1950
IMPLEMENTING THE RIGHT TO KEEP AND
BEAR ARMS AFTER BRUEN
Eugene Volokh*
For a wide range of individual rights, the government can justify certain restrictions
on the right in at least four kinds of ways: (1) by showing that the restriction is outside
the scope of the right, as defined by text, original meaning, and other factors; (2) by
showing that it only modestly burdens the exercise of the right; (3) by showing that it
serves sufficiently strong countervailing government interests; or (4) by showing that
the government has special power as proprietor when it comes to behavior that uses
its property.
Bruen rejected countervailing-government-interests arguments for the Second
Amendment, and focused on scope arguments. But it also seemed to endorse some
kinds of modest burden arguments, and didn’t foreclose the possibility of govern-
ment-as-proprietor arguments. This Article discusses these matters broadly, and also
applies the analysis to various particular kinds of gun restrictions.
Introduction: The Grammar of Constitutional Rights Law . . . 1951
I .
Bruen Allows Restrictions Rooted in the Second
Amendment’s Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1954
II .
Bruen Rejects a Countervailing Government
Interest Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1955
III .
Bruen Leaves Room for Upholding Restrictions that
Only Modestly Burden the Right to Bear Arms . . . . . . 1956
I V .
Bruen Did Not Opine on the Government as
Proprietor, Employer, or Contractor . . . . . . . . . . . . . . . . 1962
V . Implications for Particular Gun Controls: What,
Who, Where, How, When . . . . . . . . . . . . . . . . . . . . . . . . . . . 1964
A . “What” Bans: Bans on Categories of Weapons or
Weapons-Related Items . . . . . . . . . . . . . . . . . . . . . . . . . . 1964
1 . Bans on Guns Without Serial Numbers, Guns
Without Enough Metal Parts, Etc. . . . . . . . . . . . . . . 1966
2 . Bans on “Assault Weapons” . . . . . . . . . . . . . . . . . . 1966
B . “Who” Bans: Bans on Possession by Certain Classes
of People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1969
1 . Felons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1970
* Copyright © 2023 by Eugene Volokh, Gary T . Schwartz Professor of Law, UCLA
School of Law (volokh@law .ucla .edu) . This Article updates portions of Eugene Volokh,
Implementing the Right to Keep and Bear Arms in Self-Defense: An Analytical Framework
and a Research Agenda, 56 UCLA L . Rev . 1443 (2009), in light of Bruen and other recent
developments .
2 . Subjects of Restraining Orders and “Red Flag”
Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1971
3 . The Mentally Ill . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1972
4 . Illegal Drug Users . . . . . . . . . . . . . . . . . . . . . . . . . . . 1973
C . “Where” Bans: Prohibition on Possession in Certain
Places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1973
D . “How” Restrictions: Rules on How Guns Are To Be
Stored or Carried . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1973
E . “When” Restrictions: Rules on When People Are
Temporarily Barred from Possessing Guns . . . . . . . . . . 1974
1 . Restrictions on Possession While Intoxicated .... 1974
2 . Waiting Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1974
F . Taxes, Fees, and Other Expenses . . . . . . . . . . . . . . . . . . . 1975
G . Restrictions on Sellers ........................... 1976
H . Restrictions on Training .......................... 1976
I . “Who Knows” Restrictions: Nondiscretionary
Licensing, Background Checks, Registration, and
Ballistics Tracking Databases ..................... 1977
J . Restrictions on Gun Use . . . . . . . . . . . . . . . . . . . . . . . . . 1977
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1978
Introduction:
The Grammar of Constitutional Rights Law
When does a restriction on guns violate the right to keep and bear
arms? When does a restriction on speech violate the freedom of speech?
When does a restriction on religious practice violate a presumptive right
to religious exemptions?
Generally speaking, there are at least four kinds of ways that the
government can justify some such restrictions; these categories offer a
sort of grammar of constitutional rights law:
• Scope: A restriction might be consistent with the constitutional
text, the original meaning of the text, the traditional understanding of
what the text covers, or the background legal principles establishing
who is entitled to various rights .
• Modest Burden: A restriction might be justified because it only
slightly interferes with rightholders’ ability to enjoy the benefits of
the right, and thus might be a burden that doesn’t unconstitutionally
“infringe[]”
1
the right .
1
U . S . Const . amend . II .
1952 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
• Countervailing Government Interests: A restriction might serve
sufficiently important government interests, which justify even a sub-
stantial burden . When such interests are considered, that is usually done
through intermediate scrutiny or strict scrutiny .
2
• Government as Proprietor: The government might have special
power stemming from its authority as proprietor, employer, or subsi-
dizer to control behavior on its property or by recipients of its property .
3
Consider, for instance, free speech law (which the Court has some-
times used as an analogy in its right-to-bear-arms cases) . For content-
based speech restrictions, the Court has generally held the following:
• Scope: The scope of the freedom of speech excludes some tra-
ditionally recognized exceptions, such as for incitement, libel, fighting
words, and the like .
4
• Modest Burden: Even modest content-based restrictions on
speech (e .g ., relatively low content-based taxes,
5
or content-based re-
strictions that restrict only the time, place, and manner of speech
6
) are
presumptively unconstitutional .
• Countervailing Government Interests: Such content-based re-
strictions can be upheld but only if they are necessary to serve a com-
pelling government interest .
• Government as Proprietor: There are generally more government-
friendly rules for restrictions imposed on government employees,
7
K-12
students, public university students, people visiting the government’s
non-public-forum property,
8
and more .
But the rules differ for other kinds of speech restrictions . For
viewpoint-based speech restrictions, for instance, the Court has sug-
gested that no “countervailing government interest” justifications are
available, so such restrictions are categorically unconstitutional
9
(unless
2
See, e.g., Williams-Yulee v . Florida Bar, 575 U .S . 433, 443 (20 15) (strict scrutiny of
content-based speech restrictions); Ward v . Rock Against Racism, 491 U .S . 781, 799 (1989)
(intermediate scrutiny of content-neutral speech restrictions) .
3
See, e.g., Christian Legal Soc’y v . Martinez, 561 U .S . 661, 662 (2010) (government as
proprietor or subsidizer restricting speech that uses its property); United States v . Nat’l
Treas . Emp . Union, 513 U .S . 454 (1995) (government as employer restricting its employees’
speech) .
4
See, e.g., United States v . Stevens, 559 U .S . 460, 468–69 (2010) (listing First Amendment
exceptions) .
5
See, e.g., Ark . Writers’ Project, Inc . v . Ragland, 481 U .S . 221, 230 (1987) .
6
See, e.g., Carey v . Brown, 447 U .S . 455, 460–62 (1980) (treating a content-based
restriction as presumptively unconstitutional, though it was limited to residential picketing) .
7
See, e.g., Garcetti v . Ceballos, 547 U .S . 410, 417 (2006) .
8
Minn . Voters All . v . Mansky, 138 S . Ct . 1876, 1885 (20 18) .
9
Pleasant Grove City v . Summum, 555 U .S . 460, 469 (2009) (stating that, in a traditional
public forum, “any restriction based on the content of the speech must satisfy strict scrutiny,
. . . and restrictions based on viewpoint are prohibited”); Minn. Voters All., 138 S . Ct . at 1885
they fall outside the scope of free speech, or perhaps are justified by the
government’s role as employer
10
or K-12 educator
11
) .
For content-neutral speech restrictions, there is a “burden” inquiry:
If the content-neutral restriction “leave[s] open ample alternative
channels for communication of information”
12
(i .e ., doesn’t burden
speech too much), then the restriction can be upheld on a countervailing-
interest rationale under intermediate scrutiny . But if the content-
neutral restriction doesn’t leave open such ample alternative channels
(i .e ., gravely burdens speech), for instance when it “foreclose[s] an
entire medium of communication,” then the restriction would have to
be evaluated under strict scrutiny .
13
The important point here is that the different kinds of justifications
are separate . A court may reject any possibility of a right being over-
come by countervailing government interests, for instance, but conclude
that a particular regulation of the right is valid because it imposes only
a minor burden . Conversely, concluding that even modest burdens are
sufficient to trigger the right doesn’t tell us whether such burdens can
be justified by countervailing government interests, or by the govern-
ment’s special proprietary powers .
In this Article, I try to apply this framework to the Second
Amendment right to keep and bear arms in self-defense after New
York State Rifle & Pistol Association v. Bruen .
14
District of Columbia
v. Heller,
15
McDonald v. City of Chicago,
16
and Bruen all focus on the
right to keep and bear arms for self-defense, so this Article will as well,
(“In a traditional public forum . . . restrictions based on content must satisfy strict scrutiny,
and those based on viewpoint are prohibited .”) .
10
Compare, e.g., Sczygelski v . U .S . Customs & Border Prot . Agency, 419 F . App’x 680,
680–81 (8th Cir . 2011) (upholding firing of law enforcement officer for expressing racist views,
and citing other cases that so allowed), with Amalgamated Transit Union Loc . 85 v . Port Auth .
of Allegheny Cnty ., 39 F .4th 95 (3d Cir . 2022) (stating that “viewpoint-based government
regulations on speech are nearly always presumptively suspect,” and this is generally “no less
true” for government-as-employer restrictions) .
11
Compare, e.g., Dariano v . Morgan Hill Unified Sch . Dist ., 767 F .3d 764, 780 (9th Cir . 20 14)
(“Schools may, under Tinker, ban certain images, for example images of the Confederate flag
on clothing, even though such bans might constitute viewpoint discrimination .”), with Nurre
v . Whitehead, 580 F .3d 1087, 1095 n .6 (9th Cir . 2009) (“We note that this is not a case involving
viewpoint discrimination, which would be impermissible no matter the forum .”) .
12
Ward v . Rock Against Racism, 491 U .S . 781, 791 (1989) (quoting Clark v . Cmty . for
Creative Non-Violence, 468 U .S . 288, 293 (1984)) .
13
E.g., State v . DeAngelo, 963 A .2d 1200, 1207 (N .J . 2009) (“Ordinances that foreclose
an entire medium of expression often are the subject of concern as such an ordinance will be
upheld only if narrowly drawn to accomplish a compelling governmental interest .”) (cleaned
up); Doe v . Kentucky ex rel. Tilley, 283 F . Supp . 3d 608, 612 n .4 (E .D . Ky . 20 17) (likewise) .
14
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111 (2022) .
15
District of Columbia v . Heller, 554 U .S . 570 (2008) .
