1412
BRUEN ’S RICOCHET: WHY SCORED LIVE-FIRE
REQUIREMENTS VIOLATE THE SECOND AMENDMENT
INTRODUCTION
City of Boston residents who wish to carry a handgun for self-
defense must apply for a License to Carry Firearms (LTC) with the
Boston Police Department.
1
The application process includes numerous
steps, such as completing a license application, consenting to an inter-
view with a Firearms Licensing Official, successfully completing a crim-
inal background check, and furnishing a “Firearm Safety Certificate or
Hunting Safety Course Certificate issued by the Commonwealth of
Massachusetts.”
2
But the City’s LTC guidelines also state that appli-
cants must pass a shooting qualification test (Qualification Test) “at the
Boston Police Department Firearms Range at Moon Island within two
weeks of the date of the application.”
3
To pass the Qualification Test,
applicants must (1) “show the safe handling of, and familiarity with, a
.38 caliber, 4-inch barrel revolver” and (2) complete a scored live-fire
test.
4
Conditioning a handgun carry license on a scored live-fire exercise
violates the Second Amendment right to keep and bear arms.
5
In the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1
Owning a Firearm in Boston, CITY OF BOS. (July 19, 2021), www.boston.gov/owning-
firearm-boston [https://perma.cc/KQG2-543E]. The Boston Police Commissioner serves as the local
licensing authority for the City of Boston. Id.
2
Id.; License to Carry Firearms (LTC) Application Guidelines, BOS. POLICE DEP’T [herein-
after LTC Application Guidelines], www.boston.gov/sites/default/files/file/document_files/
2017/07/license-to-carry-firearms-guidelines.pdf [https://perma.cc/2CM3-JFMX] .
3
LTC Application Guidelines, supra note 2.
4
Owning a Firearm in Boston, supra note 1; see also Staying Legal, BOS. POLICE DEP’T,
bpdnews.com/staying-legal [https://perma.cc/5JCV-328M]; Matthew Medsger, Joe Dwinell &
Flint McColgan, Police Chiefs in Massachusetts Hold “Power” When It Comes to Gun Licenses,
B
OS. HERALD (June 4, 2022, 4:44 PM), www.bostonherald.com/2022/06/04/police-
chiefs-in-massachusetts-hold-power-when-it-comes-to-gun-licenses [https://perma.cc/73CG-V4QA]
(mentioning Boston’s scored live-fire test); Boston/Brookline Moon Island Practice Test,
M
ASS FIREARMS SCH., www.massfirearmsschool.com/class/boston-brookline-moon-island-
practice-test [https://perma.cc/2G7U-DUCA]. The City of Boston has not published an online ver-
sion of the Qualification Test’s instructions and procedures for prospective applicants. But many
local firearms schools, when advertising their respective training course offerings, have provided
more details about the Qualification Test. See id.; Boston Moon Island Practice Qualification
(BMIPQ), S
ALOMON FIREARMS TRAINING, salomonfirearms.com/product/boston-moon-
island-practice-qualification [https://perma.cc/K6FA-HKBD] (stating that the City of Boston
Qualification Test “is outdoors, and consists of firing a total of 30 rounds with a 4-inch .38 special
revolver, at a distance of 7 & 15 yards. . . . You need a minimum score of 210 points [out of 300] to
pass (70%)”); see also Brief for Appellee at 11, MacNutt v. Police Comm’r of Bos., 572 N.E.2d 577
(Mass. App. Ct. 1991) (No. 89-P-276) (describing the Qualification Test).
5
This Note uses the City of Boston’s LTC licensing regime illustratively. The Note’s argu-
ments apply to any licensing regime that requires — or contemplates requiring — scored live fire
as a condition for a handgun carry permit. For example, the Massachusetts City of Brookline also
imposes a scored live-fire requirement for LTC applicants. See Boston Moon Island Practice
2023] BRUEN’S RICOCHET 1413
wake of New York State Rifle & Pistol Ass’n v. Bruen,
6
municipalities
that wish to preserve sensible firearm regulation should understand the
constitutional limits of licensure requirements — promoting public
safety and upholding Second Amendment rights need not be mutually
exclusive.
Part I analyzes the statutory scheme for carrying firearms in the
Commonwealth of Massachusetts and describes the Qualification Test.
Part II outlines the constitutional framework for Second Amendment
cases, chronicling the evolution from a “reasonable regulation” stan-
dard
7
to the post-Bruen state of play. Part III applies that framework
to the Qualification Test, concluding that mandatory scored live-fire
exercises violate the Second Amendment, and briefly discusses legal
remedies.
I.
CARRYING HANDGUNS IN MASSACHUSETTS
This Part explores the statutory scheme for carrying handguns in the
Commonwealth of Massachusetts and discusses how the City of Boston
has chosen to augment state requirements for an LTC by implementing
the Qualification Test.
A. Statutory Requirements and Delegation
to Local Licensing Authorities
In Massachusetts,
8
any person seeking to possess a non–large capac-
ity
9
rifle or shotgun must apply for a “firearm identification card”
10
(FID) with a local licensing authority.
11
The licensing authority “shall
issue [the FID],” unless “it appears that the applicant is a prohibited
person.”
12
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Qualification (BMIPQ), supra note 4 (describing shooting tests). In Illinois, all applicants for a
Concealed Carry License “must pass a live fire exercise with a concealable firearm.” Frequently
Asked Questions, I
LL. STAT E POLICE, www.ispfsb.com/Public/Faq.aspx [https://perma.cc/
2LB6-ZEG2].
6
142 S. Ct. 2111 (2022).
7
See Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 716–19
(2007).
8
See generally MASS. GEN. LAW S ch. 140, §§ 121–131Y (2022).
9
A large capacity weapon includes “any firearm, rifle or shotgun . . . capable of accepting more
than ten rounds of ammunition in a rifle or firearm and more than five shotgun shells in the case
of a shotgun.” Id. § 121.
10
Id. § 129B(1).
11
Id. The statute defines “licensing authorities” as “the boards in Boston and other cities which
by special statutes or city charters have the power to issue licenses.” Id. § 1. In the context of
firearms licensure, local police commissioners generally serve as the licensing authorities. See
Medsger et al., supra note 4.
12
MASS. GEN. LAW S ch. 140, § 129B(1). For example, the statute classifies anyone convicted
of a felony, “misdemeanor punishable by imprisonment for more than 2 years,” violent crime, fire-
arms-related offense, certain drug offenses, or misdemeanor domestic violence as a “prohibited per-
son.” Id. § 129B(1)(i).
1414 HARVARD LAW REVIEW [Vol. 136:1412
Conversely, a License to Carry Firearms (LTC) entitles its holder “to
purchase, rent, lease, borrow, possess and carry” handguns, rifles, and
shotguns.
13
Either the colonel of state police or a licensing authority can
issue an LTC.
14
As with an FID, the statute bans “prohibited person[s]”
from obtaining an LTC.
15
Yet, unlike how it treats FIDs, which a local
licensing authority “shall issue” but for the “prohibited person” excep-
tion, the statute, until most recently, afforded local licensing authorities
broad discretion in approving LTC applications.
16
In this sense,
Massachusetts was long a “may-issue” state for handgun licensure
because it required showing “good reason” for an LTC.
17
After
the Bruen decision, Governor Baker signed into law Massachusetts
House Bill 5163,
18
which amended chapter 140, section 131(d) of the
Massachusetts General Laws and made Massachusetts, at least facially,
a shall-issue jurisdiction.
19
B. City of Boston LTC Requirements
The Boston Police Commissioner serves as the licensing authority
charged with issuing LTCs to Boston residents.
20
The Commissioner
historically possessed broad discretion, prior to the recent amendment
to chapter 140, section 131(d) of the Massachusetts General Laws, when
reviewing LTC applications.
21
Apart from submitting to an interview
with a Firearms Licensing Official and successfully completing a crimi-
nal background check, an LTC applicant must “[p]ass a shooting test at
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
13
Id. § 131(a).
14
Id. § 131(d). In practice, an applicant generally must apply for an LTC at a local police
department. See Medsger et al., supra note 4 (observing that Massachusetts gun laws “begin and
end with the local [police] chief”).
15
MASS. GEN. LAW S ch. 140, § 131(d). The definitional scope of “prohibited person” varies
between the FID and LTC contexts. See id. For example, in addition to the FID “prohibited
person” classifications described in section 129B, applicants younger than twenty-one years of age
are “prohibited persons” for LTC licensure. See id.
16
See id. (stating that licensing authorities or the colonel of state police “may issue” an LTC if
the applicant “has good reason to fear injury to the applicant or the applicant’s property or for any
other reason,” subject to restrictions (emphasis added)).
