1
BRUEN AS HELLER: TEXT, HISTORY, AND
TRADITION IN THE LOWER COURTS
Leo Bernabei*
The Constitution and conventional wisdom suggest that lower courts must
follow the most persuasive interpretations of U.S. Supreme Court precedent.
But that does not always happen. Scholars recognize judicial
underenforcement of Supreme Court precedent in several fields. This Essay
contributes to this scholarship by analyzing lower court applications of New
York State Rifle & Pistol Ass’n v. Bruen, in which the Supreme Court held
that firearm laws must be consistent with the nation’s historical tradition of
firearm regulation. The lower courts vary widely in their approaches to
analyzing gun laws under this standard. On one end, a small handful of
courts has required near historical twins or tight analogues to uphold
challenged regulations. Other courts feel comfortable upholding modern
gun laws based on historical enactments that are only remotely analogous.
Finally, some courts have avoided a historical inquiry entirely by fashioning
a “Bruen Step Zero” or by relying on pre-Bruen circuit precedent that they
find to be binding.
One impetus for Bruen was judicial underenforcement of the Second
Amendment in the decade following District of Columbia v. Heller. Whether
Bruen will experience the same fate remains to be seen. Accordingly, to
ensure that lower courts properly enforce Second Amendment claims, this
Essay suggests that the Supreme Court clarify the level of generality that
Bruen requires.
INTRODUCTION ...................................................................................... 2
I. HELLER AND ITS PROGENY ................................................................ 5
A. Pre-Heller Second Amendment Jurisprudence ..................... 5
B. The Heller Decision and Its Test .......................................... 7
C. Lower Court Applications of Heller ..................................... 9
1. “Assault Weapon” Bans ............................................... 10
2. Criminal Defendants .................................................... 11
II. NEW YORK STATE RIFLE & PISTOL ASSOCIATION V. BRUEN ............. 12
2 FORDHAM LAW REVIEW ONLINE [Vol. 92
A. Bruen’s Test ........................................................................ 12
B. How To Apply Bruen .......................................................... 14
III. LOWER COURT APPLICATIONS OF BRUEN .................................... 15
A. Requiring Tight Analogues ................................................. 15
B. Requiring Loose Analogues ................................................ 16
C. Avoiding History ................................................................ 18
1. Bruen Step Zero ........................................................... 18
2. Pre-Bruen Precedent as Binding .................................. 20
CONCLUSION ....................................................................................... 20
INTRODUCTION
The Constitution and conventional wisdom suggest that lower courts must
follow the most persuasive interpretations of U.S. Supreme Court precedent.
1
But that does not always happen.
2
Scholars recognize judicial
underenforcement of Supreme Court precedent in several fields.
3
Perhaps,
given the controversial nature of gun rights in the United States, it comes as
no surprise that the Second Amendment is included among them.
4
The
Second Amendment provides that “[a] well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.”
5
Although the Supreme Court has held
that this provision confers an individual right to possess
6
and carry
7
firearms
for self-defense, lower courts continue to grapple with the scope of this right.
May a nonviolent felon who has completed their sentence possess arms
2024] BRUEN AS HELLER 3
notwithstanding a federal lifetime prohibition?
8
Can someone who uses
marijuana, even in a state where its consumption is now legal, own a firearm
despite a federal law barring them from doing so?
9
May a state ban firearms
on all private property unless the owner explicitly allows them?
10
These are
all questions that lower courts continue to confront.
In District of Columbia v. Heller,
11
the Supreme Court affirmed that the
Second Amendment protects the right of individual citizens to keep and bear
arms for self-defense.
12
But because the majority did not explicitly prescribe
a level of scrutiny for courts to apply in Second Amendment cases, lower
courts filled the void.
13
Under means-end scrutiny, courts had little trouble
upholding most firearm regulations.
14
In fact, some scholars argued that their
analyses resembled the interest-balancing approach that the dissent
advocated in Heller.
15
Nearly a decade and a half later, the Supreme Court
attempted to halt judicial underenforcement of the Second Amendment in
New York State Rifle & Pistol Ass’n v. Bruen
16
by clarifying that modern gun
laws must be “consistent with the nation’s historical tradition of firearm
regulation.”
17
What happened after Bruen, however, is strikingly similar to Heller’s
postscript. By way of background, Bruen addressed New York’s
requirement that applicants for concealed-carry licenses show “proper cause”
to carry a handgun in public.