16
McDonald v . City of Chicago, 561 U .S . 742 (2010) .
1954 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
leaving other possible purposes, such as “hunting and recreation[]” or
deterring government tyranny,
17
to others . I discuss how regulations that
are justified by the Amendment’s scope (Part I) or that impose only
minor burdens on the exercise of the right to bear arms (Part III) generally
remain constitutional, though regulations that impose serious burdens
can no longer be justified by a strong countervailing government
interest (Part II) . Whether the government has special power to impose
additional regulations as proprietor or employer (Part IV) remains
uncertain . Finally, Part V applies this framework to some particular
kinds of firearm regulations .
I
Bru e n Allows Restrictions Rooted in the
Second Amendment’s Scope
Bruen expressly focused on the “scope” inquiry, stating that arms re-
strictions would be constitutional if justified by the Second Amendment’s
text and history .
18
Restrictions on gun ownership by people who aren’t
seen as “law-abiding” and “responsible” are one example .
19
Restrictions
on carrying guns in “sensitive places”
20
are another, as are restrictions
on possessing “dangerous and unusual” weapons .
21
Restrictions on con-
cealed carry that allow open carry as an alternative are yet another,
22
though in current practice states that want to regulate gun carrying would
likely also prefer that people carry concealed rather than openly .
23
In this respect, Bruen shaped Second Amendment law in the image
of the modern law of the Confrontation Clause, the Criminal Jury Trial
17
For provisions expressly mentioning hunting and recreation, see Del . Const . art . I,
§ 20; Neb . Const . art . I, § 1; Nev . Const . art . I, § 11(1); N .M . Const . art . II, § 6; N . D . Const . art .
I, § 1; W . Va . Const . art . III, § 22; Wi s . Const . art . I, § 25 .
18
See Bruen, 142 S . Ct . at 2126 (“[T]he government may justify its regulation by
‘establish[ing] that the challenged law regulates activity falling outside the scope of the right
as originally understood .’” (citation omitted)) .
19
Id. at 2131 .
20
Id. at 2133 .
21
Id. at 2128 .
22
Id. at 2150 .
23
Many people are made uncomfortable, rightly or not, by visibly present deadly weapons,
even if in the abstract they know that during a busy day they will likely pass many people
who are carrying concealed weapons . See, e.g., State v . Ross, 573 S . W .3d 817, 841 & n .4 (Tex .
Crim . App . 20 19) (Slaughter, J ., dissenting); Norman v . State, 215 So . 3d 18, 45–46 (Fla . 20 17)
(Canady, J ., dissenting) . “‘In many places, carrying openly is likely to frighten many people,
and to lead to social ostracism as well as confrontations with the police .’” Peruta v . County
of San Diego, 824 F .3d 919, 955 (9th Cir . 20 16) (Callahan, J ., dissenting) (quoting Volokh,
supra note *) . Legislation naturally tends to reflect such sentiments, and the few courts that
have recently considered the issue have upheld open carry bans, so long as concealed carry
is allowed . See, e.g., Norman, 215 So . 3d at 37–38 .
Clause, the Seventh Amendment, the Double Jeopardy Clause, and the
like: a highly historical inquiry into late colonial and early American
legal practices, based on the theory that these were the practices that
the Framers constitutionalized in enacting the Bill of Rights .
24
And in
this respect, it has crafted a different path for the Second Amendment
from the much less history-focused modern Free Speech Clause law and
Equal Protection Clause law .
The key difference between Second Amendment law and the Con-
frontation Clause and similar provisions, of course, is that there is so
little recent precedent about the Second Amendment—just District
of Columbia v. Heller,
25
McDonald v. City of Chicago,
26
Caetano v.
Massachusetts,
27
and now Bruen . Because of this, the Second Amendment
scope inquiry, at least for now, is much more focused on the early his-
tory called for by inquiries into original meaning and tradition, and less
on whatever precedents might have said about the right’s scope .
28
II
Bru e n Rejects a Countervailing Government Interest
Inquiry
Bruen expressly rejected a countervailing-government-interest
inquiry, and thus disallowed “any means-end test such as strict or
intermediate scrutiny” that could justify restrictions .
29
This approach
differs from how the Court has dealt with some rights, such as the rights
to be free from content-neutral restrictions and from many kinds of
content-based restrictions .
30
But the approach is similar to how the
Court has dealt with some other rights .
31
Consider, for instance, the Jury Trial Clauses . There are limits on
the right to jury trial in criminal cases, based on history (such as the
exception for petty offenses) .
32
Likewise, there is a limit on the right to
24
See, e.g., Crawford v . Washington, 541 U .S . 36 (2004); Apprendi v . New Jersey, 530 U .S .
466 (2000); Monterey v . Del Monte Dunes at Monterey, Ltd ., 526 U .S . 687 (1999); Gamble v .
United States, 139 S . Ct . 1960 (20 19) .
25
554 U .S . 570 (2008) .
26
561 U .S . 742 (2010) .
27
577 U .S . 411 (20 16) .
28
See Randy E . Barnett & Lawrence B . Solum, Originalism After Dobbs, Bruen, and
Kennedy: The Role of History and Tradition (Jan . 26, 2023) (unpublished manuscript) (on
file with the Northwestern University Law Review), papers .ssrn .com/sol3/papers .
cfm?abstract_id=4338811 [https://perma .cc/4LHC-NQ55] .
29
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2129 (2022) .
30
See supra notes 4–8 and accompanying text .
31
For an early reading of Heller along these lines, which anticipated Bruen’s analysis, see
State v . Sieyes, 225 P .3d 995, 1005 (Wash . 2010) .
32
See District of Columbia v . Clawans, 300 U .S . 617, 624 (1937) .
1956 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
jury trial in civil cases, based on the text: Lawsuits seeking only equita-
ble relief aren’t “[s]uits at common law” to which the right attaches .
33
But there’s generally no possibility of a strict scrutiny justification
for limiting jury trials: Even if the government, for instance, concludes
that in some places juries wouldn’t fairly decide hate crime cases or
drug cases, it can’t just deny jury trials on the grounds that the denial is
narrowly tailored to serve a compelling government interest . It must in-
stead honor the jury trial right, on the theory that the Sixth and Seventh
Amendments embody the results of the Framers’ balancing of the in-
terests, and legislatures and courts can’t now rebalance those interests .
Indeed, the Civil Rights Act of 1964 initially authorized only equi-
table remedies and denied plaintiffs compensatory and punitive dam-
ages, likely because Congress thought that many juries wouldn’t fairly
decide discrimination cases;
34
but Congress couldn’t have avoided this
by just authorizing damages awards without juries . Likewise, some
other rights, such as the privilege against self-incrimination, cannot be
restricted on compelling government interest grounds .
35
The same now
applies to the right to keep and bear arms .
III
Bru e n Leaves Room for Upholding Restrictions that Only
Modestly Burden the Right to Bear Arms
Bruen did not foreground the burden threshold for right-to-bear-
arms violations the way it stressed the scope inquiry . But the Court did
suggest that some arms restrictions would indeed be constitutional on
the grounds that they impose only modest burdens . This is particularly
clear in footnote nine of the majority’s opinion, which upheld licensing
requirements for carrying guns:
Because [forty-three states’ “shall-issue”] licensing regimes do not
require applicants to show an atypical need for armed self-defense,
they do not necessarily prevent “law-abiding, responsible citizens”
from exercising their Second Amendment right to public carry . Rather,
it appears that these shall-issue regimes, which often require applicants
to undergo a background check or pass a firearms safety course, are
designed to ensure only that those bearing arms in the jurisdiction are,
in fact, “law-abiding, responsible citizens .” And they likewise appear
to contain only “narrow, objective, and definite standards” guiding
licensing officials . . . . That said, because any permitting scheme can be
33
See Granfinanciera, S .A . v . Nordberg, 492 U .S . 33, 41–42 (1989) .
34
George Rutherglen, Private Rights and Private Actions: The Legacy of Civil Rights in
the Enforcement of Title VII, 95 B . U . L . Rev . 733, 738 (20 15) .
35
See, e.g., Elliott v . State, 824 S .E .2d 265, 295 (Ga . 20 19) .
put toward abusive ends, we do not rule out constitutional challenges
to shall-issue regimes where, for example, lengthy wait times in
processing license applications or exorbitant fees deny ordinary
citizens their right to public carry .
36
Of course, licensing requirements do interfere in some measure
with the right to carry guns: They impose at least some “wait times” and
some “fees .” Nor did the Court suggest that longstanding tradition or
history supported such licensing requirements .
Rather, the Court apparently reasoned that a modest burden, which
does not “prevent” the exercise of the right, would be constitutional, at
least so long as it serves the traditionally recognized government inter-
est in “ensur[ing] . . . that those bearing arms . . . are . . . ‘law-abiding,
responsible citizens .’” Modest, “[non-]exorbitant fees” would be consti-
tutional, as would “[non-]lengthy wait times .”
37
And this inquiry into the magnitude of the burden is reflected in
the Court’s more general discussion . The Court stressed that restrictions
on public carrying significantly burden the right to keep and bear arms
for self-defense: “After all, the Second Amendment guarantees an
‘individual right to possess and carry weapons in case of confrontation,’
and confrontation can surely take place outside the home .”
38
Self-defense
has to take place where the “self” happens to be;
39
because of this,
restrictions on carrying outside the home concretely burden the right,
and that concrete burden (coupled with the right’s historical scope) helps
explain why the right to bear arms extends outside the home .
Yet the Court distinguished some historically recognized gun
controls on the grounds that “[n]one of these restrictions imposed a
substantial burden on public carry analogous to the burden created by
New York’s restrictive licensing regime .”
40
“[T]he burden these surety
statutes may have had on the right to public carry was likely too insig-
nificant to shed light on New York’s proper-cause standard .”
41
Indeed,
the burden inquiry might be part of the historical scope of Second
Amendment protection: American right-to-bear-arms law has reasoned that
36
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2138 n .9 (2022) (citations
omitted) .
37
Id. (citation omitted) .
38
Id. at 2135 (quoting District of Columbia v . Heller, 554 U .S . 570, 592 (2008)) .
39
Sixty-five percent of all rapes and other sexual assaults, for instance, happen outside
the victim’s home, and half outside anyone’s home . The percentages are even greater
for robberies and assaults . U .S . Dep’t of Just . Bureau of Just . Stats ., National Crime
Victimization Survey, 2008 Statistical Tables tbl . 61, bjs .ojp .gov/content/pub/pdf/
cvus08 .pdf [https://perma .cc/6VEL-ELN7] .
