Now that the Supreme Court appears to have filled out its list of oral arguments for the 2025-26 term (unless it chooses to fast-track cases), now seems like an appropriate time to take a look at the Second Amendment landscape and highlight some of the biggest questions the justices have yet to address.
As a reminder, current Second Amendment case law is relatively new in the realm of Supreme Court case law. In fact, less than 20 years ago, the court made such a decision District of Columbia v. HellerBelieves that the Second Amendment protects an individual’s right to own a firearm for self-defense. Fast forward to 2022, and the courts made another sea change with the following decision: New York State Rifle and Pistol Association v. Brunn and establishes (or at least formalizes) new tests for Second Amendment cases: text, history, and tradition. Specifically, according to Brun Under the framework, the court must first ask whether the “clear text” of the Second Amendment is relevant to the gun conduct at issue; if so, the government must show that laws restricting gun rights are consistent with the country’s “historic tradition of gun control.”
So far, this is the only decision in a Second Amendment case since Brun Was United States v. Rahimiin which an eight-judge majority upheld a federal statute that would temporarily disarm anyone subject to a domestic violence restraining order. although Laxmi provides some guidance on how to proceed BrunLower courts continue to fight and divide on some gun-related issues, according to historical analysis.
This brings us back to the present. This semester, we will receive two Second Amendment decisions from the courts. exist Wolford v. Lopez, The justices were considering whether a Hawaii law that presumptively prohibits carrying handguns on private property open to the public unless the property owner expressly consents violates the Second Amendment. In early March, the court will hear oral arguments United States v. Hermanion the constitutionality of federal laws prohibiting personal possession of firearms by “unlawful users”[s] or addiction to any controlled substance. “
These cases may provide some much-needed guidance to litigants and lower courts in applying a “history and tradition” framework to Second Amendment challenges. But they leave behind many big questions about gun rights. Here are some of them.
semi-automatic rifle
The status of semi-automatic rifles like the AR-15 is perhaps the most salient undecided question under the Second Amendment. As Pete Patterson recently explained to Haley Proctor on the SCOTUS blog, the Supreme Court Heller The Second Amendment protects weapons “commonly used” for lawful purposes but not “dangerous and unusual weapons.” Semiautomatic rifles demonstrate, at least in the eyes of some courts, the conflict raised by this formulation. The AR-15 is said to be the most popular firearm in the United States, and therefore can be said to be “universally used.” Courts that have upheld banning these guns, on the other hand, have concluded based on the AR-15’s firepower and accuracy that it is more suitable for military combat than civilian self-defense, and therefore qualifies as a “dangerous” weapon banned at the time of the founding.
Last June, a judge denied a review petition challenging Maryland’s ban on semiautomatic rifles. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have all said they would take up the case. Although Justice Brett Kavanaugh did not vote to grant review, he wrote a brief statement regarding the denial. Kavanaugh explained that he doubted the 4th U.S. Circuit Court of Appeals was correct in upholding Maryland’s ban on such weapons. But he wrote that with similar cases pending in other circuits, the time was not yet ripe for the Supreme Court to step in. Still, Kavanaugh concluded by saying the court “should and probably will” address the AR-15 issue soon “within the next term or two.” Perhaps we’ll soon see this prediction come true: the court is currently considering whether to grant two pending petitions— Veramontes v. Cook County and National Gun Rights Association v. Lamont ——About this issue.
large capacity magazine
Although the laws vary slightly, many states have enacted bans on what are commonly referred to as high-capacity magazines. Generally, this category includes any magazine that holds more than 10 rounds of ammunition. A handful of federal appeals courts and state supreme courts have ruled that high-capacity magazines are not “weapons” within the express meaning of the Second Amendment. This means these cases have been discarded in the first step Brun Investigate before the burden is shifted to the government to demonstrate the historical tradition (or “historical analogy”) of banning such items. Other courts have found (or presumed) that high-capacity magazines are “weapons,” but ultimately concluded that the challenged statutes were constitutional because there was sufficient historical tradition to justify a ban on them.
There are currently at least two petitions pending in court regarding the issue, which have been relisted at several meetings. For example, Duncan v. Bonta The judges considered it in five recent meetings. Given this, it seems only a matter of time before the courts consider the issue.