17
See id.; Ryan Curry, Note, An Evolving Right: The Shifting Core of the Second Amendment
and Its Effect on Public-Carry, 55 T
ULSA L. REV. 131, 132–33 (2019) (asserting that shall-issue
states grant “public-carry permits [for handguns] . . . so long as certain baseline requirements are
satisfied,” id. at 132, but may-issue states “often restrict[] public-carry to those applicants who
demonstrate some specific, enhanced need for self-defense,” id. at 133).
18
H.B. 5163, 192d Gen. Court, 2021–2022 Sess. (Mass. 2022).
19
See Shira Schoenberg, Here’s What Baker Signed, Amended, and Vetoed, COMMONWEALTH
(Aug. 10, 2022), commonwealthmagazine.org/state-government/heres-what-baker-signed-
amended-and-vetoed [https://perma.cc/N96N-LW7S]; H.B. 5163, 192d Gen. Court, 2021–2022 Sess.
(Mass. 2022) (amending § 131(d) by removing the earlier “good reason” language and stating that
the licensing authority or colonel of state police “shall issue” an LTC to any applicant who is not a
“prohibited person” or “unsuitable to be issued a license” under the statute).
20
Owning a Firearm in Boston, supra note 1.
21
See § 131(d) (stating that licensing authorities “may issue” a license to carry firearms).
2023] BRUEN’S RICOCHET 1415
the Boston Police Department Range”
22
within two weeks of applying
for licensure.
23
The Boston Police Department Range is located at Moon Island,
24
a
Boston Harbor island “located on a peninsula off Quincy’s Squantum
section”
25
about nine miles from Boston Police Headquarters. The lo-
cation has operated as a training facility for firefighters since 1959 and
for police since 1960.
26
Boston LTC applicants must appear at Moon
Island and demonstrate “safe handling of, and familiarity with, a .38
caliber, 4-inch barrel revolver.”
27
Though nowhere described on the
City of Boston website or the Boston Police LTC application materials,
the Moon Island test involves much more than displaying safe firearm
handling. In reality, applicants must shoot thirty rounds, at distances of
seven and fifteen yards, and receive a minimum of 210 points out of 300
on a scored target.
28
II.
CONSTITUTIONAL FRAMEWORK
This Part examines the current constitutional framework for Second
Amendment cases, chronicling the evolution from a highly deferential
standard to the current focus on the Second Amendment’s plain text
and “historical tradition.”
29
Tracing these doctrinal developments will
underscore how drastically Bruen altered the constitutional paradigm
for assessing firearm regulations like the Qualification Test.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
22
Boston Police Department Firearms License Application Process, BOS. POLICE DEP’T,
www.boston.gov/sites/default/files/embed/b/bpd_firearms_license_application_process.pdf
[https://perma.cc/J4A9-5HDK].
23
LTC Application Guidelines, supra note 2.
24
Id.
25
Boston Police Officer Grazed by Bullet at Moon Island Firing Range, Sent to Hospital,
WCVB (May 26, 2022, 1:05 PM), www.wcvb.com/article/boston-police-officer-grazed-by-
bullet-moon-island-firing-range/40117234# [https://perma.cc/WH24-LLJN].
26
Moon Island, NAT’L PARK SERV., www.nps.gov/boha/learn/historyculture/facts-
moon.htm [https://perma.cc/3PZ8-R3FZ].
27
Owning a Firearm in Boston, supra note 1.
28
Boston Moon Island Practice Qualification (BMIPQ), supra note 4. This test started in 1981.
See MacNutt v. Police Comm’r of Bos., 572 N.E.2d 577, 578–79 (Mass. App. Ct. 1991). Twelve
rounds must be fired from a distance of seven yards and the remaining eighteen rounds from a
distance of fifteen yards. See id. at 578 n.2. Some rounds need to be fired “double action, with a
one hand hold.” Id. at 579 n.2. Most modern revolvers can be fired either in single-action or double-
action modes. In single-action mode, the shooter must “manually pull the hammer back” and then
pull the trigger to fire the round. Double-Action (DA)/Single-Action (SA), U.S.
CONCEALED
CARRY ASS’N, www.usconcealedcarry.com/resources/terminology/types-of-firearms/dou-
ble-action-single-action [https://perma.cc/33DT-M6XF]. Alternatively, double-action firing means
consecutive “shots may be fired by repeatedly pulling the trigger until all rounds have been fired.”
Id.
29
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2127 (2022).
1416 HARVARD LAW REVIEW [Vol. 136:1412
A. The “Reasonable Regulation Standard”
Prior to District of Columbia v. Heller
30
and McDonald v. City of
Chicago,
31
many judges presumed that the right to keep and bear arms
existed “subject to reasonable restriction by the government.”
32
Courts
therefore employed what some have called the “reasonable regulation
standard,”
33
which resembled rational basis review, but with a smidgeon
more bite.
34
Most firearm restrictions would survive this reasonableness
review.
B. An Individual Right that Applies to the States
After Heller and McDonald settled that the Second Amendment con-
ferred an individual right to bear arms applicable to the states,
35
circuit
courts soon adopted a two-step framework for challenged gun control
laws. In United States v. Marzzarella,
36
for example, the Third Circuit
endorsed a “two-pronged approach to Second Amendment chal-
lenges.”
37
In the first step, the court would ask whether the chal-
lenged law burdens “conduct falling within the scope of the Second
Amendment’s guarantee.”
38
If not, the inquiry ceased, and the chal-
lenged law was upheld.
39
But if so, the court would then deploy “some
form of means-end scrutiny” to determine whether the law was consti-
tutional.
40
The second step involved two steps of its own — the level of
scrutiny depended on “(1) how close the law c[ame] to the core of the
Second Amendment right, and (2) the severity of the law’s burden on
the right.”
41
Thus, the “two-step approach” could actually involve four
separate questions. This approach often led to applying intermediate
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
30
554 U.S. 570 (2008).
31
561 U.S. 742 (2010).
32
Nordyke v. King, 319 F.3d 1185, 1192–93 (9th Cir. 2003) (Gould, J., concurring).
33
Winkler, supra note 7, at 716.
34
Id. at 717–18 (describing how courts “[went] through the formal motions of identifying the
underlying governmental objectives” and individual burdens, but the “individual almost never
[won]” under the reasonable regulation standard).
35
See Heller, 554 U.S. 570 (holding that the Second Amendment confers an individual armed
self-defense right); McDonald, 561 U.S. 742 (holding that the Second Amendment applies to the
states through the Fourteenth Amendment’s Due Process Clause). These cases utilized a “text and
history” approach to Second Amendment challenges. See Heller, 554 U.S. at 595.
36
614 F.3d 85 (3d Cir. 2010).
37
Id. at 89.
38
Id.
39
Id.
40
Id.
41
United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013) (quoting Ezell v. City of Chicago,
651 F.3d 684, 703 (7th Cir. 2011)).
2023] BRUEN’S RICOCHET 1417
scrutiny,
42
but it seemed highly susceptible to judicial caprice and un-
tethered interest balancing.
43
C. Bruen and the End of Means-End Scrutiny
The Supreme Court recently revisited its Second Amendment juris-
prudence in New York State Rifle & Pistol Ass’n v. Bruen.
44
In Bruen,
two applicants for an unrestricted handgun carry license sued the su-
perintendent of the New York State Police and a New York Supreme
Court justice for violating their Second Amendment rights.
45
The li-
censing officers denied their applications for failure to show “proper
cause” for an unrestricted handgun carry license, as required by state
law.
46
Before reaching the merits, the Court declined to follow the two-
step approach, holding that it was “one step too many.”
47
The second
step of the inquiry, which required interest balancing and means-end
scrutiny, was “inconsistent with Heller’s historical approach.”
48
The
Court underscored that “the Constitution presumptively protects” indi-
vidual conduct covered in “the Second Amendment’s plain text.”
49
For
a gun control regulation to pass constitutional muster, the government
must demonstrate that it “is consistent with the Nation’s historical tra-
dition of firearm regulation.”
50
The Court then held that New York’s
“proper-cause requirement” violated the right of “law-abiding citizens
with ordinary self-defense needs” to keep and bear arms.