40
Bruen, 142 S . Ct . at 2145 .
41
Id. at 2149 .
1958 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
not all regulations amount to unconstitutional prohibitions for over 150
years,
42
with only a few departures .
43
In considering the magnitude of the burden, Bruen builds on the
analysis in Heller, where the Court struck down the handgun ban in
part because of how burdensome it was: “Nothing about [Framing-
era] fire-safety laws”—the laws that the dissent points to as evidence
that the right to bear arms should be read as allowing handgun bans—
“undermines our analysis; they do not remotely burden the right of self-
defense as much as an absolute ban on handguns . Nor, correspondingly,
does our analysis suggest the invalidity of laws regulating the storage of
firearms to prevent accidents .”
44
Likewise, in distinguishing the handgun
ban from colonial laws that imposed minor fines for unauthorized dis-
charge of weapons, the Heller Court pointed out that the colonial laws
“provide no support for the severe restriction in the present case .”
45
Earlier in the Heller opinion, the Court similarly justified strik-
ing down the handgun ban on the grounds that the ban was a “severe
restriction .”
46
In the process, the Court favorably quoted an old case
distinguishing permissible “regulati[on]” from impermissible “destruc-
tion of the right” and from impermissible laws that make guns “wholly
useless for the purpose of defence .”
47
And the Court’s explanation of
why the handgun ban is unconstitutional even if long guns are allowed
is likewise consistent with an inquiry into how substantially a law bur-
dens the right to bear arms:
It is no answer to say . . . that it is permissible to ban the possession of
handguns so long as the possession of other firearms (i.e., long guns) is
allowed . It is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential self-
defense weapon . There are many reasons that a citizen may prefer a
handgun for home defense: It is easier to store in a location that is
42
See, e.g., Owen v . State, 31 Ala . 387, 388 (1858) (“That section was not designed to
destroy the right, guarantied by the constitution to every citizen, ‘to bear arms in defense of
himself and the State’; nor to require them to be so borne, as to render them useless for the
purpose of defense . It is a mere regulation of the manner in which certain weapons are to
be borne . . . .”); Aymette v . State, 21 Tenn . 154, 159 (1840) (“[A]lthough this right must be
inviolably preserved, yet it does not follow that the Legislature is prohibited altogether from
passing laws regulating the manner in which these arms may be employed .”) .
43
For one such departure, see Bliss v . Commonwealth, 2 Litt . 90, 91–92 ( Ky . 1822), which
struck down a ban on concealed carry even though open carry was allowed, reasoning that
“whatever restrains the full and complete exercise of [the right to bear arms], though not an
entire destruction of it, is forbidden by the explicit language of the constitution .”
44
District of Columbia v . Heller, 554 U .S . 570, 632 (2008) .
45
Id.
46
Id. at 629 .
47
Id.
readily accessible in an emergency; it cannot easily be redirected or
wrestled away by an attacker; it is easier to use for those without the
upper-body strength to lift and aim a long gun; it can be pointed at a
burglar with one hand while the other hand dials the police . What-
ever the reason, handguns are the most popular weapon chosen by
Americans for self-defense in the home, and a complete prohibition
of their use is invalid .
48
The Court is pointing out that handguns are popular for a reason:
They are often the optimal self-defense tool, so bans on handguns make
self-defense materially more difficult . The handgun ban, then, materially
burdens the right to bear arms in self-defense . Such burden thresholds
are common for other constitutional rights, such as the right to marry,
49
the right to expressive association,
50
the right to abortion (back when
that right was recognized),
51
the right to religious exemptions,
52
the right
to strong protection against even content-neutral speech restrictions,
53
and more .
In Bruen, the Court also said that the Second Amendment inquiry
must focus on (1) “whether modern and historical regulations impose
48
Id. (citations omitted) .
49
See, e.g., Zablocki v . Redhail, 434 U .S . 374, 388 (1978) (holding that heightened scrutiny
must be applied “[w]hen a statutory classification significantly interferes with the exercise of
a fundamental right”) .
50
See, e.g., Boy Scouts of Am . v . Dale, 530 U .S . 640, 683 (2000) (“The relevant question is
whether the mere inclusion of the person at issue would ‘impose any serious burden,’ ‘affect
in any significant way,’ or be ‘a substantial restraint upon’ the organization’s ‘shared goals,’
‘basic goals,’ or ‘collective effort to foster beliefs .’” (citations omitted)) .
51
See, e.g., Planned Parenthood of Se . Pa . v . Casey, 505 U .S . 833, 877 (1992) (O’Connor,
Kennedy & Souter, JJ ., plurality opinion) (holding that the right to abortion was violated
when a law imposes “an undue burden . . . shorthand for the conclusion [it] has the purpose
or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a
nonviable fetus”) .
52
See, e.g., Jimmy Swaggart Ministries v . Bd . of Equalization of Cal ., 493 U .S . 378, 384–
85 (1990) (“[T]he free exercise inquiry asks whether government has placed a substantial
burden on the observation of a central religious belief or practice and, if so, whether a
compelling governmental interest justifies the burden .”); Fulton v . City of Philadelphia, 141
S . Ct . 1868, 1924 (2021) (Gorsuch, J ., concurring in the judgment); Shepherd Montessori Ctr .
Milan v . Ann Arbor Charter Twp ., 761 N . W .2d 230, 232 (Mich . Ct . App . 2008) .
53
Content-neutral restrictions on speech are generally allowed, subject only to
intermediate scrutiny, when they regulate only the “time, place, or manner” of speech and
leave open “ample alternative channels” for speech . Ward v . Rock Against Racism, 491 U .S .
781, 791 (1989) . The availability of ample alternative channels makes the restrictions into
lesser burdens than a broader ban would be . See generally Alan Brownstein, How Rights
Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings
L .J . 867 (1994) . Many of the cases recognizing First Amendment exceptions also reason
partly that restrictions on certain speech only slightly burden the values that the Free Speech
Clause protects . See, e.g., Gertz v . Robert Welch, Inc ., 418 U .S . 323, 340 (1974) (libel); Paris
Adult Theatre I v . Slaton, 413 U .S . 49 (1973) (obscenity); New York v . Ferber, 458 U .S . 747
(1982) (child pornography) .
1960 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
a comparable [and comparably justified] burden on the right of armed
self-defense,” and on (2) “how and why the regulations burden a law-
abiding citizen’s right to armed self-defense .”
54
This too suggests that
the magnitude of the burden matters .
But not just the magnitude of the burden matters, it appears—the
reason for the burden also matters, which may end up reincorporat-
ing some sort of heightened scrutiny means-ends analysis into Second
Amendment law, once the burden is found to be modest enough . Foot-
note nine, after all, stressed that the shall-issue laws burden the right for
good reason: to support enforcement of constitutionally valid restric-
tions on gun ownership .
55
The Court had earlier concluded, based on its understanding of
the Second Amendment’s historical scope, that the right was limited
to “law-abiding, responsible citizens .”
56
The “background check[s]”
required by “these shall-issue regimes” support that limitation by mak-
ing sure that the owners are indeed law-abiding and responsible in that
sense .
57
And the “firearms safety course[s]” promote the limitation by
training licensees to be “responsible” in the sense of being able to use
concealed weapons safely, should the need arise; indeed, such courses
also often teach people how to be “law-abiding,”
58
for instance, by dis-
cussing the often complicated rules related to when lethal self-defense
is permitted .
59
These restrictions thus impose burdens that are both
modest and justified by the scope of the right secured by the Second
Amendment .
By way of comparison, fees that are higher than needed to admin-
ister the permitting system may be unconstitutional either (1) because
they are “exorbitant” as an absolute matter or (2) because they are not
“designed to ensure only that those bearing arms in the jurisdiction
are, in fact, ‘law-abiding, responsible citizens,’”
60
but might instead be
designed simply to raise money or deter gun ownership .
61
Likewise,
they would not be “comparably justified” to fees that are tailored just to
the administration of the system .
62
54
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2133 (2022) .
55
Id. at 2138 n .9 .
56
District of Columbia v . Heller, 554 U .S . 570, 635 (2008) .
57
Bruen, 142 S . Ct . at 2162 (Kavanaugh, J ., concurring) .
58
Id. at 2138 n .9 (majority opinion) (quoting Heller, 554 U .S . at 635) .
59
See, e.g., N . C . Gen . Stat . Ann . § 14-415 .12(a)(4) (2022) (requiring such courses to
involve “instructions in the laws . . . governing the carrying of a concealed handgun and the
use of deadly force”) .
60
Bruen, 142 S . Ct . at 2138 n .9 (quoting Heller, 554 U .S . at 635) .
61
See infra Section V .F .
62
Bruen, 142 S . Ct . at 2133 .
Of course, people will disagree about which burdens should nor-
matively count as substantial—just as they have disagreed about which
burdens on abortion rights count as substantial,
63
or about how ample
the alternative channels left open by content-neutral time, place, or
manner speech restrictions must be .
64
Indeed, some courts have tried
to minimize the burden imposed by very substantial restrictions: For
instance, the Fifth Circuit upheld a ban on 18-to-20-year-olds acquir-
ing guns from licensed dealers in part on the grounds that this was
“an age qualification with temporary effect . Any 18-to-20-year-old
subject to the ban will soon grow up and out of its reach .”
65
Yet what-
ever one might say of a waiting period of a few days, a waiting period
of nearly three years, even if literally “temporary,” is surely a serious
burden .
It may also be hard to empirically determine just how burdensome
a particular restriction might be . And of course restrictions that impose
small burdens, when viewed individually, could end up amounting to a
large burden .
66
The Court’s skepticism of even modest content-based
speech restrictions may stem from this concern .
67
But the Court none-
theless does consider the substantiality of a burden in many cases, by
focusing, for instance, on whether a content-neutral restriction “leaves
open ample alternative channels”
68
for communication; the same might
be feasible for gun controls, where courts can ask whether the restriction
leaves open ample alternative means for effective armed self-defense .
69
And more broadly, Bruen and its toleration of some regulations, such
as shall-issue licensing requirements, suggest that some inquiry into the
magnitude of a given burden is indeed part of the Second Amendment
test .
