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Abstract
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In New York State Rifle & Pistol Ass'n v. Bruen, 1 the Supreme Court held unconstitutional a New York statute that, as construed by the state courts, allowed an individual to carry a firearm outside her home or business for purposes of self- defense only if she could show licensing authorities "a special need for self-protection distinguishable from that of the general community."2 By a vote of six-to-three, the Court concluded that this statute violated the right to keep and bear arms guaranteed by the Second Amendment and applied to the states by the Fourteenth Amendment.3
The Court announced a general standard for applying the Second Amendment that, in the year following its decision, led lower courts to invalidate dozens of state and federal firearms regulations. Shortly after Bruen's anniversary, on the last day of its 2022-23 Term, the Court agreed to review a Fifth Circuit decision striking down a federal statute barring people subject to domestic violence restraining orders from possessing firearms.4 The Court also seemed likely to review conflicting rulings by the Third and Eighth Circuits on the validity of a federal law forbidding firearm possession by convicted felons.
Before Bruen, in District of Columbia v. Heller in 2008, the Court revived the long-moribund Second Amendment, holding that it guarantees a right to possess a handgun in one's home for purposes of self-defense.6 The Court observed: "Like most rights, the right secured by the Second Amendment is not unlimited."7 It noted, for example, that 19th-century prohibitions of carrying concealed weapons were widespread and generally upheld.8
After Heller, eleven federal courts of appeals approved a general standard for judg- ing the constitutionality of firearms regulations. This standard required courts to ex- amine the amendment's text, traditional understandings of its meaning, and the strength of the interests advanced by the challenged regulations.9 In Bruen, Justice Thomas's opinion for the Court rejected this standard, declaring that it had "one step too many."10 A better standard would eliminate any "judge-empowering 'interest-balancing inquiry.'"11 It would be "rooted in the Second Amendment's text, as informed by history"12 and nothing more. ...
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Language: en |