51
Bruen changed the state of play for Second Amendment cases by (1)
discontinuing the old two-step approach and (2) tasking the government
with establishing that a gun control law comports with the historical
understanding of firearm regulation. What specifically troubled the
majority was the impermissible discretion that state licensing officers
exercised when determining whether a suitable applicant for a general
handgun license adequately showed a “special need” for unrestricted
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
42
But see Duncan v. Becerra, 970 F.3d 1133 (9th Cir. 2020) (concluding that a California ban
on large capacity magazines (LCMs) “severely burden[ed] the core of the” Second Amendment right,
id. at 1143, so strict scrutiny applied, id. at 1159). Applying strict scrutiny, the panel held that
California’s LCM ban could not survive. Id. at 1143. The Ninth Circuit en banc upheld the LCM
ban. See Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021) (en banc).
43
For discussion of whether lower courts may have underenforced the Heller and McDonald
decisions, see George A. Mocsary, A Close Reading of an Excellent Distant Reading of Heller in the
Courts, 68 D
UKE L.J. ONLINE 41 (2018).
44
142 S. Ct. 2111 (2022).
45
Id. at 2125.
46
Id. at 2122–25. The applicants wished to carry their handguns in public for “general self-
defense,” but the state placed restrictions on their handgun carry licenses, such as limiting public
carry for “hunting and target shooting only” or during travel “to and from work.” Id. at 2125.
47
Id. at 2126–27.
48
Id. at 2129.
49
Id. at 2126.
50
Id. at 2129–30.
51
Id. at 2156.
1418 HARVARD LAW REVIEW [Vol. 136:1412
carry.
52
Thus, regulators could plausibly argue that Bruen addressed
solely the unconstitutionality of restricting handgun carry licenses in a
may-issue regime after an applicant has met other licensure require-
ments, like general suitability. Though discretion in assessing an
enhanced need for an unrestricted handgun license is now unconstitu-
tional, the government may posit that discretion in granting the license
itself may not be.
This argument falls short. Admittedly, the New York gun law in
question addressed a particularized set of facts — two licensees seeking
to remove carry restrictions on their licenses.
53
But the Court empha-
sized that its decision applied not just to handgun carry restrictions like
the ones at issue in this case.
54
“[T]he government must affirmatively
prove that its firearms regulation” comports with historical tradition,
55
and the Court underscored that any individual conduct covered by the
“Second Amendment’s plain text” — not solely restrictions on already-
issued handgun carry licenses — deserves constitutional protection.
56
Thus, despite Bruen’s narrow facts, its holdings cast a wide net.
The majority’s discussion of analogical reasoning in applying the
historical approach also merits attention. By changing the constitutional
paradigm for Second Amendment cases from the two-step method
57
to
an exclusively historical approach for conduct covered by the Second
Amendment’s plain text, one could argue that the Court replaced the
old two-step method’s circularity with a similarly unmoored and un-
quantifiable historical test. Namely, judges need a rubric to decide
whether a firearm law was “unimaginable at the founding,”
58
and the
Court did not supply it.
Justice Thomas, who delivered the Court’s opinion, acknowledged
that any such historical inquiry “will often involve reasoning by anal-
ogy.”
59
But analogical reasoning can be tricky in a Second Amendment
context because “[e]verything is similar in infinite ways to everything
else.”
60
Disclaiming that it would not “provide an exhaustive survey”
61
of how to assess the relevant similarity between two regulations under
the Second Amendment, the Court emphasized two helpful guideposts:
“how and why the regulations burden a law-abiding citizen’s right to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
52
Id. (quoting In re Klenosky, 428 N.Y.S.2d 256, 257 (App. Div. 1980)).
53
See supra note 46; Bruen, 142 S. Ct. at 2125. In this sense, New York deemed the applicants
suitable to carry handguns generally but determined that they did not demonstrate “proper cause”
for unrestricted carry. See id.
54
See id. at 2127.
55
Id. (emphasis added).
56
Id. at 2126.
57
See supra notes 37–43 and accompanying text.
58
Bruen, 142 S. Ct. at 2132.
59
Id.
60
Id. (quoting Cass R. Sunstein, Commentary, On Analogical Reasoning, 106 HARV. L. REV.
741, 774 (1993)).
61
Id.
2023] BRUEN’S RICOCHET 1419
armed self-defense.”
62
Thus, when reviewing a challenged gun control
law, courts must decide whether (1) the modern (that is, the challenged)
and historical regulations impose “a comparable burden” on individual
self-defense and (2) the “burden is comparably justified.”
63
Yet Second
Amendment analogical reasoning “is neither a regulatory straightjacket
nor a regulatory blank check.”
64
Courts should not uphold every mod-
ern firearm regulation that “remotely resembles a historical analogue.”
65
At the same time, the government does not need to establish the exis-
tence of a “historical twin” — only a “well-established and representa-
tive historical analogue.”
66
The majority highlighted that its analysis should not be “interpreted
to suggest the unconstitutionality of . . . ‘shall-issue’ licensing regimes”
67
that “often require applicants to undergo a background check or pass a
firearms safety course.”
68
Such objective tests that do not involve exer-
cising discretion or “formation of an opinion” presumptively pass con-
stitutional muster.
69
Nevertheless, Justice Thomas made no reference
to scored live-fire tests.
70
Indeed, a conventional firearms safety course
is not the same as a scored marksmanship test. A firearms safety course
typically “provides . . . proper education on how to handle, use, store,
and transport guns.”
71
Firearms safety courses almost never involve
scored live fire — many do not even include a live-fire component.
72
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
62
Id. at 2133 (emphasis added).
63
Id.
64
Id.
65
Id.
66
Id.
67
Id. at 2138 n.9. For more on shall-issue licensing regimes, see Curry, supra note 17.
68
Bruen, 142 S. Ct. at 2138 n.9. Justice Thomas suggested that these restrictions are consistent
with the historical tradition of limiting public carry to “law-abiding, responsible citizens.” Id. (quot-
ing District of Columbia v. Heller, 554 U.S. 570, 635 (2008)); see also Mark Frassetto, Firearms and
Weapons Legislation Up to the Early Twentieth Century 41 (Jan. 15, 2013) (unpublished
manuscript), papers.ssrn.com/sol3/papers.cfm?abstract_id=2200991 [https://perma.cc/E887-
ULTE] (listing Pennsylvania statutes from 1776 and 1779 that permitted disarming “non-
associators” and “persons disaffected to the liberty and independence of [the] state”). But some have
argued that certain mandatory firearms safety courses may be unconstitutional. See Md. Shall
Issue v. Hogan, 566 F. Supp. 3d 404 (D. Md. 2021) (challenging state requirement for mandatory
firearms safety training that includes live fire), appeal filed, No. 21-2017 (4th Cir. Sept. 10, 2021);
see also Randy Barnett, A Minor Impact on Gun Laws but a Potentially Momentous Shift in
Constitutional Method, SCOTUS
BLOG (June 27, 2022, 5:00 PM), www.scotusblog.com/
2022/06/a-minor-impact-on-gun-laws-but-a-potentially-momentous-shift-in-constitutional-method
[https://perma.cc/LPH8-GVCU].
69
Bruen, 142 S. Ct. at 2138 n.9.
70
Nor does the opinion directly discuss the constitutionality of safe-handling and weapons-
familiarity conditions assessed in person by a licensing official. The Qualification Test contains
these requirements as well. See sources cited supra note 4.
71
Gun Owner Safety Training, EVERYTOWN FOR GUN SAFETY, www.everytown.org/
solutions/safety-training/#introduction [https://perma.cc/4DD4-SBSC].
72
See, e.g., Courses for Students, NAT’L RIFLE ASS’N, firearmtraining.nra.org/student-
courses [https://perma.cc/L2PN-57KN] (describing four-hour gun safety course “that is conducted
1420 HARVARD LAW REVIEW [Vol. 136:1412
Tellingly, the City of Boston considers its marksmanship test and fire-
arms safety course distinct requirements, noting on its LTC application
guidelines that applicants must complete both a firearms safety course
and a marksmanship test at the Boston Police firing range.
73
Thus, it
does not follow from the majority opinion that marksmanship tests,
though they arguably rely on “narrow, objective, and definite stand-
ards,”
74
are constitutional. And by observing that even shall-issue “per-
mitting scheme[s] can be put toward abusive ends” when they “deny
ordinary citizens their public right to carry,” the opinion suggests the
opposite.
75
Justice Alito’s concurring opinion observed that the Court “decide[d]
nothing about who may lawfully possess a firearm or the requirements
that must be met to buy a gun.”
76
Regulators may point to this language
as support for maintaining certain licensing requirements, such as a
scored live-fire shooting test. But this argument fails to persuade. First,
these opinions have no precedential value in light of the majority opin-
ion, which the concurring Justices joined.
77
Second, even if they did,
Justice Alito’s primary objective was to note that Justice Breyer’s dis-
sent,
78
which focused on “the dangers of gun violence,”
79
was inapposite
in a case about an unconstitutional handgun licensing regime.