63
Compare, e.g., Planned Parenthood of Se . Pa . v . Casey, 505 U .S . 833, 886–87 (1992)
(O’Connor, Kennedy & Souter, JJ ., plurality opinion) (holding that a 24-hour waiting period
for abortions is not a substantial burden on the right to abortion), with id. at 937 (Blackmun,
J ., dissenting) .
64
Compare, e.g., Members of City Council v . Taxpayers for Vincent, 466 U .S . 789, 812 &
n .30 (1984) (holding that a ban on posting leaflets on city-owned utility poles left open ample
alternative channels, though the alternatives were likely considerably more expensive), with
id. at 819 (Brennan, J ., dissenting) .
65
Nat’l Rifle Ass’n of Am . v . Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700
F . 3d 185, 207 (5th Cir . 2012) .
66
See Volokh, supra note *, at 1460 .
67
See id .
68
E.g., Frisby v . Schultz, 487 U .S . 474, 482 (1988) (cleaned up) .
69
See Volokh, supra note *, at 1460 . Cf. Arnold v . City of Cleveland, 616 N .E .2d 163, 173
(Ohio 1993) (acknowledging that “the city . . . would have violated [the right to bear arms] if
it had banned all firearms,” and concluding that there is no reason to think “that by banning
certain firearms [so-called ‘assault weapons’] ‘there is no stopping point’ and legislative
bodies will have ‘the green light to completely ignore and abrogate an Ohioan’s right to bear
arms’”) .
1962 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
IV
Bru e n Did Not Opine on the Government as Proprietor,
Employer, or Contractor
Bruen dealt with a law that restricted gun carrying nearly every-
where in the state of New York .
70
Because the law wasn’t limited to
government property, the Court had no occasion to decide whether spe-
cial rules should apply to such property, or to the government imposing
rules on employees or contractors .
But the Court has long recognized that individual rights claims
may play out differently when government property is involved (set-
ting aside property traditionally open to the public, such as streets, side-
walks, and parks) . That doctrine is especially well-developed for the
freedom of speech, where there are special rules for nonpublic forum
property, as well as for government employees, contractors, and public-
school students .
71
Likewise, Fourth Amendment law gives the govern-
ment greater authority to search government employees’ offices and
the property that K-12 students bring to school .
72
When the Court recognized a right to abortion, it similarly con-
cluded that the right didn’t extend to government-owned hospitals or
even hospitals built on land leased from the government .
73
And when
the Court recognized a Free Exercise Clause right to religious exemp-
tions from generally applicable laws, it likewise treated government
property differently: Just as the Free Speech Clause doesn’t protect a
right to solicit a state fair, so the Free Exercise Clause did not protect a
right to do so for religious purposes .
74
This might offer an alternative justification for some of the “sensi-
tive places” restrictions on gun carrying mentioned in Bruen, since the
most often discussed “sensitive places” tend to be government prop-
erty, such as “legislative assemblies, polling places, . . . courthouses,” and
70
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2122–23 (2022) .
71
See Minn . Voters All . v . Mansky, 138 S . Ct . 1876, 1886 (20 18); Garcetti v . Ceballos, 547
U . S . 410, 421 (2006); Bd . of Comm’rs v . Umbehr, 518 U .S . 668, 680 (1996); Mahanoy Area Sch .
Dist . v . B .L ., 141 S . Ct . 2038, 2045 (2021) .
72
See O’Connor v . Ortega, 480 U .S . 709, 717 (1987); New Jersey v . T .L .O ., 469 U .S . 325, 339
(1985) .
73
Webster v . Reprod . Health Servs ., 492 U .S . 490, 512 (1989) .
74
See Heffron v . Int’l Soc’y for Krishna Consciousness, 452 U .S . 640, 652–53 (1981); see
also Kennedy v . Bremerton Sch . Dist ., 142 S . Ct . 2407, 2433 (2022) (Thomas, J ., concurring)
(noting that “the Court refrains from deciding whether or how public employees’ rights under
the Free Exercise Clause may or may not be different from those enjoyed by the general
public”); Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L .
Rev . 1465, 1495 n .85 (1999) (citing lower court cases that read the Free Exercise Clause as
providing less protection from neutral, generally applicable employment rules than would be
provided as to neutral, generally applicable laws) .
“schools .”
75
But the rationale would be less about the history and tradi-
tion of gun regulation and more about the broader history and tradition
of recognizing the government’s right to exercise some (though not all)
of the rights of ordinary property owners . And in at least some situa-
tions—for instance, when it comes to government employers’ restric-
tions on the conduct of their employees—the rationale may also stem
from a judgment that the government may often require one to surren-
der some part of one’s constitutional rights (though again not the en-
tirety of those rights) as a condition of getting a government paycheck .
76
At the same time, on one type of government property the interest
in having guns for self-defense may be especially strong: public hous-
ing . Though Bruen held that the right to keep and bear arms extends
beyond the home, that right certainly extends into the home, and the
case for it seems at least as strong for government-owned homes as
for privately owned homes . Indeed, the First and Fourth Amendments
likely apply to the inside of public housing, much the same way as they
apply to privately owned homes .
77
Any concern about bullets lethally
penetrating walls would be best satisfied by requirements that firearms
in public apartment buildings use ammunition that doesn’t substantially
risk this—the shot used in many shotguns, or special frangible ammuni-
tion in handguns .
78
Similarly, while the government likely has considerable power to
control what employees and contractors do while performing govern-
ment functions, that power might not be unlimited, especially when the
75
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2133 (2022) . Even privately
owned polling places are loaned out for a government function on election day, and are thus
treated as government property . See, e.g., Minn. Voters All., 138 S . Ct . at 1886 .
76
See, e.g., Waters v . Churchill, 511 U .S . 661, 675 (1994) (plurality opinion); Adderley v .
Florida, 385 U .S . 39, 47 (1966) .
77
See, e.g., Doe v . Wilmington Hous . Auth ., 88 A .3d 654 (Del . 20 14) (striking down ban
on gun possession in common areas of public housing, which a fortiori would invalidate
bans on gun possession in the resident’s own apartment); Pratt v . Chi . Hous . Auth ., 848 F .
Supp . 792 (N .D . Ill . 1994) (holding that the Fourth Amendment barred warrantless sweeps
through public housing projects); Resident Action Council v . Seattle Hous . Auth ., 174 P .3d
84 (Wash . 2008) (evaluating restriction on public housing residents’ posting materials on
the outside of their apartment doors the same way the U .S . Supreme Court had evaluated
restriction on private residents’ rights to post materials in their windows) . Resident Action
Council involved the outside of public housing units, but its reasoning would apply at least as
forcefully to speech inside such units . As to universities, compare Fla . Carry, Inc . v . Univ . of
Fla ., 180 So . 3d 137, 155 (Fla . Dist . Ct . App . 20 15) (upholding ban on possession on university
campuses under a “sensitive places” rationale), Wade v . Univ . of Mich ., No . 330555, 2023
WL 4670440, at *8–10 (Mich . Ct . App . July 20, 2023) (likewise), and DiGiacinto v . Rector
& Visitors of George Mason Univ ., 704 S .E .2d . 365, 370 (Va . 2011) (likewise), with La . Op .
Att’y Gen . No . 94-131 (1994) (suggesting that the Second Amendment protects university
students’ right to possess guns in dorm rooms) .
78
See Volokh, supra note *, at 1531 n .365 .
1964 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
employees and contractors are working away from government prop-
erty . Consider, for instance, restrictions on gun possession by foster par-
ents: On the one hand, they are paid by the government to take care of
children who are wards of the state; on the other, they do this in their
own homes, and in other places where defending themselves (and the
children) may be required . Thus, the Seventh Circuit remanded a case
involving restrictions on foster parents for consideration of both the
historical scope of the right to bear arms post-Bruen and “the interac-
tion of Bruen and the unconstitutional conditions doctrine, including
but not limited to the employment context .”
79
V
Implications for Particular Gun Controls:
What, Who, Where, How, When
The justification categories described above play out differently for
different restrictions; for the sake of brevity, I will only touch on a few—
I discuss others at greater length in Implementing the Right to Keep and
Bear Arms for Self-Defense: An Analytical Framework and a Research
Agenda
80
(the analysis of which largely remains applicable after Bruen) .
A. “What” Bans: Bans on Categories of Weapons or
Weapons-Related Items
Whether a ban on possessing a particular item is constitutional
is, after Bruen, generally a matter of scope . The Court has continued
to take the view that “dangerous and unusual weapons” that are not
“in common use” are outside the scope of the Second Amendment,
81
though it has not resolved some of the recurring questions that arise
about what counts as “common use,” e .g .:
• Does “typically possessed by law-abiding citizens for lawful
purposes”
82
require that the typical possessor of the weapon be a
law-abiding citizen with lawful purposes, or that possession of the
weapon be a typical (that is, common) practice? A rare weapon that’s
79
Miller v . Smith, No . 22-1482, 2023 WL 334788, at *1 (7th Cir . Jan . 20, 2023); see also
Lafferty v . Amundson, No . 2021AP1958, 2023 WL 3487819, at *1 (Wis . Ct . App . May 17, 2023)
(vacating and remanding, based on Bruen, a lower court’s rejection of two foster parents’
constitutional challenge to “firearm storage requirements” specifically placed on foster
parents) .
80
Volokh, supra note * .
81
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2128 (2022) (quoting District
of Columbia v . Heller, 554 U .S . 570, 627 (2008)) .
82
Heller, 554 U .S . at 625 .
overwhelmingly used for lawful purposes (e .g ., an expensive or antique
hunting rifle) would fit the first definition but not the second .
• Just who is the typical possessor of the weapon, given that one
can hardly do a survey of owners of a particular kind of weapon, asking
them whether they possess it for lawful purposes?
• How specifically should the weapon category be defined? Hand-
guns, shotguns, rifles, and knives, for instance, are each in common use,
but particular brands of each are less common, and some are uncom-
mon, simply because they come from small companies or are of unusual
caliber or design .
83
The Court has also recognized that the scope of Second Amendment
protection extends not just to firearms but to “all instruments that con-
stitute bearable arms, even those that were not in existence at the time
of the founding,” including stun guns .
84
The same principle would apply
to many edged weapons,
85
blunt weapons,
86
and even nunchaku .
87
And
body armor should also qualify, given Heller’s favorably citing Samuel
Johnson’s definition of “arms” as including both “[w]eapons of offence”
and “armour of defence .”