18
These “may-issue” laws, formerly in place in
a handful of states, are distinct from “shall-issue” laws, which condition carry
licenses only on objective criteria, such as background checks or training
courses.
19
After the Court decided Bruen, officials in many of the may-issue
4 FORDHAM LAW REVIEW ONLINE [Vol. 92
states expressed fear over the decision’s public-safety implications.
20
Predictably, those leaders responded by pushing the envelope on what is
constitutional. For instance, despite suggesting that Bruen would force New
York City to allow permit holders to carry firearms on public
transportation,
21
Mayor Eric Adams supported New York state’s post-Bruen
law outlawing firearms in almost all public places; this ban extended to
public transportation, places of worship, restaurants that serve alcohol,
entertainment facilities such as theaters and stadiums, protests, and Times
Square.
22
New Jersey even banned individuals from carrying loaded
firearms in their own cars.
23
Although appellate review of these regulations is just beginning, courts
continue to uphold many “sensitive place” restrictions, along with assault
weapon bans and criminal disarmament laws, just as they did after Heller.
24
In fact, many district courts and courts of appeals find themselves bound by
pre-Bruen circuit precedent that did not explicitly apply means-end scrutiny,
even if it circumvented historical analysis.
25
To be sure, exceptions can be
found, but the upshot is that most courts have upheld firearm regulations
since Bruen.
26
2024] BRUEN AS HELLER 5
This Essay proceeds in three parts. Part I discusses the background of the
Supreme Court’s first in-depth interpretation of the Second Amendment in
Heller and how lower courts have applied it. Part II addresses Bruen, which
clarified Heller’s methodology and applied it to New York’s gun licensing
regime. Finally, Part III argues that three relatively distinct camps of judicial
decisions applying Bruen have emerged. In one camp, courts have employed
tight analogical reasoning, perhaps even requiring historical twins, to uphold
a challenged regulation. Others have merely required loose analogues or a
handful of historical laws to do the same. Finally, other courts—based
entirely on either dicta in Heller and Bruen or pre-Bruen circuit precedent—
have declined to conduct a historical inquiry entirely. This Essay concludes
by suggesting that the Supreme Court clarify the level of generality required
under Bruen’s reasoning to ensure that lower courts adequately decide
Second Amendment claims.
I. HELLER AND ITS PROGENY
Heller was a watershed moment in Second Amendment jurisprudence.
The case confirmed that the Second Amendment protects an individual right
to keep and bear firearms for self-defense outside the context of militia
service.
27
But after Heller, most Second Amendment challenges to state and
federal gun regulations failed.
28
Part I.A discusses the history of the Supreme
Court’s Second Amendment jurisprudence before Heller. Part I.B covers the
decision itself. Finally, Part I.C describes how lower courts have applied
Heller.
A. Pre-Heller Second Amendment Jurisprudence
Before 2008, the Supreme Court’s most comprehensive discussion of the
Second Amendment came in United States v. Miller.
29
This 1939 decision
involved the indictments of two bandits who allegedly transported a sawed-
off shotgun in interstate commerce in violation of the National Firearms Act
of 1934
30
(NFA).
31
In actuality, the case was likely a fix, involving a corrupt
district court judge, to test the NFA’s constitutionality.
32
Upholding the
indictments, a unanimous Court, speaking through Justice James Clark
McReynolds, wrote:
In the absence of any evidence tending to show that possession or use of a
“shotgun having a barrel of less than eighteen inches in length” at this time
has some reasonable relationship to the preservation or efficiency of a well
6 FORDHAM LAW REVIEW ONLINE [Vol. 92
regulated militia, we cannot say that the Second Amendment guarantees
the right to keep and bear such an instrument.
33
Justice McReynolds went on to discuss the historical understanding of the
militia, along with its composition and duties.
34
Despite its “crabbed analysis,”
35
Miller interprets the Second Amendment
as conferring an individual right.
36
In its brief, the United States made two
arguments in support of the NFA: that the Second Amendment only applies
to militia members or, in the alternative, protects the right to keep and bear
arms for lawful purposes, excluding those weapons used by criminals.
37
The
Court was clearly persuaded by the second argument. In fact, Miller cited
Aymette v. State
38
for the proposition that the amendment protects weapons
that have a “reasonable relationship to the preservation or efficiency of a well
regulated militia.”