80
Thus,
when mentioning “requirements” and “who may lawfully possess a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
in the classroom only” (emphasis added)). This National Rifle Association (NRA) safety course is
emblematic of the typical firearms safety course required by shall-issue jurisdictions. See, e.g.,
Approved Basic Firearms Safety Course List Updated, C
OMMONWEALTH MASS., https://
www.mass.gov/doc/approved-basic-firearms-safety-course-list-0/download [https://perma.cc/53V6-
DLYK] (listing this course as an approved firearms safety course); Acceptable Firearms
Training Documentation, F
LA. DEP’T AGRIC. & CONSUMER SERVS., www.fdacs.gov/
Consumer-Resources/Consumer-Rights-and-Responsibilities/Concealed-Weapon-License/Applying-
for-a-Concealed-Weapon-License/Acceptable-Firearms-Training-Documentation [https://perma.cc/
2L9D-NL9Z] (explaining that applicants can show “proof of competency with a firearm” for a
Florida concealed weapon license by completing “[a]ny National Rifle Association firearms
safety or training course”); Illinois Concealed Carry Approved Curriculum, I
LL. STAT E POLICE,
www.ispfsb.com/Public/Documents/CCWCurriculumList.pdf [https://perma.cc/PU4F-BWW9]
(listing NRA Home Firearm Safety Course as an approved firearms safety course for a concealed
carry license).
73
Owning a Firearm in Boston, supra note 1.
74
Bruen, 142 S. Ct. at 2138 n.9.
75
Id.
76
Id. at 2157 (Alito, J., concurring).
77
See Thomas B. Bennett et al., Divide & Concur: Separate Opinions & Legal Change, 103
C
ORNELL L. REV. 817, 839 (2018) (“[L]ower courts should follow the majority opinion . . . . [They]
must follow binding precedent and ignore concurring opinions . . . .”). Justices Alito, Kavanaugh
(joined by Chief Justice Roberts), and Barrett filed concurring opinions. Because they all joined
the majority opinion, however, these “vanilla concurrences” have “no impact” and “count[] for noth-
ing” legally. Id. at 847.
78
Bruen, 142 S. Ct. at 2156 (Alito, J., concurring).
79
Id. at 2163 (Breyer, J., dissenting) (discussing gun policy and conceding that the Court’s hold-
ings severely impede states from “passing laws that limit, in various ways, who may purchase, carry,
or use firearms of different kinds”).
80
Id. at 2157 (Alito, J., concurring) (questioning the utility of gun violence statistics in this
context).
2023] BRUEN’S RICOCHET 1421
gun,”
81
Justice Alito was most likely signaling that prohibited-person
provisions, which proscribe gun licensure for certain classes (such as
felons),
82
remain unaffected by the Court’s decision. Still, states cannot
enforce any law “that effectively prevents its law-abiding residents from
carrying a gun” for armed self-defense.
83
Justice Kavanaugh’s concurrence, joined by Chief Justice Roberts,
emphasized that shall-issue regimes “may [still] require a license appli-
cant” to submit to fingerprinting, a criminal and mental health back-
ground check, and “training in firearms handling and in laws on the use
of force, among other possible requirements.”
84
Lawmakers could argue
that a live-fire marksmanship test falls within this ambit. But “training
in firearms handling” primarily involves classroom instruction, weapons
handling, and occasionally, live fire.
85
It is different from a scored live
fire, or marksmanship, test.
86
Even if all firearms safety courses pass
constitutional muster, conditioning a handgun carry license on demon-
strating sufficient accuracy with the weapon, or even “safe handling of”
and “familiarity with” it, via an in-person examination with a licensing
official exceeds the conventional understanding of “training in firearms
handling.”
87
The concurrence also asserted that shall-issue regimes imposing cer-
tain threshold requirements — like background checks and fingerprint-
ing — are constitutionally permissible, but they must “operate in that
manner in practice.”
88
Thus, a shall-issue state cannot institute over-
reaching suitability requirements — including objective ones
89
— if they
infringe the self-defense right or amount to “open-ended discretion.”
90
III.
APPLYING THE CONSTITUTIONAL FRAMEWORK
TO THE QUALIFICATION TEST
Firearm regulations face exacting scrutiny post-Bruen. This Part
asks whether conditioning LTC receipt on satisfactory performance of a
scored live-fire test violates an applicant’s Second Amendment rights.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
81
Id.
82
See, e.g., supra notes 12, 15 (Massachusetts prohibited-person provisions).
83
Bruen, 142 S. Ct. at 2157 (Alito, J., concurring).
84
Id. at 2162 (Kavanaugh, J., concurring). But see supra note 68.
85
See NRA Basic Pistol Shooting for Massachusetts LTC, U.S. CONCEALED CARRY
A
SS’N, training.usconcealedcarry.com/class/nra-basic-pistol-shooting-for-massachusetts-ltc/
66b842de-941a-11ec-991d-02420a000193 [https://perma.cc/Y7H2-C2HZ] (describing pistol training
course that satisfies Massachusetts LTC requirement and includes eight hours of classroom instruc-
tion and one hour of range time).
86
The City of Boston’s LTC application guidelines list both a state-compliant firearms safety
course and a marksmanship test as requirements. See LTC Application Guidelines, supra note 2.
87
Id.
88
Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring).
89
See Barnett, supra note 68 (questioning whether conditioning a handgun carry license on
sixteen hours of firearms safety instruction would fail the Bruen test).
90
Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring).
1422 HARVARD LAW REVIEW [Vol. 136:1412
Arguing that it does, the Part concludes with a brief discussion of legal
remedies.
A. Historical Firearm Regulations Do Not Include
Scored Shooting Tests
Putting aside any constitutional questions that the Massachusetts
gun laws raise,
91
the City of Boston’s Qualification Test comports with
the plain text of the amended state statute.
92
Massachusetts law does
not forbid a licensing authority, like the Boston Police Commissioner,
from engaging in the practice.
93
But the Qualification Test must survive
Bruen analysis on its own accord.
Before engaging in that analysis, this Note observes that
Massachusetts employs, at least facially, a shall-issue regime for
handgun carry licenses.
94
The Bruen Court held that shall-issue regimes
that “contain only ‘narrow, objective, and definite standards’” are usu-
ally constitutional.
95
These objective standards include “undergo[ing] a
background check or pass[ing] a firearms safety course.”
96
The City of
Boston could presumptively argue that its Qualification Test, which re-
quires an LTC application to obtain a quantifiable point tally on a
scored target, is the type of objective test that Justice Thomas deemed
constitutional.
But that contention misconstrues Bruen. First, the Bruen majority
did not hold that all objective licensing requirements are constitutional,
for even an objective test must not “deny ordinary citizens their right to
public carry.”
97
And a shall-issue permitting scheme “can be put toward
abusive ends.”
98
Because the Qualification Test requires applicants to
fire a heavy, unpopular handgun accurately,
99
which not everyone can
do, it impedes law-abiding citizens from exercising their armed self-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
91
The amended Massachusetts statute permits the licensing authority to deny licensure to any-
one “unsuitable to be issued a license.” Act of Aug. 10, 2022, 2022 Mass. Acts ch. 175, § 7. The
Court in Bruen recognized that narrowly tailored “suitability” provisions are constitutional as long
as they “appear to operate” like an ordinary shall-issue statute. Bruen, 142 S. Ct. at 2123 n.1.
Though the City of Boston could argue that the Qualification Test is lawful because it comports
with the state statute (in essence, an inaccurate shooter is “unsuitable” for licensure), the City would
still need to establish that the Qualification Test is consistent with the historical tradition of firearm
regulation under Bruen.
92
Act of Aug. 10, 2022, 2022 Mass. Acts ch. 175.
93
See MASS. GEN. LAW S ch. 140, § 131(a) (2022) (A licensing authority may impose “such re-
strictions relative to the possession, use or carrying of firearms as the licensing authority considers
proper.”).
94
See sources cited supra note 19.
95
Bruen, 142 S. Ct. at 2138 n.9 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969)).
96
Id.
97
Id.
98
Id.
99
See The Top Selling Guns of 2021, GUN GENIUS, www.gungenius.com/top-
selling/guns/the-top-selling-guns-of-2021 [https://perma.cc/X49C-RB9H] (listing the twenty-one top
selling firearms in 2021, none of which was the type of .38 revolver used on the Qualification Test).
2023] BRUEN’S RICOCHET 1423
defense right — the right to public carry is reserved only for those who
shoot well with a heavy handgun. Second, Justice Thomas stated that
background checks and firearms safety courses are constitutional, but a
shooting qualification test is not a firearms safety course.