88
Bans on particular categories of weapons or items might also be
justified on the theory that they impose a low burden, if they leave
people ample and pretty much equally effective alternatives for self-
defense .
89
More on that below .
83
For more, see Volokh, supra note *, at 1479–80 .
84
Caetano v . Massachusetts, 577 U .S . 411, 411 (20 16) (quoting Heller, 554 U .S . at 582); see
also Ramirez v . Commonwealth, 94 N .E .3d 809, 809 (Mass . 20 18) (striking down state statute
barring possession or carrying of stun guns) .
85
Teter v . Lopez, No . 20-15948, 2023 WL 5008203, at *8 (9th Cir . Aug . 7, 2023); Zaitzeff v .
City of Seattle, 484 P .3d 470, 475–76 (Wash . 2021) . Zaitzeff ultimately upheld a restriction on
public carrying of edged weapons under intermediate scrutiny, partly because it only applied
outside the home, id. at 478, but that aspect of Zaitzeff appears to be no longer good law
given Bruen .
86
But see Fouts v . Bonta, 561 F . Supp . 3d 941, 945 n .7 (S .D . Cal . 2021) (concluding that
the Second Amendment “protects non-firing arms such as electronic stun guns, nunchakus,
and cavalry swords,” but holding that bans on billy clubs were sufficiently longstanding to
be constitutional), vacated and remanded, No . 21-56039, 2022 WL 4477732 (9th Cir . Sept . 22,
2022) (remanding for consideration in light of Bruen) .
87
Maloney v . Singas, 351 F . Supp . 3d 222, 234 (E .D .N .Y . 20 18) .
88
Heller, 554 U .S . at 581 . Contra United States v . Davis, 906 F . Supp . 2d 545, 557 n .6 (S .D .
W . Va . 2012) (holding that, despite the definitions cited in Heller, “the assertion that [the
Second Amendment] right extends to body armor is, at best, a novel reach and, at worst,
a potential diminution of the cherished right itself”); Bell v . United States, No . CIV .A . 13-
5533, 2013 WL 5763219, at *4 (E .D . Pa . Oct . 24, 2013) (“It is not clear whether body armor
constitutes ‘arms’ as used in the Second Amendment .”), aff ’d, 574 F . App’x 59 (3d Cir . 20 14) .
89
Several cases, for instance, have upheld bans on certain kinds of knives by noting that
the bans covered only narrow categories of knives . See People v . Williams, 106 N .Y .S .3d 738,
740 (Columbia Cnty . Ct . 20 19) (“metal knuckle knives”); People v . Taylor, 99 N .Y .S .3d 596,
600 (N .Y . Crim . Ct . 20 19) (“gravity knives”); Teter v . Connors, 460 F . Supp . 3d 989, 1003–04
1966 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
1. Bans on Guns Without Serial Numbers, Guns Without Enough
Metal Parts, Etc.
Such restrictions appear to be likely constitutional because they
don’t materially burden the right to keep and bear arms in self-defense .
As with the shall-issue licensing rules that Bruen said are constitutional,
these restrictions “do not necessarily prevent ‘law-abiding, responsible
citizens’ from exercising their Second Amendment right[s]”
90
and are
“designed to ensure only that those bearing arms in the jurisdiction are,
in fact, ‘law-abiding, responsible citizens,’”
91
because they make illegal
uses of the guns easier to identify .
92
To be sure, the rules apply to otherwise law-abiding people as well
as others . Some people might want to possess such guns for privacy
reasons, or because they enjoy manufacturing their own guns in par-
ticular ways . But of course, shall-issue licensing requirements burden
law-abiding people as well . It is enough, under Bruen, that regulations
impose a light burden and are designed to prevent non-law-abiding or
irresponsible use .
93
2. Bans on “Assault Weapons”
So-called “assault weapons” are not materially more dangerous
than other semiautomatic firearms:
The AR-15’s rate of fire is virtually identical to non-banned semiauto-
matic handguns, rifles, and shotguns . Its accuracy is better than some
firearms but worse than others . Like any rifle, its bullets typically cause
more serious wounds than handguns, but not as serious wounds as
larger-caliber hunting and target rifles . And while the AR-15 has fea-
tures that make it well-suited for home defense, those features do not
necessarily make it far more deadly than other firearms in the hands
of mass shooters . To be sure, “assault weapons” like the AR-15 have
been used in some high-casualty mass public shootings, but the data
does not tell us whether the casualty rate in those shootings is due to
(D . Haw . 2020) (“butterfly knives”) . One other case also upheld a ban on a narrow category
of knives on scope grounds . Commonwealth v . Pineiro, No . WOCR2016474, 20 19 WL
4017038, at *2 (Mass . Super . Ct . July 31, 20 19) (concluding that switchblades are “dangerous
and unusual” and therefore unprotected) .
90
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2138 n .9 (2022) (citation
omitted) .
91
Id. (citation omitted) .
92
But see Rigby v . Jennings, No . 21-1523, 2022 WL 4448220 (D . Del . Sept . 23, 2022) (striking
down such a ban on scope grounds, but without discussing whether the ban substantially
burdened the right to keep and bear arms in self-defense) .
93
Bruen, 142 S . Ct . at 2138 n .9 .
weapon type or to other factors such as shooter intent or skill, the du-
ration and location of the shooting, or victim characteristics, location,
or posture .
94
Definitions of assault weapons reflect this functional similarity to
other semiautomatic weapons: They often focus on features that have
little relation to dangerousness, such as folding stocks, pistol grips,
bayonet mounts, flash suppressors, or (for assault handguns but not
assault rifles) magazines that attach outside the pistol grip or barrel
shrouds that can be used as handholds .
95
And such weapons are also
not unusual, and indeed are in common use: A recent study reports
that “30 .2% of gun owners, about 24 .6 million people, have owned an
AR-15 or similarly styled rifle, and up to 44 million such rifles have
been owned .”
96
They thus do not seem to be categorically outside the
scope of the Second Amendment’s protection . (“Assault weapons”
should not be confused with fully automatic weapons, which are heav-
ily regulated, and indeed nearly banned, by long-existing restrictions,
97
and are generally not included within the definitions of “assault
weapons .”
98
)
The analysis of assault weapons bans should instead focus on the
burden inquiry . On one hand, the availability of comparably lethal and
effective substitutes for assault weapons—the very reason why assault
94
See E . Gregory Wallace, “Assault Weapon” Lethality, 88 Tenn . L . Rev . 1, 3, 68 (2020)
(focusing on the AR-15, “the main target of ‘assault weapon’ bans”); see also, e.g., id. at 13–14,
25, 28, 34, 39, 44–45, 53 (explaining why the AR-15 is not materially more deadly than many
other rifles that are not labeled “assault weapons”); Gary Kleck, Targeting Guns: Firearms
and Their Control 121–24 (1997) . Even Carl Bogus, one of the leading supporters of broad
gun control (including a near-total ban on handgun possession in large cities) and a former
member of the Brady Campaign board, agrees that the focus on these features is “largely
cosmetic .” Carl T . Bogus, Gun Control and America’s Cities: Public Policy and Politics, 1
Alb . Gov’t L . Rev . 440, 463, 468 n .189, 469 (2008) . Likewise, Charles Krauthammer, a
proponent of total handgun bans, labeled the assault weapons ban “phony gun control,” and
said that “[t]he claim of the advocates that banning these 19 types of ‘assault weapons’ will
reduce the crime rate is laughable . . . . Dozens of other weapons, the functional equivalent
of these ‘assault weapons,’ were left off the list and are perfect substitutes for anyone bent
on mayhem .” Charles Krauthammer, Disarm the Citizenry. But Not Yet., Wash . Post (Apr .
5, 1996), www .washingtonpost .com/archive/opinions/1996/04/05/disarm-the-citizenry-
but-not-yet/8efbb5da-fd5e-48c9-8a83-0fb41c728338 [https://perma .cc/6MUN-797D] .
95
Wallace, supra note 94, at 13–14, explains why those features have little relation to a
weapon’s dangerousness .
96
William English, 2021 National Firearms Survey: Updated Analysis Including Types
of Firearms Owned 20 (Geo . McDonough Sch . of Bus . Rsch . Paper No . 4109494) (May
13, 2022), papers .ssrn .com/sol3/papers .cfm?abstract_id=4109494 [https://perma .cc/
VVE4-68FF] .
97
See Volokh, supra note *, at 1484 n .166 .
98
See, e.g., Cal . Penal Code § 30510 (“‘[A]ssault weapon’ means the following designated
semiautomatic firearms . . . .”) .
1968 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
weapons bans are unlikely to reduce killings—makes it hard to see how
assault weapons bans would materially interfere with self-defense . The
reasons the Court gave for why handgun bans are impermissible—that
handguns are “easier to store in a location that is readily accessible in
an emergency,” “cannot easily be redirected or wrestled away by an at-
tacker,” “easier to use for those without the upper-body strength to lift
and aim a long gun,” and “can be pointed at a burglar with one hand
while the other hand dials the police”
99
—do not apply to assault weap-
ons bans: Assault weapons are no more useful for self-defense than are
many other handguns and rifles that aren’t prohibited by assault weap-
ons bans . In this respect, such bans likewise “do not necessarily pre-
vent ‘law-abiding, responsible citizens’ from exercising their Second
Amendment right[s] .”
100
Indeed, such bans likely impose considerably smaller burdens on
the right to be armed for defensive purposes than do shall-issue require-
ments . Faced with a ban on “assault weapons,” I can instead immediately
buy a wide range of guns that are comparably effective for self-defense,
as easily available, and no more expensive (though I would indeed be
denied the ability to buy the gun of my choosing, which I might find
particularly convenient or enjoyable) . Faced with a shall-issue licensing
scheme, I will often have to pay money for training and licensing, I will
often have to take many hours of training classes, and in any event I will
face some delay .
Some argue that any ban on a class of commonly owned arms is
per se unconstitutional: “A ban on a class of arms is not an ‘incidental’
regulation . It is equivalent to a ban on a category of speech .”
101
But this
supposed equivalence is, I think, illusory: Bans on categories of speech
are forbidden because speakers (and listeners) get sharply different
value from different kinds of speech; being able to talk about dogs is no
substitute for being able to talk about gods . Likewise, a right to marry
must be a right to marry the person you want, not a right to marry
someone—people aren’t fungible .
