifth Circuit, the government cited founding-era laws that prevented categorial groups from possessing firearms. For example, the government disarmed Native Americans, enslaved and freed Black Americans, and those who were disloyal to the United States. The New Orleans panel did not think these categorical groups were analogous enough to disarm domestic abusers. 

“The court basically says well those were group-based disarmament laws so therefore they're not analogous to 922(g)(8) — this federal prohibition — because the federal prohibition is a targeted individualized disarmament, not a group-based disarmament and therefore it can't be supported by these old group based laws,” Jake Charles, a professor at Pepperdine Caruso Law, said in a phone call. 

How analogous modern gun laws must be to founding-era gun laws is yet to be determined. Justice Clarence Thomas wrote the majority opinion in Bruen but did not provide guidance on how courts should weigh these factors. Without that guidance, courts are free to determine how analogous laws can be on their own. While the Fifth Circuit did not think these laws were closely related enough, it's possible another appeals court could rule the opposite. 


“This is the very beginning of starting to see appellate courts reasoned through what Bruen requires,” Charles said. “My expectation is that when other circuits start looking at Bruen, they're going to take different views of how to do the historical analogizing, and ultimately the Supreme Court is going to have to provide more guidance.” 

Many experts critiqued Bruen after it was handed down because of the unique nature of the test it creates. Constitutional law does not generally require judges to become historians to rule on cases. 

“The court’s test is confusing to people in part because it's so unfamiliar to constitutional law,” Adam Winkler, a Connell professor of law at UCLA Law, said in a phone call. “There's no other right where we say the government's regulatory power is solely the power that they had back in the 17- and 1800s. We just don't do that.” 

This has created confusion in the lower courts where one judge will rule on an issue one way and another will rule the complete opposite using the same framework. 

“I think it's fair to say that the lower court case law on the Second Amendment is a mess right now,” Ruben said. 

He continued: “I expect that, over the coming months, we're going to see a lot of divergent outcomes. Judges looking at the identical historical record, and just coming to different conclusions because of the level of generality at which they're interpreting the history.” 

Confusion in the lower courts could mean the Supreme Court will have to take up this issue again to clarify how its new test should be applied. While six of the court’s conservatives voted for the broad test set out in Bruen, it's possible some of the justices could be interested in placing limits on its interpretation. 

Justice Brett Kavanaugh — joined by Chief Justice John Roberts — wrote a concurring opinion in Bruen that spoke to limits of the court’s ruling. The Trump appointee specified that he still saw the possibility of gun regulations under the Second Amendment. 

“As Heller and McDonald established and the Court today again explains, the Second Amendment ‘is neither a regulatory straightjacket nor a regulatory blank check,’” Kavanaugh wrote. “Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.” 

The concurrence could signal a willingness of Kavanaugh and Roberts to take a more moderate view if the court were to review Bruen’s application. 

“I have trouble counting five justices who would be comfortable striking down this law, but I guess we'll see,” Charles said. 

It is not clear if the federal government will appeal the Rahimi outcome to the Supreme Court, or if the justices are even interested in taking up the issue again so soon after the ruling in Bruen. That the court will have to clarify the application of its new test at some point is probable. but some experts contend that it's not the application that's the problem. 

“In my view, it's not that the test is confusing, but the problem is that the test is a bad test,” Winkler said. “It leads to bad results and that the Supreme Court didn't really think it through before adopting.” 

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Courts, National

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