100
Thus,
Bruen does not support the proposition that scored live-fire tests survive
judicial scrutiny. The Qualification Test’s quantitative characteristics
may mitigate its constitutional deficiencies but do not cure them. In
addition to accuracy, the Qualification Test demands that applicants
show “safe handling of, and familiarity with, a .38 caliber, 4-inch barrel
revolver.”
101
The City of Boston does not provide any concrete guide-
lines, like a scoring rubric, for the safe-handling requirement, and
licensing officials may have differing opinions on the matter. Such re-
quirements do not resemble the “narrow, objective, and definite stand-
ards”
102
that Justice Thomas referenced as per se constitutional.
Under Bruen, “when the Second Amendment’s plain text covers an
individual’s conduct,” a court may conclude that a gun control law
passes constitutional muster only if the government establishes that the
firearm regulation at issue “is consistent with this Nation’s historical
tradition of firearm regulation.”
103
The Qualification Test requires LTC
applicants to demonstrate safe handling of a .38 revolver and to obtain
a requisite number of points on a scored target.
104
Thus, we must ask
whether that regulation — conditioning LTC receipt on satisfactory safe
handling and accuracy — (1) is covered by the Second Amendment’s
plain text and (2) accords with historical firearm regulation.
105
Moreover, the burden would fall on the City of Boston to prove that the
Qualification Test comports with that historical tradition.
106
100
The City of Boston considers the firearms safety course and shooting qualification test to be
distinct requirements. See LTC Application Guidelines, supra note 2.
101
Owning a Firearm in Boston, supra note 1.
102
Bruen, 142 S. Ct. at 2138 n.9 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969)).
103
Id. at 2126.
104
Brief for Appellee, supra note 4, at 12.
105
See Bruen, 142 S. Ct. at 2129–30.
106
See id. at 2135.
107
Id. at 2129–30.
108
LTC Application Guidelines, supra note 2; see also sources cited supra note 4.
109
U.S. CONST. amend. II.
1424 HARVARD LAW REVIEW [Vol. 136:1412
who cannot fire thirty rounds accurately on a scored target with a .38
revolver and demonstrate safe handling of that weapon.
110
A four-inch
.38 revolver weighs roughly thirty-four ounces unloaded
111
and has a
trigger pull of twelve to fifteen pounds in double-action mode.
112
A
Glock nine-millimeter, a common self-defense weapon, weighs about
twenty-two ounces unloaded, and its trigger weight registers around six
pounds.
113
Some applicants may lack the stamina and strength, due to
age or disability, to pass the Qualification Test with a .38 revolver, but
could pass a truncated version of the test (that is, firing fewer rounds)
or if allowed to use a different handgun.
114
Even if an individual can
safely and accurately shoot one handgun model, a Boston LTC applicant
must display accuracy and adroitness with a heavy .38 revolver.
Accordingly, the answer to this threshold textual question is undoubt-
edly yes.
115
To identify a historical analogue, we must determine how and why the
Qualification Test “burden[s] a law-abiding citizen’s right to armed self-
defense.”
117
First, the “how”: the Qualification Test impedes the self-
defense right by restricting public carry only to those who can shoot a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
110
See sources cited supra note 4.
111
See, e.g., Smith & Wesson 10, GUNS.COM, www.guns.com/firearms/handguns/revolver/
smith-&-wesson-10-38-spl-p-6-rounds-4-barrel-new?p=54236 [https://perma.cc/YQX4-E7FB].
112
See Brad Miller, Spring Rates and Trigger Pull Weights, SHOOTING TIMES (Aug. 27, 2020),
www.shootingtimes.com/editorial/spring-rates-and-trigger-pull-weights/383919 [https://
perma.cc/6RTR-9E8W]. The trigger pull is four to six pounds in single-action mode. Id.
113
See Richard Mann, 25 of the Best Handguns Ever, FIELD & STREAM (Dec. 1, 2021, 8:54
AM), www.fieldandstream.com/25-best-handguns-ever [https://perma.cc/SZ3L-LM9L] (not-
ing that the Glock 17, a nine-millimeter pistol, “has become one of the most recognized pistols in
the world”); Glock
17 — The Original, GLOCK, us.glock.com/en/pistols/g17 [https://
perma.cc/S8ZT-9HTU].
114
Professor Nicholas J. Johnson, law professor and NRA-Certified Pistol Instructor, has con-
curred with this inference, based on more than ten years of experience as a certified handgun in-
structor. Email from Nicholas J. Johnson, Professor of L., Fordham Univ. (Oct. 30, 2022) (on file
with the Harvard Law School Library); see also Arming the Disabled: A Self-Defense and Concealed
Carry Guide for People with Disabilities, A
MMO.COM, ammo.com/articles/disabled-self-
defense-concealed-carry-guide-people-with-disabilities [https://perma.cc/V6NB-PEMS] (suggesting
that, though small-caliber and “mini” revolvers are suitable for certain disabled people, heavier
revolvers may pose challenges for those who do not “have enough finger strength to fully engage
the trigger”).
115
Bruen’s first step usually yields a “yes” answer because a gun regulation almost always re-
stricts firearm carry and possession in some way. See, e.g., United States v. Quiroz, No. PE:22-CR-
00104-DC, 2022 WL 4352482, at 4, 13 (W.D. Tex. Sept. 19, 2022) (concluding that federal law
preventing individuals under felony indictment from possessing firearms is (1) covered by the
Second Amendment’s plain text and (2) not consistent with the historical tradition of firearm
regulation).
116
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131–34 (2022).
117
Id. at 2133.
2023] BRUEN’S RICOCHET 1425
.38 revolver with a four-inch barrel accurately and demonstrate safe
handling of and familiarity with the weapon. Second, the “why”: though
the City of Boston has not explicitly stated why it has chosen to burden
the armed self-defense right with its Qualification Test, it seems reason-
able to infer that the Qualification Test seeks, at least partially, to pro-
mote public safety by ensuring that only qualified shooters possess and
carry handguns.
118
Next, we must search for analogous historical firearms regula-
tions — ones that burdened the self-defense right in a “relevantly simi-
lar” way.
119
This analogical test “is neither a regulatory straightjacket
nor a regulatory blank check.”
120
Courts should not uphold a modern
gun regulation “that remotely resembles a historical analogue.”
121
At
the same time, the government need not prove the existence of a “his-
torical twin.”
122
For example, laws have long proscribed carrying “fire-
arms in sensitive places such as schools and government buildings.”
123
But which places society considers “sensitive” change over time —
courts must therefore determine whether historical analogues exist to
justify the modern prohibition.
124
With the historical methodology limned, the burden would then pass
to the City of Boston to establish the appropriate historical analogue.
Unfortunately, Bruen does not offer much guidance on how to complete
this historical analysis, and some have compared this phase to “Plato’s
unknown.”
125
On the one hand, the City need not show a historical
tradition of municipalities administering marksmanship tests in the
exact same manner — same weapon, same scoring, same rules. That
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
118
See Gould v. Morgan, 907 F.3d 659, 662 (1st Cir. 2018) (observing that Massachusetts firearm
laws are “part of a large regulatory scheme to promote the public safety” (quoting Commonwealth
v. Dav i s , 343 N.E.2d 847, 849 (Mass. 1976))). The five states with the highest rates of unintentional
shooting deaths are Alabama, Kentucky, North Carolina, Missouri, and Georgia. Unintentional
Shootings, E
DUC. FUND TO STOP GUN VIOLENCE, efsgv.org/learn/type-of-gun-violence/
unintentional-shootings [https://perma.cc/4386-ZZG5]. Conversely, “[s]tates with strong gun laws
have been found to be associated with lower unintentional firearm injuries.” Id.
119
Bruen, 142 S. Ct. at 2132 (quoting Sunstein, supra note 60, at 773).
120
Id. at 2133.
121
Id. (quoting Drummond v. Robinson Township, 9 F.4th 217, 226 (3d Cir. 2021)).
122
Id.
123
Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)); see also Frassetto, supra
note 68, at 88–93.
124
See Bruen, 142 S. Ct. at 2133. In Bruen, the Court held that New York, in arguing that all
“places where people typically congregate” are “sensitive places” in which the government could
prohibit handgun carry, “define[d] the category . . . far too broadly.” Id. at 2134. Thus, a historical
analogue for “declar[ing] the island of Manhattan a ‘sensitive place’” did not exist. See id.
125
United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482, at *8 (W.D. Tex. Sept.
