July 2022 – The U. S. Supreme Court Still Permits Substantial Gun Regulation

Four years ago, I published this article explaining that, despite talking points from partisans on both sides of the question, the Supreme Court’s 2008 ruling in District of Columbia v. Heller explicitly granted both federal and state legislatures a wide variety of options to regulate both guns and those who possess them. I was gratified to see that the Supreme Court law clerks who participated in drafting the opinions for both the author of the majority opinion (Justice Scalia) and the lead dissent (Justice Stevens) quite recently provided the same evaluation, noting among other things that arguments by gun control opponents that expanded background checks would violate the Second Amendment are “just not supported by the Supreme Court’s interpretation of the amendment in Heller.”

This current article was in process before the terrible mass shooting in Highland Park, Illinois on July 4, 2022 (as I write this, that was yesterday). Details are still dribbling in – but we now know that the alleged shooter, 22 years old, had legally purchased at least two assault rifles, so (for example) raising the minimum age to purchase from 18 to 21 would not have prevented him from a legal purchase; the latest information is that he fired some 70 rounds in a matter of a few minutes. This attack, along with others in Uvalde, Texas and Buffalo, New York – and many others – create a further urgency to take action and enact reforms in the way that this nation treats the “who,” the “what,” and the “where”: who can possess weapons, which weapons are allowed, and where/how they may be carried. And that action, including the recently enacted Bipartisan Safer Communities Act (S.2938), still remains entirely within the constitutional purview of legislatures.

The Supreme Court’s June 23, 2022 ruling in New York State Rifle & Pistol Association v. Bruen confirms this. Despite the broad standard for considering the constitutionality of legislative regulations, the ruling itself is quite narrow, limited to the six jurisdictions that have what the Court referred to as “may-issue” discretionary gun licensing statutes and not the 43 states that have “shall-issue” statutes, as the concurrences by both Justices Alito and Kavanaugh confirm. The latter is especially important, since it represents the views of two of the six justices in the majority – meaning that a majority of the Court (including the dissenters in the count) favor a narrow view of the opinion and a wide range of potential regulation.

As Justice Scalia did in Heller, Justice Thomas’ majority opinion improperly cherry-picks historical evidence to support its position, ignoring the mountain of contrary historical evidence set out in Justice Breyer’s far superior dissent (similar to Justice Stevens’ dissent in Heller). Further, as Justice Breyer so ably points out, the majority’s notion that “means-end scrutiny” (balancing government interests against constitutional rights to determine how far restrictions on those rights can go) cannot apply to Second Amendment analysis even though it applies to evaluation of governmental regulation of rights under all other amendments of the Bill of Rights, cannot itself withstand scrutiny, is unworkable (especially for lower courts), and is overall disappointingly poorly reasoned.

But the focus here is not to spend time criticizing the details of the majority’s history-only/analogy approach (though there are ample grounds for doing so – a task for another day) – unique to constitutional jurisprudence as described so well in Justice Breyer’s dissent – but to instead note what remains permissible even under that odd and unsupportable standard.

Any reasonable reading of the Thomas majority opinion reveals the narrow scope of the ruling. First, the focus of the opinion, and the New York statute under consideration, was clearly on handguns, and not other types of firearms (Majority Opinion, at p. 12; see also Majority Opinion at p. 23: “Nor does any party dispute that handguns are weapons ‘in common use’ today for self-defense.” (emphasis added)).

The “in common use” phrase is one that repeats and is important because the Court also noted that restrictions are permitted, historically and presently, for “dangerous or unusual weapons” (Majority Opinion, p. 12) and those that are “highly unusual in society at large” (Majority Opinion, p. 38-39). The question for future courts on this subset of the issue will be: are such things large ammo magazines, bump stocks, automatic or assault rifles (a) “in common use” or (b) “dangerous and unusual”?

Beyond that is the majority’s emphasis on not only “in common use” but on use for “self-defense.” This emphasis occurs several times in the Majority Opinion, with the court quoting from Heller (and the later decision in McDonald) that “individual self-defense is a central component of the Second Amendment.” (Majority Opinion, p. 20, boldface added, italics in original). While possession of handguns in the home or in public may, according to the Court, be used for self-defense, what about AR-15 rifles, similar to that used in Highland Park? The Court gives no guidance on such things – but there is nothing whatever in the Majority Opinion that hints that such weapons qualify as “in common use” or appropriate for “self-defense” rather than offensive use.

Further, as to the “who” question, the Court provides considerable leeway to legislatures on those whose ownership or possession of firearms, even handguns, might be restricted. Footnote 9 (Majority Opinion, p. 30) provides an important caveat: “To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit].’” In Footnote 9, the Court appears to explicitly permit such things as background checks and requirements to pass a firearms safety course as a prerequisite to obtain a license, as long as the procedures are not abusive or fees are not exorbitant so as to prevent “law-abiding, responsible citizens” from exercising their Second Amendment rights.

The concurrences provide additional emphasis on the right to restrict both the “what” and the “who.” According to Justice Alito, the majority’s ruling was narrow. After emphasizing that the “key point” in Heller was that “the people . . . have the right to use a firearm to defend themselves,” (Alito Concurrence, p. 1), he added (at p. 2, emphasis added):

[T]oday’s decision therefore holds that a State may not enforce a law, like New York’s Sullivan Law, that effectively prevents its law-abiding res­idents from carrying a gun for this purpose.

That is all we decide. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561 U. S. 742 (2010), about re­strictions that may be imposed on the possession or carry­ing of guns.

There are other issues with the Alito Concurrence (including his citation to a debunked study purporting to show that “defensive firearm use occurs up to 2.5 million times per year”), but as with the Majority Opinion’s evaluation framework, those will be left for another day to concentrate on what regulations remain possible even under the majority’s ruling.

That brings us to possibly the most important opinion in Bruen, the Kavanaugh concurrence, joined by Chief Justice Roberts.

By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in fire arms handling and in laws regarding the use of force, among other possible requirements. . . As petitioners acknowledge, shall-issue licensing regimes are constitu­tionally permissible, subject of course to an as-applied chal­lenge if a shall-issue licensing regime does not operate in that manner in practice.

Kavanaugh Concurrence, p. 2 (emphasis added). Further, citing to and quoting from both Heller and McDonald, Justice Kavanaugh continued:

Properly interpreted, the Second Amendment allows a “variety” of gun regulations. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of fire­arms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

Id., p. 3. While this discussion is primarily about the “who” and the “where” of gun possession, it leaves open the “what”: the possibility – as did the Majority Opinion and the Alito Concurrence – for fully constitutional restrictions on types of weapons that may be carried beyond handguns.

No matter how much one agrees or disagrees with the Supreme Court’s rulings on gun control, it is undeniable that a wide variety of constitutional regulations remain possible. Further, the Court has made it clear that the Second Amendment is not a magic talisman to be deployed to eliminate regulation of firearms by the NRA or anyone else. The recently enacted federal Bipartisan Safer Communities Act is a start – but only a start.

What is needed is the will – not only to enact additional legislation but to enforce existing regulations. New York had a “red flag” law already in place before the Buffalo shooter purchased his weapon. He potentially should not have been able to legally purchase a weapon – but information about his past had not been put into the system and his online statements had not been noticed. Our legislatures, and our society, need to make a risk/benefit balancing evaluation of the need for privacy and to protect people from having a “record” on one hand, and public safety involving firearms on the other.

Either way, the current jurisprudence of the Supreme Court clearly allows further regulation of the “who,” “where,” and “what” of guns – and we should get started on testing the range of possibilities.

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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