39
There, the Tennessee Supreme Court concluded that the
state constitution’s Second Amendment analogue did not guarantee the right
to carry a concealed Bowie knife because the provision protected only those
weapons “usually employed in civilized warfare, and that constitute the
ordinary military equipment.”
40
Thus, properly interpreted, Miller suggests
that the Second Amendment protects an individual right to keep and bear
arms that are commonly possessed and useful for militia service.
41
Lower courts twisted Miller into something it was clearly not, the history
of which is well-documented and need not be taken up at length here.
42
But
one case is worth mentioning. In Cases v. United States,
43
a criminal
defendant challenged, on Second Amendment grounds, an indictment that
charged him with possessing a firearm after being convicted of a crime of
violence.
44
The U.S. Court of Appeals for the First Circuit recognized the
actual holding of Miller, that is, that Congress “cannot prohibit the
possession or use of any weapon which has any reasonable relationship to
the preservation or efficiency of a well regulated militia.”
45
Deeming this
conclusion unacceptable on policy grounds, as it would seemingly protect the
private possession of arms like trench mortars and anti-aircraft guns, the
2024] BRUEN AS HELLER 7
court fashioned a new standard: each case “must be decided on its own facts
and the line between what is and what is not a valid federal restriction pricked
out by decided cases falling on one side or the other of the line.”
46
As one
commentator aptly put it, “While this is not much of a standard, it is a broad
license for judges to do what they want in right-to-arms cases.”
47
Decisions like Cases tore Miller apart in a saga that would ultimately be
capped by Justice John Paul Stevens’s dissent in Heller; there, he argued that
this view of Miller should be affirmed because “hundreds of judges” relied
upon it.
48
B. The Heller Decision and Its Test
In Heller, the Supreme Court ruled that a Washington, D.C., regulation
banning the possession of handguns violated the Second Amendment.
49
Although Justice Antonin Scalia’s opinion relied entirely on the text, history,
and tradition of the Second Amendment in reaching that conclusion, it failed
to establish explicitly a level of scrutiny for Second Amendment cases.
50
Nevertheless, the Court went beyond the facts of the case to include the
following paragraph that became a widely cited portion of the case:
Like most rights, the right secured by the Second Amendment is not
unlimited . . . . Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment, nothing 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.
51
A trailing footnote added that this list of “presumptively lawful” measures is
not exhaustive.
52
Justice Stevens, who dissented, persuaded Justice Anthony
M. Kennedy to insist that this language be inserted into the majority opinion
as the price of Justice Kennedy’s necessary fifth vote.
53
Although this paragraph became the most influential portion of the
opinion, additional aspects of Heller are important to recognize. The
decision’s core holding recognized that a ban on firearms in common use
violates the Second Amendment.
54
Additionally, Heller (1) implied that the
Second Amendment’s use of the term “the people” “unambiguously refers to
8 FORDHAM LAW REVIEW ONLINE [Vol. 92
all members of the political community, not an unspecified subset,”
55
despite
recognizing explicitly that the amendment protects “law-abiding, responsible
citizens;”
56
(2) relied on nineteenth-century case law recognizing a right to
carry firearms in public;
57
(3) rejected the argument that it is permissible to
ban one class of firearms in common use so long as the possession of other
firearms is allowed;
58
and (4) forbade subjecting the Second Amendment’s
core protections “to a freestanding ‘interest-balancing’ approach.”
59
Because Heller failed to prescribe an explicit method of review for Second
Amendment cases, lower courts filled the void. Prior to Bruen, all but one
court of appeals adopted the following two-step approach.
60
At step one,
courts established whether the challenged activity fell under the plain text
and historical scope of the Second Amendment.
61
If it did not, the analysis
ended there; the activity was unprotected by the Second Amendment.
62
However, if the activity did fall under the historical understanding of the
Second Amendment, or if the history was unclear, courts would move to step
two.
63
Here, they applied some level of means-end scrutiny to the challenged
regulation. If the regulation burdened what courts viewed as the “core” of
the Second Amendment—the right to armed self-defense in the home—strict
scrutiny applied.
64
Otherwise, courts utilized intermediate scrutiny.
65
Although variously defined, intermediate scrutiny essentially asks whether
a law burdening a constitutional right (1) furthers an important or substantial
governmental interest, and (2) whether the restriction on the right is no
greater than is essential to the furtherance of that interest.
66
Intermediate
scrutiny in the Second Amendment context proved easily malleable and
2024] BRUEN AS HELLER 9
allowed courts to uphold most gun regulations.
