Citation

Spitzer RJ. Fordham Urban Law J. 2023; 51(1): 57-115.

Copyright

(Copyright © 2023, Fordham University School of Law)

DOI

unavailable

PMID

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Abstract

The Supreme Court's 2022 decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen fundamentally disrupted the basis and criteria for judging the constitutionality of contemporary gun laws.1 Moving beyond the approach taken by the Court in its 2008 decision of D.C. v. Heller,2 the Court for the first time in history expanded the Second Amendment right to allow citizens to carry a gun in public spaces. Further, it decided that the government would have to show that a gun regulation "is consistent with the Nation's historical tradition of firearm regulation" to uphold its constitutionality.3 The Court also said that "a modern-day regulation" need not be "a dead ringer for historical precursors" for it to be "analogous enough to pass constitutional muster."4 Thus, comparisons between old gun laws and current ones now play a critical role in determining the constitutionality of contemporary gun regulations. This new standard has opened the floodgates of legal challenges to all manner of gun laws5 and raised collateral controversy about the logic and wisdom of the Court's decision.6

This new legal standard is, for example, applied in challenges to state and local laws restricting assault weapons and large capacity magazines (LCMs). The debate over these laws would seem to be a purely contemporary matter, responding to the modern phenomenon of mass shootings and the technologies that led to the development and spread of assault weapons. Indeed, the modern effort to restrict such weapons was sparked in part by a shooting at an elementary school in Stockton, California in 1989, when a man, armed with an AK-47 and a handgun, killed five children and wounded thirty-three others. The assailant fired a total of 105 rounds in about three minutes from a 75-round magazine and a 30-round magazine, both of which he emptied before killing himself.7 Later that year, California enacted the first assault weapons ban in the country. Five years later, Congress enacted a limited ten-year assault weapons ban that also included a restriction on ammunition magazines holding more than 10 rounds.8

As of this writing, ten states plus the District of Columbia have enacted similar bans, as have various localities around the country.9 These jurisdictions represent approximately 109 million people, or approximately 32.7% of the U.S. population.10 14 states plus the District of Columbia restrict LCMs.11 These jurisdictions represent more than 115 million individuals, or approximately 34.5% of the U.S. population.

Language: en