Yet it’s not clear that the right to buy contraceptives (still recog-
nized by the Court’s precedents) must necessarily include the right to
buy the very kind of contraceptive you most like—for aesthetic rea-
sons or even for comfort reasons—if other, virtually identically func-
tioning contraceptives are available . (I appreciate that a condom is
quite different from the birth control pill, which is in turn different
from an IUD; I’m speaking here about the difference between, say,
99
District of Columbia v . Heller, 554 U .S . 570, 629 (2008) .
100
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2138 n .9 (2022) .
101
Heller v . District of Columbia (Heller II), 670 F .3d 1244, 1285 (D .C . Cir . 2011) .
brands of condoms that are essentially fungible in their operation and
effectiveness .)
Likewise, say a state constitution secures a right to emigrate, as
does the Vermont Constitution and as did the Pennsylvania Constitution
of 1776 .
102
Would a law that bans travel to Canada by train and in-
stead requires that it be by bus violate that right? I doubt that it would,
because the point of a right to emigrate is to let you leave, and various
mechanisms for leaving seem to be largely fungible ways of exercising
the right (even if one loves trains and hates buses) .
The question then is to what extent constitutional law should view
slightly different kinds of guns—for instance, two very similar rifles, one
an “assault rifle” and one not—as fungible tools for accomplishing a
goal, the way many of us view condoms or tools of emigration, or as im-
portantly different from each other, the way we generally view speech
or spouses . If the guns are fungible, then restricting one kind while leav-
ing people free to have other, functionally nearly equivalent guns would
not be seen as a burden that rises to the level of “infring[ing]” the “right
of the people to keep and bear [a]rms .”
103
But if one kind of weapon is
not fungible with others (as the Court in Heller found handguns not to
be fungible with rifles or shotguns), then a restriction on that kind of
weapon may indeed be seen as an unconstitutionally heavy burden on
the right .
Yet even if the burden imposed by assault weapons bans is modest,
perhaps it still isn’t adequately justified under the Bruen framework .
Assault weapons bans, unlike shall-issue license requirements, are not
“designed to ensure only that those bearing arms in the jurisdiction are,
in fact, ‘law-abiding, responsible citizens .’”
104
And it’s not clear that the
“regulatory burden” of assault weapons bans, modest as it may be, “is
comparably justified” to that imposed by “historical regulations .”
105
B. “Who” Bans: Bans on Possession by Certain Classes of People
The constitutionality of such bans following Bruen is likewise a
matter of scope, chiefly related to the Court’s conclusion that the right
is limited to “law-abiding, responsible citizens,”
106
and the Court’s
repeated dicta that restrictions on “felons and the mentally ill” are
102
See also Daniel Francis, Exit Legitimacy, 50 Vand . J . Transnat’l L . 297, 307 n .46 (20 17)
(collecting sources supporting such a right as a matter of political theory) .
103
U . S . Const . amend . II .
104
Bruen, 142 S . Ct . at 2138 n .9 (citation omitted) .
105
Id. at 2118; cf. Friedman v . City of Highland Park, 577 U .S . 1039 (20 15) (Thomas,
J ., dissenting from the denial of certiorari) (suggesting that assault weapons bans may be
unconstitutional) .
106
Bruen, 142 S . Ct . at 2131; District of Columbia v . Heller, 554 U .S . 570, 635 (2008) .
1970 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
“presumptively lawful regulatory measures .”
107
Whether the Second
Amendment protects the rights of 18-to-20-year-olds to possess or
acquire guns is likewise a matter of scope, being heavily litigated now
with reference to the history of gun restrictions in the 1800s .
108
1. Felons
Courts have nearly uniformly upheld laws denying gun rights to
people who have been convicted of felonies, even nonviolent felonies,
generally concluding that felons categorically lack Second Amendment
rights .
109
The Third Circuit’s en banc opinion in Range v. Attorney
General takes a different view, though: That decision held that a person
who had pleaded guilty in 1995 to making a false statement to obtain
food stamps—a felony under Pennsylvania law—retained his Second
Amendment rights,
110
and its logic suggests that the same may apply
even to violent felonies,
111
though a concurrence would have limited the
ruling just to certain kinds of minor nonviolent crimes .
112
A few courts
107
Bruen, 142 S . Ct . at 2162 (Kavanaugh, J ., concurring); Heller, 554 U .S . at 626 & n .26 .
108
Compare, e.g., Hirschfeld v . Bureau of Alcohol, Firearms, Tobacco & Explosives, 5 F .4th
407, 418–40 (4th Cir . 2021) (concluding that gun possession and acquisition by 18-to-20-year-
olds is within the scope of the Second Amendment), vacated as moot, 14 F .4th 322 (4th Cir .
2021), and Jones v . Bonta, 34 F .4th 704, 717–23 (9th Cir . 2022) (likewise), vacated and reh’g
en banc granted, 47 F .4th 1124 (9th Cir . 2022), with Nat’l Rifle Ass’n v . Bureau of Alcohol,
Firearms, Tobacco & Explosives, 700 F .3d 185, 200–04 (5th Cir . 2012) (concluding that gun
possession by 18-to-20-year-olds is outside the scope of the Second Amendment) . See also
David B . Kopel & Joseph G .S . Greenlee, The Second Amendment Rights of Young Adults,
43 S . Ill . Univ . L .J . 495 (20 19) (examining colonial and founding-era sources to conclude
that extra gun regulations for young adults were considered permissible, but prohibitions on
ownership were not) .
109
E.g., Hamilton v . Pallozzi, 848 F .3d 614, 629 (4th Cir . 20 17); United States v . Scroggins,
599 F .3d 433, 451 (5th Cir . 2010); United States v . Vongxay, 594 F .3d 1111, 1114–18 (9th Cir .
2010); United States v . Cropper, 812 F . App’x 927, 930 (11th Cir . 2020) .
110
Range v . Att’y Gen ., 69 F .4th 96, 98, 103, 106 (3d Cir . 2023) (en banc) .
111
Id. at 103–06 (generally casting doubt on arguments that the Second Amendment’s
scope excludes felons) .
112
Id. at 110 (Ambro, J ., concurring) (concluding that the federal felon-in-possession ban
“fits within our Nation’s history and tradition of disarming those persons who legislatures
believed would, if armed, pose a threat to the orderly functioning of society,” and joining
the majority “with the understanding that it speaks only to [Range’s] situation, and not to
those of murderers, thieves, sex offenders, domestic abusers, and the like”); see also Binderup
v . Att’y Gen ., 836 F .3d 336, 351 (3d Cir . 20 16) (en banc) (“[T]o determine whether the
Challengers are shorn of their Second Amendment rights, Heller requires us to consider
the maximum possible punishment but not to defer blindly to it .”); Miller v . Sessions, 356
F . Supp . 3d 472, 477–83 (E .D . Pa . 20 19) (concluding that courts deciding felons’ Second
Amendment claims should consider “(1) whether the state legislature classifies the offense
as a felony or a misdemeanor; (2) whether the offense was violent; (3) the actual punishment
imposed; and (4) any cross-jurisdictional consensus regarding the offense’s seriousness”);
United States v . Woolsey, 759 F .3d 905, 909 (8th Cir . 20 14) (leaving open the possibility
of an exception for minor crimes in a future case); United States v . Williams, 616 F .3d 685,
have suggested that people convicted only of sufficiently minor felonies
retain their Second Amendment rights .
Bans on felons possessing guns do seriously burden people’s abili-
ties to satisfy their “ordinary self-defense needs .”
113
The felons them-
selves may of course have to lawfully defend themselves . And bans that
ostensibly limit just felons may also affect their housemates (spouses,
lovers, and others), since the housemates’ possessing a gun may be
seen as allowing the felon to “constructive[ly] possess[]” the gun in the
shared home,
114
and thus as criminally aiding the felons’ illegal posses-
sion .
115
It seems quite likely that the Court will have to resolve these
questions soon, given the circuit split created by the Third Circuit’s
Range decision .
2. Subjects of Restraining Orders and “Red Flag” Orders
Courts sometimes suspend gun rights even in the absence of crimi-
nal convictions . One area is so-called “red flag” laws, which generally
require a finding that the defendant is dangerous to himself or to others,
though the finding need not be made under the “beyond a reasonable
doubt” standard required for a criminal conviction; those laws have
been carefully explored by others .
116
Another area is domestic restrain-
ing orders issued based on a finding, again not beyond a reasonable
doubt, that the defendant has acted violently or threatened violence; I
discuss those elsewhere .
117
693–94 (7th Cir . 2010) (same); Kanter v . Barr, 919 F .3d 437, 451 (7th Cir . 20 19) (Barrett, J .,
dissenting) (arguing a ban on felony possession is unconstitutional as applied to an individual
convicted of mail fraud); Folajtar v . Att’y Gen ., 980 F .3d 897, 914–15 (3d Cir . 2020) (Bibas,
J ., dissenting) (“Historically, Second Amendment rights were limited for dangerous—but
not nondangerous—felons .”); Volokh, supra note *, at 1498–99 & n .224 (citing some earlier
cases); Joseph G .S . Greenlee, The Historical Justification for Prohibiting Dangerous Persons
from Possessing Arms, 20 Wyo . L . Rev . 249, 251 (2020) (“[P]rohibitions on violent felons may
be presumptively lawful under Heller, but prohibitions on nonviolent felons contradict the
original understanding of the Second Amendment .”) .
113
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2150 (2022) .
114
Cf. Volokh, supra note *, at 1499; State v . Beeman, 417 P .3d 541, 543–44 (Or . Ct . App .
20 18) (suggesting that the constructive possession doctrine may in some measure be limited
by the Second Amendment) .
115
Some jurisdictions allow criminal liability for knowingly aiding another’s conduct,
without requiring purposeful aiding . Volokh, supra note *, at 1499 n .226 . And many
jurisdictions allow civil liability for keeping a firearm where someone with a violent past
might be able to access it . Id.
116
See, e.g., David B . Kopel, Red Flag Laws: Proceed with Caution, 45 L . & Psych . Rev .
39 (2021) (discussing the various due process, enforcement, and other issues that red flag
statutes have instigated) .
117
See Volokh, supra note *, at 1505–06 . Some courts have allowed such restrictions
(including when an order does not expressly ban gun possession but rather triggers 18 U .S .C .
§ 922(g)(8), which bans gun possession by those subject to such an order) precisely because
1972 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
But other such orders are entered even without a finding of vio-
lence, perhaps just based on repeated unwanted phone calls or e-mails,
alleged libel, and the like .