67
This was not necessarily
the result of intentional underenforcement of Heller. Almost every gun-
control regulation satisfies the first prong of intermediate or strict scrutiny,
as the government obviously has a compelling interest in preventing crime.
68
Therefore, the analysis necessarily devolved into an interest-balancing
inquiry, with the Second Amendment on one hand and public-safety
considerations on the other.
69
C. Lower Court Applications of Heller
In the years following Heller, law-abiding individuals, criminal
defendants, and public-interest groups filed a barrage of challenges to federal
and state gun laws, including may-issue laws,
70
assault weapon bans,
71
and
various provisions of the NFA
72
and the Gun Control Act of 1968
73
(GCA).
74
10 FORDHAM LAW REVIEW ONLINE [Vol. 92
Most of these challenges failed under intermediate scrutiny. Consider the
following examples detailing cases concerning assault weapon bans and
criminal defendants.
1. “Assault Weapon” Bans
Courts of appeals unanimously upheld bans on “assault weapons” and
“high-capacity magazines”
75
after Heller.
76
All but one of them applied
intermediate scrutiny.
77
New York State Rifle and Pistol Ass’n v. Cuomo
78
presents a typical
example of how these bans were upheld under intermediate scrutiny.
79
The
U.S. Court of Appeals for the Second Circuit first assumed that the banned
weapons are protected under the Second Amendment because they are in
common use.
80
In deciding whether to apply intermediate or strict scrutiny,
the court noted that the statutes did not implicate the “core” of the Second
Amendment to the same extent as the handgun ban at issue in Heller.
81
This
is because assault weapons are “not nearly as popularly owned and used for
self-defense as the handgun.”
82
Furthermore, the bans included “only a
limited subset of semiautomatic firearms,” so the court found intermediate
scrutiny appropriate.
83
Under the court’s assessment, the laws passed
intermediate scrutiny because they applied to “particularly hazardous
weapons” and were “targeted to prevent mass shootings.”
84
The court’s
application of intermediate scrutiny was exceedingly deferential to the
legislatures’ judgments.
85
By failing to consider less burdensome or
2024] BRUEN AS HELLER 11
restrictive alternatives, the analysis arguably resembled rational-basis
review.
86
Other courts upheld firearm regulations challenged by criminal defendants
without any historical analysis or heightened scrutiny, merely referencing
Heller’s “presumptively lawful” language.
92
A state court in California, for
instance, concluded—with no analysis other than a citation to Heller—that a
residential driveway constituted a sensitive place where the defendant could
be charged with unlawfully carrying a concealed weapon.
93
In other cases,
courts held, with similarly little analysis, that bans on firearms in certain
locations would withstand even strict scrutiny.
94
12 FORDHAM LAW REVIEW ONLINE [Vol. 92
While Part I detailed the progeny of Heller in the lower courts, Part II turns
to Bruen, which aimed to clarify Second Amendment jurisprudence.
II. NEW YORK STATE RIFLE & PISTOL ASSOCIATION V. BRUEN
Bruen rejected means-end scrutiny in Second Amendment challenges, but
it did not spring out of thin air. The routine rejection of Second Amendment
claims frustrated some Justices who saw it as evidence that the right was
being relegated to second-class status.
95
The decision can thus be seen as an attempt by the Supreme Court to place
some limits on firearm regulations. Part II.A addresses the test put forth by
Bruen. Part II.B discusses how lower courts may apply it.
A. Bruen’s Test
Bruen’s methodology explicitly rejected means-end scrutiny in the Second
Amendment context and held that:
When the Second Amendment’s plain text covers an individual’s conduct,
the Constitution presumptively protects that conduct. The government
must then justify its regulation by demonstrating that it is consistent with
the Nation’s historical tradition of firearm regulation. Only then may a
court conclude that the individual’s conduct falls outside the Second
Amendment’s “unqualified command.”
96
When a modern regulation “addresses a general societal problem” that has
existed throughout the nation’s history, a lack of firearm regulations
addressing that problem—or the presence of regulations that addressed the
problem in a materially different way—is evidence of the challenged
regulation’s invalidity.
97
At the same time, “unprecedented societal concerns
or dramatic technological changes may require a more nuanced approach.”
98
When a modern regulation would have been “unimaginable at the founding,”
judges should use analogical reasoning to determine whether a historical
regulation and a modern regulation are “relevantly similar.”