19, 2022). Though lower courts have not precisely delimited the scope of this burden, early indica-
tions suggest that it is demanding. See, e.g., id. (finding that the government failed to show that
prohibiting people under felony indictment from possessing firearms comports with the historical
tradition); Firearms Pol’y Coal., Inc. v. McCraw, No. 21-cv-1245-P, 2022 WL 3656996 (N.D. Tex.
Aug. 25, 2022) (finding the same for a Texas firearm law proscribing public handgun carry for
people between ages eighteen and twenty).
1426 HARVARD LAW REVIEW [Vol. 136:1412
would be a “historical twin” and “regulatory straightjacket.”
126
On the
other hand, the City would have to do more than merely establish the
existence of any restriction on public carry in any context — that ap-
proach would “risk[] endorsing” a regulatory outlier “that our ancestors
would never have accepted.”
127
More likely, a court would require the
City to substantiate an American tradition of limiting public carry to
those who can shoot a prescribed firearm accurately and handle it
safely.
128
(a) Early American Firearm Regulation. — When dredging up his-
torical sources to assist with Second Amendment challenges, “not all
history is created equal.”
129
Bruen commands that the focus must re-
main on how the people who codified the constitutional rights under-
stood them.
130
Thus, the relevant time periods become the amendments’
adoption dates — 1791 (Second Amendment) and 1868 (Fourteenth
Amendment).
131
Moreover, a “regular course of practice” may help illu-
minate confounding “terms & phrases.”
132
Importantly, laws adopted
after ratification that conflict “with the original meaning of the [Second
Amendment’s] text obviously cannot overcome or alter that text,” and
if “later history contradicts” the Second Amendment’s text, “the text
controls.”
133
The historical tradition indicates a broad armed self-defense right
that all citizens possessed, irrespective of marksmanship. Professors
George Mocsary and David Kopel, as well as Joseph Greenlee, authored
an amicus brief in Bruen, surveying several historical sources to ascer-
tain how the Founding era understood the armed self-defense right and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
126
Bruen, 142 S. Ct. at 2133.
127
Id. (quoting Drummond v. Robinson Township, 9 F.4th 217, 226 (3d Cir. 2021)).
128
See id. at 2138. The Bruen Court’s approach to analogical reasoning appears highly circum-
scribed. For example, to determine whether New York’s “proper cause” requirement comported
with the American tradition of firearm regulation, the Court searched for historical analogues — co-
lonial period laws that “required law-abiding, responsible citizens to ‘demonstrate a special need
for self-protection distinguishable from that of the general community’ in order to carry arms in
public.” Id. at 2156 (quoting In re Klenosky, 428 N.Y.S.2d 256, 257 (App. Div. 1980)). The Court
did not deem that task a hunt for a historical twin. See id.
129
Id. at 2136.
130
Id.
131
Id. Accordingly, anachronistic historical evidence, such as ancient practice, may not provide
assistance if “linguistic or legal conventions changed in the intervening years.” Id. Importantly,
“the public understanding of” Second Amendment rights in 1791 and 1868 “was, for all relevant
purposes, the same with respect to public carry.” Id. at 2138.
132
Chiafalo v. Washington, 140 S. Ct. 2316, 2326 (2020) (quoting Letter from James Madison to
Spencer Roane (Sept. 2, 1819), in 8 W
RITINGS OF JAMES MADISON 450 (G. Hunt ed., 1908)).
133
Bruen, 142 S. Ct. at 2137 (quoting Heller v. District of Columbia, 670 F.3d 1244, 1274 n.6
(D.C. Cir. 2011) (Kavanaugh, J., dissenting)). Justice Thomas acknowledged that “unprecedented
societal concerns or dramatic technological changes may require a more nuanced approach” to an-
alogical reasoning, and the Second Amendment’s “historically fixed meaning” can apply to “new
circumstances,” like modern firearms that did not exist at ratification. Id. at 2132.
2023] BRUEN’S RICOCHET 1427
firearm regulation.
134
For instance, the 1689 English Bill of Rights cites
King James II’s disarmament of his subjects as a reason for his over-
throw,
135
suggesting that “[p]eaceable carry for self-defense” was a pro-
tected right in the English tradition.
136
William Blackstone, when
describing the “absolute rights” of individuals, discussed the “right of
personal security” and the derivative right to bear arms for self-defense
in 1765.
137
“By the time of the founding, the right to have arms” was a
fundamental English right.
138
Moreover, the Framers understood the
perils of forced disarmament by the government that occurred through-
out English history.
139
Nor did the armed self-defense right “stop at the domestic door-
step.”
140
Thomas Jefferson, when describing the fundamental laws of
nature and important principles of self-government, described the “right
and duty to be armed at all times.”
141
After the Boston Massacre in
1770, where British Redcoats shot and killed Crispus Attucks and four
other American colonists, John Adams, as defense counsel for the British
soldiers, acknowledged that “every private person is authorized to arm
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
134
Brief of Amici Curiae Professors of Second Amendment Law et al. in Support of Petitioners,
Bruen (No. 20-843).
135
An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the
Crown (Bill of Rights), 1689, 1 W. & M. (Eng.); see also 6 W. S .
HOLDSWORTH, A HISTORY OF
ENGLISH LAW 241 (1924) (citing reasons for King James II’s demise, including his refusal to allow
certain subjects “the right to carry arms for self-defence”).
136
Brief of Amici Curiae Professors of Second Amendment Law, supra note 134, at 7.
137
1 WILLIAM BLACKSTONE, COMMENTARIES 125–27, 136, 139; see also 4 id. at 30 (not-
ing that the law of nature, “self-defense its primary canon,” permits the killing of a violent assailant,
but a person “ought rather to die . . . than escape by the murder of an innocent”). Though the Bruen
Court recognized that certain restrictions on carrying firearms may pass constitutional muster, see
Bruen, 142 S. Ct. at 2133, it upheld the notion of armed self-defense as a “fundamental right,” see
id. at 2151.
138
District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008) (citing the English Bill of Rights
and Blackstone). Though the English tradition protected the right to bear arms and can serve as a
historical reference point, the American right was more expansive. See Brief of Amicus Curiae
Professors of Second Amendment Law, supra note 134, at 19; W
ILLIAM RAW L E, A VIEW OF THE
CONSTITUTION OF THE UNITED STATES OF AMERICA 70 (Portage 2011) (1829) (“No clause in
the Constitution could by any rule of construction be conceived to give to congress a power to
disarm the people.”). Conversely, the English right to bear arms was more “cautious[]” and subject
to “conditions . . . as allowed by law.” See id. (quotation omitted). Founding-era lawyer William
Rawle stated, however, that the American right to bear arms “ought not . . . be abused to the dis-
turbance of the public peace,” and unlawful firearm use would constitute a criminal offense. Id. at
71.
139
1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF
REFERENCE TO THE CONSTITUTION AND LAW S, OF THE FEDERAL GOVERNMENT OF THE
UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA 143 n.41 (Philadelphia, William
Young Birch & Abraham Small 1803) (“Whoever examines the forest and game laws in the British
code will readily perceive that the right of keeping arms is effectually taken away from the people
of England.”).
140
Joyce Lee Malcolm, The Right to Carry Your Gun Outside: A Snapshot History, 83 LAW &
CONTEMP. PROBS. 195, 196 (2020).
141
Letter from Thomas Jefferson to John Cartwright (June 5, 1824), in 16 THE WRITINGS OF
THOMAS JEFFERSON 42, 45 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).
1428 HARVARD LAW REVIEW [Vol. 136:1412
himself.”
142
Several Founding-era statutes even mandated public carry
“for public-safety reasons,”
143
and evidence of an early American tradi-
tion of restricting public carry is scant.
144
Some firearm regulation did occur in the early colonial period. A
1692 Massachusetts statute empowered justices of the peace to arrest
“all affrayers, rioters, disturbers or breakers of the peace” and anyone
who “shall ride, or go armed offensively before” any royal officers or
ministers “in fear or affray of their majesties’ liege people.”
145
The
Bruen Court observed, however, that this statute “merely codified the
existing common law offense of bearing arms to terrorize the people.”
146
Likewise, some laws prohibited the concealed carry of “Pocket Pistol[s],
Skeines, Stilettoes, Daggers or Dirks, or other unusual or unlawful
Weapons.”
147
Thus, there is a historical tradition of prohibiting con-
cealed carry of unusual or unlawful weapons, and the Supreme Court
has said as much in Heller.
148
But even using the broadest form of
analogical reasoning, proscribing armed terrorization of the public and
the concealed carry of unusual weapons cannot serve as valid historical
analogues for a marksmanship test.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
142
Brief of Amici Curiae Professors of Second Amendment Law, supra note 134, at 6 (quoting 3
JOHN ADAMS, LEGAL PAPERS OF JOHN ADAMS 248 (Wroth & Zobel eds., 1965)).