118
A civil finding of such nonviolent conduct
shouldn’t, I think, suffice to strip a defendant of a constitutional right,
whether permanently or for months or years .
119
3. The Mentally Ill
As noted above, the Court has said that the “mentally ill,” along-
side “felons,” are presumptively excluded from the scope of the Second
Amendment .
120
But while the word “felon” refers to past behavior, “the
mentally ill” refers to the present, which suggests that people who are
no longer mentally ill may regain their Second Amendment rights . This
might pose problems for 18 U .S .C . § 922(g)(4), which on its face cov-
ers anyone who has been adjudicated mentally incompetent in certain
ways, with only limited mechanisms available for people to regain their
rights .
121
they are based on a finding of violence, which (the theory goes) takes the defendant outside
the scope of the Second Amendment . See, e.g., United States v . Kays, No . CR-22-40-D, 2022
WL 3718519, at *4 (W .D . Okla . Aug . 29, 2022) (taking this view post-Bruen); United States
v . Boyd, 999 F .3d 171, 187–88 (3d Cir . 2021); Wargocz v . Brewer, No . 02-17-00178-CV, 20 18
WL 4924755, at *9 (Tex . App . Oct . 11, 20 18); United States v . Luedtke, 589 F . Supp . 2d 10 18,
1023–24 (E .D . Wis . 2008); United States v . Emerson, 270 F .3d 203, 262 (5th Cir . 2001) . But see
United States v . Perez-Gallan, No . PE:22-CR-00427-DC, 2022 WL 16858516, at *8–12 (W .D .
Tex . Nov . 10, 2022) (rejecting this view post-Bruen), aff ’d, No . 22-51019, 2023 WL 4932111
(5th Cir . Aug . 2, 2023) .
118
See Volokh, supra note *, at 1503–07; Eugene Volokh, Overbroad Injunctions Against
Speech (Especially in Libel and Harassment Cases), 45 Harv . J . L . & Pub . Pol’y 147, 153–61
(2022) .
119
See, e.g., Dean v . Bevis, 322 So . 3d 167, 172 (Fla . Ct . App . 2021) (concluding that firearms
prohibition in anti-stalking order was unconstitutional, because plaintiff’s “allegations do
not show that [defendant] posed a significant danger to [plaintiff] or anyone else for personal
injury based on his possession of a firearm”); United States v . Bena, 664 F .3d 1180, 1185 (8th
Cir . 2011) (noting the question but concluding that there was no need to resolve it in that
case) . But see Altafulla v . Ervin, 189 Cal . Rptr . 3d 316, 323–25 (Ct . App . 20 15) (upholding
California’s categorical ban on gun possession by people subject to domestic restraining
orders, even though that ban doesn’t require a finding of violence or threatened violence) .
120
See District of Columbia v . Heller, 554 U .S . 570, 626 (2007); see also Ramirez v .
Commonwealth, 94 N .E .3d 809, 813 (Mass . 20 18) .
121
See, e.g., United States v . Tucker, 47 F .4th 258, 261 (5th Cir . 2022) (reserving this
question); Beers v . Att’y Gen ., 927 F .3d 150, 157–59 (3d Cir . 20 19) (holding that people who
were once adjudicated mentally incompetent do not regain Second Amendment rights),
vacated as moot sub nom. Beers v . Barr, 140 S . Ct . 2758 (2020); Tyler v . Hillsdale Cnty . Sheriff’s
Dep’t, 837 F .3d 678, 687–88, 699 (6th Cir . 20 16) (holding that these individuals sometimes
might regain such rights); Mai v . United States, 974 F . 3d 1082, 1084 (9th Cir . 2020) (Bumatay,
J ., dissenting from denial of rehearing en banc) (arguing that, though Second Amendment
rights can be limited based on “present-day [mental] impairments,” they cannot be limited
once there is a “finding that [the person] is no longer mentally ill or dangerous”) . Bruen’s
rejection of the countervailing-government-interest rationale implicitly overrules those
4. Illegal Drug Users
The Fifth Circuit recently held that at least some drug users
had a Second Amendment right to possess guns, notwithstanding
the federal ban on gun possession by anyone “who is an unlawful
user of or addicted to any controlled substance,”
122
concluding that
such drug users were not outside the Second Amendment’s histori-
cal scope . People who are actually under the influence of drugs, the
court concluded, “may be comparable to a mentally ill individual
whom the Founders would have disarmed .”
123
But “while sober,”
such people are “like the repeat alcohol user in between periods of
drunkenness,” who have not historically been stripped of their Second
Amendment rights .
124
C. “Where” Bans: Prohibition on Possession in Certain Places
Such bans, following Bruen, would be considered under the “sen-
sitive places” exception (which the Court has concluded is part of the
scope of the Second Amendment),
125
but for some places the govern-
ment’s role as proprietor may also justify some extra power, as it does
for the First Amendment and other rights .
126
D. “How” Restrictions: Rules on How Guns Are To Be Stored
or Carried
Here too the focus post-Bruen would need to be on the burden
(unless there is a close historical analog that justifies the particular re-
striction); the question should be whether the requirement materially
interferes with people’s ability to defend themselves, including in situa-
tions when seconds count .
127
decisions that rejected claims of the formerly mentally ill under intermediate scrutiny, such
as Mai, and requires courts to focus instead on whether something about original meaning
or history excludes such people from the scope of the right .
122
United States v . Daniels, No . 22-60596, 2023 WL 5091317, at *15 (5th Cir . Aug . 9, 2023) .
123
Id. at *10 .
124
Id.
125
For some recent work discussing the scope of this exception, see David B . Kopel &
Joseph G .S . Greenlee, The “Sensitive Places” Doctrine: Locational Limits on the Right to Bear
Arms, 13 Charleston L . Rev . 205, 206–07 (20 18), and Darrell A .H . Miller, Constitutional
Conflict and Sensitive Places, 28 Wm . & Mary Bill Rts . J . 459, 461 (20 19) .
126
See supra Introduction .
127
United States v. Masciandaro upheld a requirement that any guns in parks be kept
unloaded, on the theory that the requirement passed intermediate scrutiny, but also that it
“le[ft] largely intact the right to possess and carry weapons in case of confrontation .” 638
F . 3d 458, 474 (4th Cir . 2011) (cleaned up) . But the intermediate scrutiny analysis doesn’t
survive Bruen, and I think the burden is considerably greater than Masciandaro suggested .
1974 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
E. “When” Restrictions: Rules on When People Are Temporarily
Barred from Possessing Guns
1. Restrictions on Possession While Intoxicated
Some courts have upheld such restrictions under a countervailing
interest theory, applying intermediate scrutiny,
128
a test that has been
rejected by Bruen .
129
But the same result should be reachable as a matter of
scope, recognizing that a restriction need only be a “representative historical
analogue, not a historical twin”
130
: Restricting those who are permanently
impaired as a result of illness or disability is analogous to restricting those
who are temporarily mentally impaired as a result of intoxication—in
both situations, “the person is unable to rationally exercise his right to
bear arms and presents a danger to others .”
131
Indeed, the restriction on
possession while intoxicated is a more modest burden than the restriction
on possession by the mentally ill, both because it is temporary and because
it is avoidable by the restricted person (simply by not getting intoxicated) .
On the other hand, this reasoning should not be extended to prohibit
“constructive possession,” in instances where a gun owner is drunk in
their home where a gun is stored (but not immediately at hand) . Such
a constructive possession theory would effectively bar anyone who
occasionally gets drunk at home from owning a gun, or would have to
move it elsewhere before any occasional substantial drinking .
132
2. Waiting Periods
Bruen authorizes modest delays before a person may exercise the
right to carry guns,
133
and the same logic may apply to similar waiting
128
E.g., State v . Christen, 958 N . W .2d 746 (Wis . 2021); State v . Weber, 168 N .E .3d 468
(Ohio 2020) . But see People v . Deroche, 829 N . W .2d 891 (Mich . Ct . App . 2013) (applying
intermediate scrutiny but concluding that “the government cannot justify infringing on
defendant’s Second Amendment right to possess a handgun in his home simply because
defendant was intoxicated in the general vicinity of the firearm”) .
129
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2129 (2022) .
130
Id. at 2133 .
131
Weber, 168 N .E .3d at 487–90 (Dewine, J ., concurring in the judgment) . But see Christen,
958 N . W .2d at 776 n .5 (Grassl Bradley, J ., dissenting) (contending that Heller’s language about
the mentally ill is “of no relevance in assessing the constitutionality of laws criminalizing
the intoxicated bearing of firearms”); id. at 764–66 (Hagedorn, J ., concurring) (arguing that
gun possession by the intoxicated is constitutionally unprotected, but turning to specific
historical evidence on the subject—which strikes me as relatively thin—rather than relying
on the analogy to mental illness) .
132
See Christen, 958 N . W .2d at 758–59; Deroche, 829 N . W .2d at 897; see also State v .
Beeman, 417 P . 3d 541, 543–44 (Or . Ct . App . 20 18) (declining to decide whether constructive
possession can be constitutionally applied concerning prohibitions on the possession of
firearms while intoxicated) .
133
Bruen, 142 S . Ct . at 2138 n .9 .
periods designed to verify that the person is authorized to possess guns .
The Court has allowed some waiting periods for other rights, for in-
stance to get a permit for a parade or large protest, to get a marriage
license, or to get an abortion .
134
Yet again, the delays must be modest
and “designed to ensure only that” gun carriers or perhaps gun owners
“are, in fact, ‘law-abiding, responsible citizens .’”
135
F. Taxes, Fees, and Other Expenses
Bruen made clear that non-“exorbitant” fees are constitutionally
permissible conditions on carry licenses .
136
Moderate fees and taxes for
gun purchases would presumably be permissible as well, as would insur-
ance requirements that impose a modest cost .
After Heller but before Bruen, courts upheld concealed carry fees
of $200
137
and a handgun purchase permit fee of $340,
138
but struck
down a $1,000 handgun purchase permit fee .
139
Post-Bruen cases now
must consider which fees (including ones of $200 or $340) constitute
“exorbitant fees [that] deny ordinary citizens their right to public carry”
or their right to possess the guns at home .
140
Fees that are closely con-
nected to the costs of administering a permitting system might be more
justifiable than ones that operate simply as taxes or as attempts to
deter gun possession or carrying .