Person convicted of a felony possesses firearm
Another federal law, often called the “felon possession” statute, actually makes it illegal for anyone convicted of a crime punishable by more than a year in prison to possess a firearm or ammunition. Many have challenged that statute (and similar state statutes), arguing that it is unconstitutional to disarm someone based on a past felony conviction when the underlying felony was nonviolent — such as selling a controlled substance or committing fraud.
While these challenges were many, they were also relatively unsuccessful. Of the nine federal circuit courts that have ruled on the issue, only the U.S. Court of Appeals for the Third Circuit found the statute unconstitutional in any way. exist Garland v. Ranchthe court held that it was unconstitutional to permanently disarm Bryan Range, who was convicted of food stamp fraud decades ago. Additionally, the U.S. Court of Appeals for the Fifth and Sixth Circuits expressed a willingness to consider individual challenges to the statute based on the type of crime, although six other circuit courts weighing in appeared to rule that individuals convicted of felonies have no recourse at all, regardless of their underlying convictions.
Just last month, judges dismissed a slew of petitions on the issue. However, the court did not act on two cases that raised the issue, including a petition for review filed by Melynda Vincent, who was banned from possessing firearms for nearly two decades after being convicted of trying to pass bad checks. Although Vincent’s case was allowed to be reopened, it seems unlikely that the court would grant it given the other denials.
sensitive place
exist HellerThe court emphasized that nothing in its opinion was intended to challenge (among other things) gun restrictions in “sensitive locations such as schools and government buildings.” But what about other places? Many states and cities have regulations restricting the carrying of firearms in a variety of places, including places of worship, parks and zoos, public transportation, and drinking establishments. These cases thus highlight two interrelated questions: What exactly counts as “sensitive” and why?
If a judge chooses to take a case like this, they may have answers schoenthal v. raoula petition currently before the courts. Specifically, Schoenthal It’s a challenge to Illinois’ law banning guns on public transportation. According to the gun owners who filed the lawsuit, history shows that individuals retain their Second Amendment right to self-defense in public places unless the government decides to assume responsibility for protecting them (usually by providing armed guards, metal detectors, etc.) — so only places where the government has shouldered that burden may be deemed “sensitive.”
It is worth noting: Walford Also included was a challenge to restrictions on sensitive locations in Hawaii, but the Supreme Court did not agree to hear or rule on that aspect of the case. Therefore, we are unlikely to provide much clarification on this issue in this report. Walford decided and then ripe for resolution in future cases.
minor
Several federal and state laws prohibit individuals under the age of 21 from purchasing or possessing firearms. back Brunthese restrictions apply to adults between the ages of 18 and 20, so there are many challenges. Previous Supreme Court decisions, such as the 1968 decision Ginsburg v. State of New Yorkhave noted (albeit not without criticism) that “minors” may have less extensive constitutional rights. Nonetheless, many of these cases seem to assume that the minor is under 18 and that once an individual reaches 18, they are an adult with strong constitutional rights, which may include the Second Amendment.
Another problem arises from the historical presence (or absence) of such laws, as we have established that since the courts in Brun. Lower courts have been divided on the issue, whether considering the age of maturity at the time of the founding or the nature of the college student provision in the 18th century. At least two related petitions are currently pending in court, including Paris v. Second Amendment Foundationin which the government argued that the law setting a minimum age of 21 for the right to bear arms was consistent with history from the founding of the country to the 19th century. Still, the justices haven’t considered either case in conference since November, so the justices don’t appear to be planning to decide on the issue anytime soon.
What counts as history?
This last category is more abstract than the others, centering not on a specific type of regulation but on the legal framework associated with it. exist WalfordThe petition includes two issues raised. In addition to the issues the justices agreed to hear (about guns on private property), challengers argued that the U.S. Court of Appeals for the Ninth Circuit erred in relying on historical evidence from the Reconstruction period and beyond, rather than relying solely on historical evidence that was available at the time the Second Amendment was ratified.
The judges acknowledged that the question of the time period judges should rely on when conducting historical inquiries is unresolved, but they have so far declined to offer any insight of their own. exist LaxmiFor example, the majority opinion explicitly addressed this ongoing issue but concluded that a decision was “not necessary” in this case. This case has divided not only the Court, but originalists in general, and is likely to reappear on the Court’s docket in the near future.
So what now?
Overall, the Second Amendment seems to have more questions than answers. While some observers call the area “a mess,” others believe it’s just part of the “normal science” of constitutional law. Whichever view is correct, this remains an area in which guidance from the courts is urgently needed.
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