143
Heller, 554 U.S. at 601.
144
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2142 (2022) (“[T]here is little evidence
of an early American practice of regulating public carry by the general public.”).
145
An Act for the Punishing of Criminal Offenders, ch. 11, 1692 Mass.-Bay Province Acts &
Laws 237, 239; see also Brief of Amici Curiae Professors of History and Law in Support of
Respondents at 11–12, Bruen (No. 20-843) [hereinafter Brief of Amici Curiae Professors of History
and Law] (citing very similar 1699 New Hampshire statute and colonial era legal commentator to
demonstrate historical “restrictions on carrying dangerous weapons”); Brief of Amicus Curiae
Patrick J. Charles in Support of Neither Party app. at 1–67, Bruen (No. 20-843) (citing laws from
the late nineteenth century that required a license for concealed carry of dangerous weapons).
146
Bruen, 142 S. Ct. at 2143.
147
An Act Against Wearing Swords, &c, ch.9, 1686 N.J. Laws, 289, 289–90.
148
Heller, 554 U.S. at 626. The Framers understood that the Second Amendment right is “not a
right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever pur-
pose.” Id. Some have argued that racial animus motivated much of the firearm regulation during
the Founding era. See Brief of Amici Curiae Firearms Pol’y Coal. et al. in Support of Appellants
at 8–9, Md. Shall Issue v. Hogan, 971 F.3d 199 (4th. Cir. 2020) (No. 21-2017) [hereinafter Brief of
Amici Curiae Firearms Pol’y Coal. et al.]. A 1792 Virginia statute prohibited Black people from
“keep[ing] or carry[ing] any gun, powder, shot, club, or other weapon whatsoever, offensive or de-
fensive.” Act of Dec. 17, 1792, ch. 103, 1792 Va . A cts 195, 196. Kentucky had a similar law that
barred Black people and Native Americans from possessing firearms, unless free and working as a
“house-keeper.” Brief of Amici Curiae Firearms Pol’y Coal. et al., supra, at 9. An 1806 Virginia
law required free Black people to obtain a license to own a firearm. Act of Feb. 4, 1806, ch. 94,
1805 Va . A cts 274. But other scholars have pushed back on the “gun control is racist” narrative.
See Patrick J. Charles, Racist History and the Second Amendment: A Critical Commentary, 43
CARDOZO L. REV. 1343, 1376 (2022) (arguing that legitimizing either the “gun control is racist”
or “Second Amendment is racist” narratives will result in “long-term societal harm”). But see
NICHOLAS JOHNSON, NEGROES AND THE GUN: THE BLACK TRADITION OF ARMS (2014)
(discussing the “black tradition of arms” in the United States and chronicling “a tradition of
church folk, merchants, and strivers, the very best people in the community, armed and commit-
ted to the principle of individual self-defense,” id. at 13).
2023] BRUEN’S RICOCHET 1429
Marksmanship and safe-handling requirements in the context of fire-
arm possession are entirely absent from the historical tradition. Some
have even criticized colonial militiamen for their “indifferent shots” and
“the relatively low ratio of British casualties to the shots fired.”
149
These
deficiencies persisted through the Civil War, with one study “esti-
mat[ing] that Yankee troops fired 1000 rounds for every bullet that ac-
tually struck a Confederate soldier.”
150
In fact, two Civil War veterans,
“dismayed by the lack of marksmanship shown by their troops,”
founded the National Rifle Association in 1871 to “promote and encour-
age rifle shooting on a scientific basis.”
151
Accurate shooting was not a
prerequisite for firearm possession, or even military service, in the
Founding era.
152
Mark Frassetto created a compendium of early American gun laws,
organized by category and historical period.
153
This compendium lists
sixteen separate categories of historical firearm regulation, including
brandishing, concealed carry, dueling, and militia regulation.
154
Frassetto’s work demonstrates that some states proscribed concealed
public carry of unconventional weapons
155
and firearm possession for
minors.
156
Yet none of the roughly 1000 laws cited conditioned public
carry on marksmanship or scored live fire. In fact, many laws mandated
public firearm carry.
157
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
149
MICHAEL STEPHENSON, PATRIOT BAT T L E S 14 (2007). But see NICHOLAS J. JOHNSON,
DAV I D B. KOPEL, GEORGE A. MOCSARY, E. GREGORY WALLACE & DONALD KILMER,
F
IREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY 305
(3d ed. 2022) (observing that the Americans who fought in the 1775 Battle of Bunker Hill “were all
good marksmen” (quoting D
AV I D RAMSAY, A HISTORY OF THE AMERICAN REVOLUTION 190
(Lester H. Cohen ed., Liberty Fund 1990) (1789))).
150
Ron Elving, The NRA Wasn’t Always Against Gun Restrictions, NPR (Oct. 10, 2017, 5:00
AM), www.npr.org/2017/10/10/556578593/the-nra-wasnt-always-against-gun-restrictions
[https://perma.cc/GTP6-8KY7].
151
A Brief History of the NRA, NAT’L RIFLE ASS’N, home.nra.org/about-the-nra
[https://perma.cc/R4QR-DJXV].
152
Nor was firearm training a prerequisite. See Brief of Amici Curiae Firearms Pol’y Coal. et
al., supra note 148, at 25 (“No law prior to the Fourteenth Amendment’s ratification — including
the colonial, founding, and early republic periods — preconditioned firearm ownership on train-
ing.”). In fact, when the Second Amendment was ratified, “every state required ordinary citizens
to own firearms.” Id. at 26 (emphasis added) (citing state statutes).
153
See Frassetto, supra note 68.
154
Id. at 9, 13, 37, 64.
155
See id. at 7 (citing 1837 Georgia statute that prohibited public carry of certain unconventional
weapons, except “such pistols as are known and used,” like horseman’s pistols).
156
See id. at 75 (noting 1856 Alabama law that made it a misdemeanor to “sell, or give, or lend
to any male minor a pistol”).
157
See id. at 65 (listing 1782 Delaware law that imposed a fine for failing to be armed “at all
times” and 1757 Massachusetts statute that required every military-aged male to “appear with arms
and ammunition” for military exercises); see also Brief of Amici Curiae Professors of History and
Law, supra note 145, at 18–25 (discussing gun regulations after the Civil War, including an 1871
Texas statute that proscribed carrying pistols absent “reasonable grounds for fearing an unlawful
attack” that is “immediate and pressing,” id. at 20). In Bruen, Justice Thomas acknowledged that
1430 HARVARD LAW REVIEW [Vol. 136:1412
The Supreme Court has recognized some other “longstanding” fire-
arm prohibitions, based on its text-and-history approach, such as re-
stricting the “possession of firearms by felons and the mentally ill” and
“forbidding the carrying of firearms” in schools and government build-
ings.
158
Though these examples elucidate what the Framers understood
as acceptable firearm restrictions and may be useful in assessing other
Second Amendment challenges, it remains difficult to detect an analog-
ical thread — even an attenuated one — to conditioning handgun carry
on marksmanship and discretionary safe-handling requirements.
Some historians have suggested that the Supreme Court has adopted
a faulty historical approach. Professor Saul Cornell has argued that the
Second Amendment conferred neither an individual nor a collective
right to armed self-defense but a “civic right that guaranteed that citi-
zens would be able to keep and bear those arms needed to meet their
legal obligation to participate in a well-regulated militia.”
159
This view,
Cornell contends, “emphasizes that there can be no right to bear arms
without extensive regulation.”
160
Cornell thus posits that both gun con-
trol and gun rights advocates apply flawed frameworks in their Second
Amendment analyses.
161
Critics have questioned the viability of
Cornell’s thesis and have contended that “it gives only a partial, selec-
tive, and often unreliable account of the development of the American
right to arms.”
162
Indeed, it seems odd to suggest that the government
can essentially regulate away the fundamental constitutional right to
keep and bear arms. Moreover, the Heller Court cast doubt on Cornell’s
argument by refusing to adopt it to settle the individual-collective de-
bate.
163
And Cornell’s points have limited salience when the task at
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
this statute and two state cases opining on it “support[ed] New York’s proper-cause requirement.”
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2153 (2022). But he considered it an
“outlier[],” noting that the Court could not “stake [its] interpretation of the Second Amendment
upon a single law . . . that contradicts the overwhelming weight of other evidence.” Id. Moreover,
historical evidence from the late nineteenth century “cannot provide much insight into the Second
Amendment” when it conflicts with earlier evidence. Id. at 2154.