99
The Court
identified two metrics of central importance in this inquiry: “how and why
the regulations burden a law-abiding citizen’s right to armed self-
defense.”
100
Although “how and why” sounds somewhat reminiscent of
“means and ends,” the purpose of this test is to prevent “historic, burdensome
2024] BRUEN AS HELLER 13
laws that were enacted for one purpose from being used as a basis to impose
burdens for other purposes.”
101
The Court further clarified that analogical
reasoning “is neither a regulatory straightjacket nor a regulatory blank
check.”
102
The government need only identify “a well-established and
representative historical analogue, not a historical twin.”
103
When engaging in this historical inquiry, the relevant time period matters.
Courts should be wary of evidence that significantly predates or postdates the
Second Amendment’s and Fourteenth Amendment’s ratification in 1791 and
1868, respectively.
104
Evidence from around the time of the Founding in
1791 is particularly probative because the Fourteenth Amendment
incorporates the Bill of Right’s protections against the states to the same
extent as those protections originally existed against the federal
government.
105
Moreover, territorial regulations should not be given much
weight, particularly when they contradict earlier evidence, due to their
transient nature, lack of judicial scrutiny, and miniscule population
coverage.
106
Applying this test to New York’s may-issue law, the Court considered
evidence offered from “(1) medieval to early modern England; (2) the
American Colonies and the early Republic; (3) antebellum America; (4)
Reconstruction; and (5) the late-19th and early-20th centuries.”
107
Although
New York presented ample historical evidence, the Supreme Court found it
inapposite because the historical laws did not limit “public carry only to those
law-abiding citizens who demonstrate[d] a special need for self-defense” as
New York’s did.
108
Justice Stephen G. Breyer’s dissent saw matters differently, concluding
that “[t]he historical evidence reveals a 700-year Anglo-American tradition
of regulating the public carriage of firearms in general, and concealed or
concealable firearms in particular.”
109
This is instructive. The gap between
the majority’s and the dissent’s applications of analogical reasoning suggests
that courts following Bruen should require strong historical analogues before
upholding a challenged firearm regulation.
14 FORDHAM LAW REVIEW ONLINE [Vol. 92
B. How To Apply Bruen
Although means-end scrutiny no longer applies, the jury is still out on just
exactly how to employ Bruen’s test.
110
Some courts have treated it almost
mathematically by head counting historical analogues to the challenged
provision and then judging whether those analogues were representative
based on census data from the time of their enactment.
111
Other courts have
treated the analysis more liberally by categorizing historical regulations—
from sometimes even a small handful of laws—and then determining
whether the modern regulation fits within that category.
112
Scholars are also beginning to weigh in. Joseph Blocher and Eric Ruben
argue that courts should “operate at a high level of generality when
evaluating traditions of rights and regulations.”
113
Blocher and Reva Siegel
contend that Bruen provides governments with “broad authority” to pass
sensitive-place legislation.
114
On the other hand, Eugene Volokh suggests
that Bruen leaves room for “certain regulations that impose only minor
burdens.”
115
William Baude and Robert Leider argue that Bruen marks a
return to the general law approach, under which courts look “to history and
custom to understand the right.”
116
For example, under this view,
legislatures could not create sensitive places that “effectively deny people
most of the right to bear arms outside the home,” like regional public
transportation that many individuals rely on daily.
117
Ultimately, the Supreme Court will likely weigh in when it decides United
States v. Rahimi,
118
a challenge to the federal ban on possession of firearms
by someone subject to a domestic violence restraining order.
119
At oral
argument, the Solicitor General suggested that the Court establish a level of
generality so that lower courts need “not nit-pick” historical analogues.
120
2024] BRUEN AS HELLER 15
Until that decision, lower courts are left to reckon with Bruen itself, and the
following part explores just how they have done this.
III. LOWER COURT APPLICATIONS OF BRUEN
Adherence to Bruen lies on a continuum. At one end are courts requiring
tight analogues, potentially even historical twins, to uphold a challenged
regulation. Others are comfortable upholding modern laws based on loose,
or only a few, historical predecessors. Yet other courts have jettisoned
historical inquiry entirely by fashioning a Bruen “Step Zero” or by relying
on pre-Bruen circuit precedent. This Part proceeds in three sections that
address each camp individually.
A. Requiring Tight Analogues
Several courts have engaged in rigorous analogical reasoning under Bruen
by requiring tight historical analogues to uphold a challenged firearm
regulation. One such decision perhaps goes even beyond what Bruen
requires by searching for historical twins.