141
But even when dealing with fees
that are tied to administrative costs, I think courts should recognize that
“[t]he poorly financed [self-defense] of little people,” like their “poorly
financed causes,”
142
deserves constitutional protection as much as the
self-defense of the rich .
134
Silvester v . Harris, 843 F .3d 816, 832 (9th Cir . 20 16) (Thomas, J ., concurring); Volokh,
supra note *, at 1538–42 .
135
Bruen, 142 S . Ct . at 2138 n .9 .
136
Id.
137
Maryland Shall Issue, Inc . v . Hogan, 566 F . Supp . 3d 404, 437 (D . Md . 2021) ($200) .
138
Kwong v . Bloomberg, 723 F .3d 160 (2d Cir . 2013) ($340) .
139
Murphy v . Guerrero, No . 1:14-CV-00026, 20 16 WL 5508998 (D . N . Mar . I . Sept . 28,
20 16) ($1,000) .
140
Bruen, 142 S . Ct . at 2138 n .9 .
141
See Kwong, 723 F .3d at 165 (“[I]mposing fees on the exercise of constitutional rights
is permissible when the fees are designed to defray (and do not exceed) the administrative
costs of regulating the protected activity .”); Volokh, supra note *, at 1543 (drawing analogies
to similar permitting fees imposed on First Amendment-protected activities such as
demonstrations and charitable fundraising) .
142
Martin v . City of Struthers, 319 U .S . 141, 146 (1943); see also City of Ladue v . Gilleo,
512 U .S . 43, 57 (1994) (noting the importance of preserving “cheap and convenient form[s] of
communication[s]” that are particularly needed by “persons of modest means”) .
1976 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
G. Restrictions on Sellers
Heller expressly endorsed “laws imposing conditions and qualifica-
tions on the commercial sale of arms,”
143
and both the McDonald plu-
rality and Bruen reaffirmed that .
144
And this fits well with the scope and
burden inquiries .
The Second Amendment is seen as a right of gun owners, not of
gun sellers, a difference relevant to the scope inquiry . In this respect,
it differs from the First Amendment, which protects publishers and
bookstores in part because they themselves are seen as speaking by
distributing their chosen material .
145
And many modest “conditions and
qualifications” on commercial sale impose only a modest burden on
buyers .
146
But when restrictions make it too hard or expensive for peo-
ple to buy guns, they become unconstitutional as excessive burdens .
147
H. Restrictions on Training
For reasons similar to those just discussed, restrictions on shooting
ranges should be evaluated by considering whether they substantially
burden gun owners’ ability to train themselves .
148
143
District of Columbia v . Heller, 554 U .S . 570, 626–27 (2008) .
144
McDonald v . City of Chicago, 561 U .S . 742, 786 (2010) (plurality opinion); Bruen, 142 S .
Ct . at 2162 .
145
See Volokh, supra note *, at 1545 n .437 .
146
See, e.g., Teixeira v . County of Alameda, 873 F .3d 670 (9th Cir . 20 17) (en banc) (upholding
zoning rules that excluded all gun sellers from the county on the grounds that they didn’t
substantially burden gun buyers in any practical sense, given the availability of nearby gun
sellers); Chi . Gun Club v . Village of Willowbrook, No . 17 C 6057, 20 18 WL 2718045, at *6
(N .D . Ill . June 6, 20 18) (upholding zoning rules in part because on the facts of the case there
is no basis for “any practical assertion that the implicated right has been even moderately
burdened”) . Query whether such total exclusions from a municipality should be seen as
going too far . Cf. Schad v . Borough of Mount Ephraim, 452 U .S . 59, 76 (1981) (rejecting
zoning rules that excluded all live entertainment from a small town, though noting that there
was “no evidence in this record to support the proposition that the kind of entertainment
appellants wish to provide is available in reasonably nearby areas”) . Note: I was engaged to
file an amicus brief in Teixeira opposing the constitutionality of the zoning rules .
147
See, e.g., United States v . Flores, No . H-20-427, 2023 WL 361868, at *5 & n .24 (S .D . Tex .
Jan . 23, 2023) (distinguishing between minor, downstream costs to the firearm industry and
laws that meaningfully, and thus unlawfully, burden on gun possession rights); Pena v . Lindley,
898 F .3d 969, 1009 (9th Cir . 20 18) (Bybee, J ., concurring in part and dissenting in part) (using
analogies to the First Amendment to distinguish between minor restrictions on the commercial
sale of firearms and unconstitutionally excessive burdens on Second Amendment rights) .
148
See Ezell v . City of Chicago, 651 F .3d 684, 704 (7th Cir . 2011) (“The right to possess
firearms for protection implies a corresponding right to acquire and maintain proficiency in
their use; the core right wouldn’t mean much without the training and practice that make
it effective .”); cf. Chi. Gun Club, 20 18 WL 2718045, at *8 (upholding a restriction because
“the Second Amendment right of the public to train in firearm proficiency . . . has already
been abundantly accommodated by nearby facilities,” and because “[p]laintiffs’ potential
customers have a surplus of close and accessible gun ranges”) .
I. “Who Knows” Restrictions: Nondiscretionary Licensing,
Background Checks, Registration, and Ballistics Tracking Databases
Bruen endorsed nondiscretionary licensing regimes, under which
those who would exercise the right to bear arms must disclose their
identities to the government . And it did so based not on some history-
based scope argument, but on the theory that such regimes are not
substantial burdens on the right .
149
Ballistic tracking databases, which
are likewise “designed to ensure only that” gun owners remain “law-
abiding, responsible citizens”
150
(and to catch non-law-abiding owners),
seem likely to be similarly constitutional .
Perhaps there is some limit on this, by analogy to other rights: Peo-
ple generally have a right to speak anonymously—because burdens on
anonymous speech are seen as burdening the right to speak
151
—even
though they can be required to get permits to hold large demonstra-
tions .
152
There thus may be some room to argue that licensing and reg-
istration schemes for mere gun ownership (rather than gun carrying),
especially ones that call for centralized storage of this information, are
unconstitutional .
153
J. Restrictions on Gun Use
Heller and Bruen do not speak directly to when people can use
arms in self-defense . They presuppose a preexisting right to self-defense,
which may be a constitutional right
154
: Twenty state constitutions
expressly secure such a right, and right-to-bear-arms provisions may
implicitly secure it .
155
But any such right would presumably reflect
149
See Bruen, 142 S . Ct . at 2138 n .9 .
150
Id.
151
E.g., McIntyre v . Ohio Elec . Comm’n, 514 U .S . 334, 347 (1995) .
152
E.g., Cox v . New Hampshire, 312 U .S . 569, 576 (1941) .
153
See Heller v . District of Columbia, 670 F .3d 1244, 1295 n .19 (D .C . Cir . 2011) (Kavanaugh,
J ., dissenting) (concluding that gun registration is generally unconstitutional, partly by
analogy to the principles that “citizens may not be forced to register in order to exercise
certain other constitutionally recognized fundamental rights, such as to publish a blog or
have an abortion,” and distinguishing voter registration requirements on the grounds that
they “serve the significant government interest of preventing voter fraud”); Volokh, supra
note *, at 1546–48 (discussing various range of rights as to which identification is forbidden
and various others as to which it is permitted, and observing that this “leaves the question of
what [right] the right to bear arms is most like”) .
154
See, e.g., Wrenn v . District of Columbia, 864 F .3d 650, 664–65 (D .C . Cir . 20 17) (“[T]he
Second Amendment protects an individual right of responsible, law-abiding citizens to defend
themselves .”) .
155
See generally Eugene Volokh, State Constitutional Rights of Self-Defense and Defense
of Property, 11 Tex . Rev . L . & Pol . 399, 401–07, 414–15 (2007) (listing state constitutional
provisions that provide a right to self-defense) .
1978 NEW YORK UNIVERSITY LAW REVIEW [Vol . 98:1950
baseline traditional American self-defense law, including its various
limitations;
156
for instance, American law has generally not allowed
deadly self-defense against mere punches that don’t risk serious bodily
injury,
157
and there’s no reason to think the Second Amendment changes
that .
Likewise, there has long been a dispute in American law about
whether people can use deadly force in self-defense in a public place
when there is a completely safe avenue of retreat .
158
Whatever one
thinks of that dispute as a policy matter, it isn’t resolved by the Second
Amendment and its state constitutional analogues .
Conclusion
Bruen holds that the right to bear arms can’t be overcome by “com-
pelling governmental interests,”
159
once it is shown that the exercise
of the right to bear arms is within the scope of the right, as defined
by its text, original meaning, and history . But Bruen also leaves room
for certain regulations that impose only minor burdens on the right,
and perhaps for some regulations imposed by the government acting
as property owner or employer . Courts and litigators should consider
these possibilities, as well as the more prominent focus on text, original
meaning, and history that Bruen is more commonly seen as requiring .
156
See, e.g., United States v . Morsette, 622 F .3d 1200, 1202 (9th Cir . 2010) (“[N]either
[Heller nor McDonald] purports to change, or even to comment on, the law as to the
definition of self-defense in a criminal case .”); Calderone v . City of Chicago, No . 18 C 7866,
20 19 WL 4450496, at *3 (N .D . Ill . Sept . 17, 20 19) (“Certainly, the right to be able to engage
in self-defense also implies a right to the availability of the assertion of self-defense in legal
proceedings . . . . But historical legal commentary and custom indicate that the question of
whether a particular actual use of a gun constitutes self-defense is a question left to criminal
and tort law, about which the Second Amendment is silent .”) (paragraph break omitted),
aff ’d, 979 F .3d 1156 (7th Cir . 2020) (affirming on qualified immunity grounds) .
157
See Paul H . Robinson, Matthew G . Kussmaul, Camber M . Stoddard, Ilya Rudyak &
Andreas Kuersten, The American Criminal Code: General Defenses, 7 J . Legal Analysis 37,
49 (20 15) .
158
See, e.g., Commonwealth v . Selfridge, 2 Am . St . Trials 544 (Mass . 1806), reprinted in L .B .
Horrigan & Seymour D . Thompson, Select American Cases on the Law of Self-Defence
1, 4, 17–18 (1874) (quoting one judge’s grand jury charge and another judge’s trial jury charge
that disagreed on this question) .
159
N .Y . State Rifle & Pistol Ass’n v . Bruen, 142 S . Ct . 2111, 2126–27 (2022) .