158
Bruen, 142 S. Ct. at 2162 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)).
In Heller, Justice Scalia did not engage in detailed historical analysis to derive this list but consid-
ered the measures “presumptively lawful.” Heller, 554 U.S. at 626–27 & n.26; see also Brief in
Opposition to Writ of Certiorari at 21–26, 32, Bruen (No. 20-843) (citing historical firearms re-
strictions from “fourteenth-century England through the founding era” that “prohibited carrying
firearms where people typically congregated, such as at fairs and markets,” id. at 32).
159
SAUL CORNELL, A WELL-REGULATED MILITIA 2 (2006).
160
Id. at 213.
161
Id. at 1–2.
162
David T. Hardy, A Well-Regulated Militia: The Founding Fathers and the Origin of Gun
Control in America, 15 W
M. & MARY BILL RTS. J. 1237, 1242 (2007) (reviewing CORNELL, supra
note 159).
163
Heller, 554 U.S. at 622.
2023] BRUEN’S RICOCHET 1431
hand is to hunt for concrete historical analogues to marksmanship and
safe-handling requirements.
164
Admittedly, it is logically impossible to prove nonexistence. Though
courts have not fully grappled with Bruen step two, initial treks into
“Plato’s unknown” suggest that the government faces a demanding
task.
165
At the time of the ratification of the Second and Fourteenth
Amendments, there was an American tradition of an expansive right to
firearm possession and public carry, circumscribed by restrictions on
certain classes of people deemed a threat to public security, usually be-
cause of race or criminal history. Neither these nor other colonial pro-
hibitions on using firearms to terrorize the citizenry, concealing unusual
weapons, and carrying weapons in certain public places, can function
as an analogical thread to marksmanship and firearm handling condi-
tions — to suggest otherwise would amount to a “regulatory blank
check” that the Bruen Court rebuked.
166
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
164
Cornell does discuss some colonial laws about firearm regulation, including militia statutes
that allowed the government to “keep track of who had firearms” and regulate the storage of gun-
powder. C
ORNELL, supra note 159, at 27. He also points to an eighteenth-century Massachusetts
law that prohibited “residents from storing loaded firearms in any domestic dwelling.” Id. at 28.
But that statute prohibited “the depositing of loaded Arms in the Houses of” Boston. See Act of
Mar. 1, 1783, ch. 46, 1782 Mass. Acts 119. The law did not restrict public carry of loaded weapons;
nor did it condition the right to carry loaded firearms on marksmanship or facility with the weapon.
For further discussion of Second Amendment interpretive questions, see Jack N. Rakove, The
Second Amendment: The Highest Stage of Originalism, 76
CHI.-KENT L. REV. 103, 165 (2000),
which suggests that Founding-era “fears rooted in the historical memories of the eighteenth century”
are anachronistic. Professor Jack Rakove does not suggest that the historical record is replete with
comprehensive restrictions on the right to armed self-defense. See id. at 103–13. In an amicus brief
in Heller, various professors argued “that the private keeping of firearms was manifestly not the
right that the framers . . . guaranteed in 1789.” Brief of Amici Curiae Jack N. Rakove et al. in
Support of Petitioners at 2, Heller (No. 07-290). They cite the English Bill of Rights 1689, which
conditions the right to possess firearms on subjective suitability provisions, as evidence that
Parliament “did not read [the Bill of 1689] as establishing a broad-gauged right” to bear arms. Id.
at 6–7. Though looking at “English history and custom before the founding makes some sense”
because the Framers “codified a right inherited from our English ancestors,” see N.Y. State Rifle &
Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2138–39, Americans sought to codify a much more expansive
armed self-defense right in the Second Amendment, see supra note 138. It would therefore be
improper to tether the American conception of armed self-defense entirely to the English Bill of
Rights 1689. The remainder of the brief discusses how the historical record supports a collective
Second Amendment right, as opposed to an individual one. See Brief of Amici Curiae Jack N.
Rakove et al., supra. The arguments are not germane to this discussion because (1) the Supreme
Court held the opposite in Heller — the Second Amendment confers an individual right to bear
arms, Heller, 554 U.S. at 622 — and (2) the amici do not delineate a historical tradition of firearm
regulation that meets Bruen’s analogical reasoning requirements.
165
See, e.g., United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482, at *13 (W.D.
Tex. Sept. 19, 2022) (unconstitutional to prohibit persons under felony indictment from possessing
firearms); Firearms Pol’y Coal., Inc. v. McCraw, No. 21-cv-1245-P, 2022 WL 3656996, at *6 (N.D.
Tex. Aug. 25, 2022) (unconstitutional to prohibit eighteen-to-twenty-year-olds from carrying hand-
guns in public for self-defense).
166
Bruen, 142 S. Ct. at 2133.
1432 HARVARD LAW REVIEW [Vol. 136:1412
B. Legal Remedies
Based on the City of Boston’s facially unconstitutional licensing re-
gime, any Boston resident can seek declaratory, injunctive, and mone-
tary relief for the City’s infringing the constitutional right to keep and
bear arms under the Second Amendment, as applied to the states by the
Fourteenth Amendment’s Due Process Clause.
167
This Note does not
purport to discuss all the mechanics of either standing or § 1983 liability.
As a general matter, however, it bears mentioning that an aggrieved
applicant could assert a plausible claim for declaratory, injunctive, and
monetary relief against City of Boston licensing officials, the colonel of
the Massachusetts State Police, and certain state firearms officials, sub-
ject to any affirmative defenses raised by the government.
168
A suit
against the City of Boston could also proceed under a Monell theory.
169
But the Eleventh Amendment would bar suit against the Commonwealth
of Massachusetts in federal and state courts.
170
C
ONCLUSION
Jurisdictions that require applicants for handgun carry licenses to
complete a shooting qualification test need to furnish affirmative proof
that conditioning the armed self-defense right on a scored live-fire
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
167
See 42 U.S.C. § 1983 (“Every person who, under color of any statute . . . of any State . . . ,
subjects . . . any citizen . . . to the deprivation of any rights . . . secured by the Constitution . . . shall
be liable to the party injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .”). Aggrieved applicants would need to have standing. The “irreducible constitutional
minimum for standing” demands three elements: (1) “an ‘injury in fact,’” Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992), that is “concrete and particularized . . . [and] ‘actual or imminent,’” id.
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)), (2) a “causal connection between the
injury and the conduct complained of,” id., and (3) the potential for redressability, id. at 561.
Moreover, facially unconstitutional policies can deter the exercise of constitutional rights and pre-
cipitate judicial review. See Dimmitt v. City of Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993).
Here, prospective applicants lacking experience with a .38 revolver may choose not to apply for an
LTC after reading the City’s LTC application guidelines. The City’s policies therefore chill the
armed self-defense right.
168
Admittedly, qualified immunity would shield state and city officials from money damages
when performing “discretionary functions.” See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
However, qualified immunity would not apply to violations of “clearly established . . . constitutional
rights of which a reasonable person would have known.” Id. And it would not shield them in a
claim for declaratory or injunctive relief under § 1983. See County of Sacramento v. Lewis, 523
U.S. 833, 841 n.5 (1998).
169
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (“[M]unicipalities and other local
government units [are] . . . among those persons to whom § 1983 applies.”).
170
The Eleventh Amendment also applies to suits against a state by citizens of the same state in
federal court, see Hans v. Louisiana, 134 U.S. 1 (1890), and in state court, see Alden v. Maine, 527
U.S. 706, 712 (1999). Nonetheless, certain defendants can be sued under an Ex parte Young theory
when § 1983 does not apply (such as state officers in their official capacity) but only in claims for
equitable relief. See Note, Interpreting Congress’s Creation of Alternative Remedial Schemes, 134
H
ARV. L. REV. 1499, 1506 & n.62 (2021). But see David Sloss, Ex Parte Young and Federal
Remedies for Human Rights Treaty Violations, 75
WASH. L. REV. 1103, 1165 n.300 (2000) (discuss-
ing declaratory relief with Young).
2023] BRUEN’S RICOCHET 1433
exercise comports with the historical tradition of firearm regula-
tion
171
— no such tradition exists. This Note is more than a litigation
roadmap, however, and does not argue that all firearm restrictions are
unlawful. But certain ones, like the Qualification Test, do not pass con-
stitutional muster. Exploring these constitutional contours will help cit-
izens and lawmakers better understand the scope and limits of what the
Second Amendment protects. The right to armed self-defense and pro-
moting public safety need not be irreconcilable ends.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
171
Bruen, 142 S. Ct. at 2129–30.