The defendant in United States v. Price
121
was charged with possession of
a firearm with an obliterated serial number in violation of 18 U.S.C.
§ 922(k).
122
In dismissing the indictment, the court took a relatively cramped
view of analogical reasoning, holding that the only reasonable analogies to
§ 922(k) are regulations requiring “firearm owners to keep an identifiable
mark on their firearm and never change or remove that mark, with criminal
penalties levied against violators.”
123
Price is probably an example of uncivil obedience, which is characterized
by hyperbolic or literalistic adherence to a legal command with the purpose
of changing that law.
124
At times, the court questions Bruen by invoking its
dissent,
125
and it uses somewhat terse language by claiming that a separate
portion of its decision is “[i]n keeping with Justice Thomas’ insistence that
‘law-abiding’ citizens are protected by the Second Amendment.”
126
By
comparison, another case addressing § 922(k) after Bruen held it
constitutional, and that court found several arguably close analogues in
eighteenth-century registration and taxation requirements that applied to
firearm owners.
127
Although Price appears vulnerable to reversal by the U.S.
16 FORDHAM LAW REVIEW ONLINE [Vol. 92
Court of Appeals for the Fourth Circuit sitting en banc, it is an early look into
how rigidly a court can treat Bruen’s historical inquiry.
128
Consider also the aforementioned case of United States v. Rahimi.
129
There, the U.S. Court of Appeals for the Fifth Circuit held that 18 U.S.C.
§ 922(g)(8), which prohibits those subject to domestic violence restraining
orders from possessing firearms, violates the Second Amendment.
130
The
Fifth Circuit rejected analogizing § 922(g)(8) to historical laws disarming
certain disloyal or dangerous individuals and to antebellum laws that
authorized officials to arrest anyone who carried arms in public in a terrifying
manner.
131
Unlike § 922(g)(8), the purpose of those historical regulations
was to protect society at large from armed rebellions rather than to protect a
particular individual from interpersonal violence.
132
In other words, the Fifth
Circuit thought § 922(g)(8) flunked the “why” portion of Bruen’s “how and
why” test.
133
This decision falls squarely within the tight analogical
reasoning camp. Other courts reviewing the same historical analogues
concluded that they sufficed to facially uphold § 922(g)(8).
134
The Supreme
Court will likely decide this split.
135
B. Requiring Loose Analogues
In contrast to the cases cited in the previous section, other courts have
interpreted Bruen as merely requiring that the government identify loose
analogues or a small handful of historical twins. Consider Antonyuk v.
Chiumento,
136
in which the Second Circuit upheld most of New York’s post-
Bruen designation of many sensitive places.
137
For instance, New York
pointed to six nineteenth-century laws that the court ultimately found
sufficient to uphold New York’s ban on firearms in bars and restaurants that
serve alcohol.
138
Only two of the state’s proffered analogues, however,
actually banned firearms in locations that serve alcohol.
139
If New York had
cited only those two laws, that clearly would not have been enough to uphold
the ban, as both were territorial enactments.
140
The other four laws either
prohibited intoxicated people themselves from carrying firearms or banned
2024] BRUEN AS HELLER 17
the sale of arms to intoxicated people.
141
Whether New York’s law is
“analogous enough” to those additional nineteenth-century laws is up for
debate.
142
Even assuming that it is, however, these six late nineteenth-
century laws only applied to 9.5 percent of the nation’s population.
143
Whether that makes them “well-established and representative” is far from
clear.
144
Indeed, other courts analyzing similar historical analogues have
struck down state laws prohibiting firearms in locations that serve alcohol.
145
The constitutionality of assault weapon bans under Bruen reflects a similar
division with respect to the level of generality required in analogical
reasoning. Recall that prior to Bruen, the courts of appeals upheld such bans
under intermediate scrutiny.
146
The only court of appeals to consider an
assault weapon ban since Bruen, the U.S. Court of Appeals for the Seventh
Circuit, held that it is likely constitutional.
147
Although the decision’s main
holding was that assault weapons are military weapons that fall outside the
arms protected by the Second Amendment,
148
it also addressed the historical
record.
149
The court found a broad tradition of restricting certain dangerous
weaponry like cannons, Bowie knives, small concealable arms, and machine
guns.
150
The dissent, on the other hand, found the same analogues inapposite
because they only prohibited the concealed carry of certain weapons rather
than their public carry—let alone possession in the home—altogether.
151
Additionally, the dissent criticized the majority’s invocation of twentieth-
century regulations, such as that of machine guns, as too distant from the
Founding in 1791 or the Fourteenth Amendment’s ratification in 1868 to
illuminate the scope of the Second Amendment.
152
The daylight between the majority and the dissent is illustrative. The
majority considered provisions regulating the carriage of certain weapons to
be analogous to a ban, while the dissent would not stretch the analogical
reasoning that loosely. Clearly, the majority is comfortable applying a much
looser form of analogical reasoning than the dissent is.
18 FORDHAM LAW REVIEW ONLINE [Vol. 92
C. Avoiding History
In many criminal cases, courts have avoided the analogical reasoning
prescribed by Bruen in one of two related ways. First, some have seized on
Heller’s “presumptively lawful” and “law-abiding, responsible citizen”
language, which they interpret as binding, despite Bruen announcing a new
test for Second Amendment claims. One academic has dubbed this “Bruen
Step Zero.”
153
Relatedly, other courts consider themselves bound by pre-
Bruen circuit precedent that upheld the constitutionality of the firearm
regulation at issue so long as it did not directly apply means-end scrutiny.
That precedent, in turn, is typified by its sole reliance on Heller’s
“presumptively lawful” or “law-abiding, responsible citizen” language.
Part III.C.1 explores Bruen Step Zero cases. Part III.C.2 discusses courts
that have considered themselves bound by pre-Bruen precedent.
1. Bruen Step Zero
The very first case to cite Bruen typifies Bruen Step Zero. Pervez v.
Becerra
154
concerned an individual who alleged that a past defective
psychiatric certification wrongly deprived her of her right to bear arms.
155
The court dismissed the impact that Bruen might have on the validity of the
California law in a single footnote that simply quoted Justice Kavanaugh’s
concurrence, which itself quoted Heller’s “presumptively lawful”
language.
156
Since Bruen, courts have almost uniformly rejected challenges to 18
U.S.C. § 922(g), the federal statute banning firearm possession by felons,
fugitives, drug users, and unlawful immigrants, among others.
157
Some of
these challenges have been dismissed with passing citations to Bruen and
Heller, generally by referencing (1) statements recognizing that the Second
Amendment applies to law-abiding and responsible citizens, (2) Heller’s
“presumptively lawful” language, or (3) Justice Kavanaugh’s Bruen
concurrence repeating Heller’s assurances.
158
In other words, these courts
2024] BRUEN AS HELLER 19
find that non-law-abiding individuals are not included in “the people”
protected by the Second Amendment.
159
As emblematic of Bruen Step Zero, take People v. Brown,
160
which
rejected a Second Amendment challenge by a defendant in New York City
accused of possessing a firearm without a license.
161
First, the court
essentially limited Bruen to its facts by concluding that the decision had no
impact on New York’s firearm laws other than the may-issue provision
specifically at issue in that case.
162
Because Brown did not apply for a
license, the court reasoned, he both lacked standing to challenge the relevant
licensing statute and was not law-abiding.
163
As an alternative holding, the
court noted that Brown did not attempt to show that he possessed a firearm
in “a place that would not be considered ‘sensitive’ under the dicta in Bruen
or under federal statutory location restrictions.”
164
In a footnote, the court
observed that the intersection at which Brown was arrested with a firearm is
“within two blocks” of “three churches, a public school, and a day care
center.”
165
Pause on this analysis. First, the court placed the burden on
Brown to show that he was not in a “sensitive” location at the time of his
arrest, notwithstanding Bruen’s clear instruction that the government
shoulders the burden of establishing the constitutionality of its firearm
regulations.
166
Further, its view of the scope of sensitive places is perplexing.
At the time of Brown’s arrest, neither state nor federal law prohibited
firearms at two of the three locations that the court identified.
167
In any event,
Bruen makes it clear that governments cannot simply designate a place as
sensitive and prohibit firearms there ipse dixit.
168
Brown is a masterclass in Bruen Step Zero. In fact, the court seems to rely
on every part of Bruen except its historical analysis. The following section
briefly addresses a related phenomenon: courts avoiding Bruen by relying
on pre-Bruen circuit precedent.
Bruen’s “law-abiding citizen” language sufficient to reject a challenge to § 922(g)(1)); cf.
People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (rejecting a Second Amendment challenge
to a state law banning firearm possession by felons on the ground that Bruen referenced “law-
abiding citizens” eighteen times).
159. See United States v. Riley, 635 F. Supp. 3d 411, 424 (E.D. Va. 2022) (“A plain reading
of the [Second Amendment] demonstrates that ‘the people’ remains limited to those within
the political community and not those classified as felons.”).
160. No. 71673-22, 2022 WL 2821817 (N.Y. Sup. Ct. July 15, 2022).
161. Id. at *1–2.
162. Id. at *3.
163. Id. at 2, 4.
164. Id. at *5.
165. Id. at *5 n.2.
166. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24 (2022).
167. Although both state and federal law generally prohibited firearms in school zones at
the time, see N.Y. PENAL LAW § 265.01-a; 18 U.S.C § 922(q)(2)(A), no federal nor state law
banned firearms at churches or day care centers then. New York’s Bruen-response legislation,
which does ban firearms at these places, see PENAL § 265.01-e(2)(c), (e), took effect months
after Brown’s arrest. See Concealed Carry Improvement Act, ch. 371, § 26, 2022 N.Y. Sess.
Laws 1463 (McKinney).
168. Bruen, 597 U.S. at 31.
20 FORDHAM LAW REVIEW ONLINE [Vol. 92
2. Pre-Bruen Precedent as Binding
Some courts have avoided a historical analysis of firearm regulations by
treating pre-Bruen circuit precedent as binding. This method is quite similar
to Bruen Step Zero because the precedent upon which these courts rely is
itself based on Heller’s dicta regarding presumptively lawful regulations.
Take Vincent v. Garland,
169
in which the U.S. Court of Appeals for the
Tenth Circuit affirmed after Bruen that as-applied challenges to § 922(g)(1)
are off the table.
170
The panel in Vincent viewed itself as bound by its
precedent in United States v. McCane,
171
a post-Heller decision that
categorically upheld § 922(g)(1).
172
McCane’s relevant analysis, contained
in one sentence, relied solely on Heller’s “presumptively lawful” language
and did not analyze whether that presumption could be rebutted.
173
Vincent
relied on Bruen’s endorsement of background checks and permitting regimes
that clearly exclude felons as evidence that it did not “indisputably and
pellucidly abrogate” McCane.
174
Scores of district courts have applied similar logic in § 922(g)(1) cases.
The precedent these cases rely upon is similar to McCane: it features no
means-end scrutiny and relies solely upon Heller’s dicta. For example, a
federal court in New York upheld § 922(g)(1) against a facial challenge
based solely upon pre-Bruen Second Circuit precedent, which itself was
based only on Heller’s presumption that bans on felons possessing arms are
constitutional.
175
Although panels of the courts of appeals—not to mention district courts—
are bound by the decisions of prior panels unless they are overruled by the
court sitting en banc or by the Supreme Court,
176
there is nevertheless
significant tension between a textual analysis of Heller’s “presumptively
lawful” safe harbor provision and the historical inquiry that Bruen demands.
CONCLUSION
If one thing is certain about Bruen, it is that lower courts have not
interpreted it consistently.
177
Although claims of Bruen’s unworkability are
overblown,
178
and doomsday predictions that Bruen would eviscerate wide
2024] BRUEN AS HELLER 21
swaths of gun laws have proven markedly false,
179
lower courts have failed
to come to a consensus regarding Bruen’s methodology.
180
Inevitably, some
degree of confusion in the lower courts is to be expected after the Supreme
Court announces a new legal standard.
181
However, to prevent lower courts
from misinterpreting or minimizing Bruen as they did to Heller and Miller,
the Supreme Court should clarify two key points. First, analogical reasoning
applies to all firearm regulations, regardless of whether they are being
challenged in a civil or criminal setting, notwithstanding Heller’s
presumptive safe harbor for some regulations such as felon disarmament.
Second, the Court should identify a particular level of generality to which
courts can analogize modern gun laws and historical antecedents. By
defining the categories of acceptable analogues broadly, decisions like
Chiumento uphold schemes that have the capacity to eviscerate one’s right to
bear arms. On the more seldom flip side, courts that rigidly cabin analogues
run the risk of striking down modern firearm regulations that lack well-
established and representative “historical twins,” as was arguably the case in
Price.
182
Neither of these outcomes are required under Bruen. The Supreme
Court just needs to make that clear.