In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced a two-step test for adjudicating Second Amendment challenges. Step one: Decide whether “the Second Amendment’s plain text covers an individual’s conduct.” If so, courts should move on to step two: Decide whether the regulation of that conduct “is consistent with the Nation’s historical tradition of firearm regulation.”
The court’s most recent Second Amendment decision, Wolford v. Lopez, clarifies that step one is a narrow textual inquiry. Courts should ask who is claiming the right, whether weapons are involved, and whether the law restricts keeping and bearing such weapons. This post looks more closely at Wolford’s step-one guidance and how it is (and is not) reshaping lower court decisions.
Why guidance was needed
Before Wolford, some lower courts and litigants improperly converted step two questions (whether the plain text covers the conduct at issue) into step one questions (whether regulating that conduct “is consistent with the Nation’s historical tradition of firearm regulation”). This matters because the burden shifts between steps one and two. The rights-claimant bears the burden of persuading the court that the text of the Second Amendment covers his or her conduct; the government party bears the burden of persuading the court that its regulation is historically justified. By addressing a question at the first step, rather than the second, a court makes it more difficult for the rights claimant to prevail.
Bringing historical practices into step one
The Bruen decision instructs lower courts to apply the “original meaning” of the Second Amendment, so the “plain text” of that provision bears its historical, rather than contemporary, meaning. If our usage of “arms” over the past 235 years changed its meaning – in the way that, say, our usage of “nice” has – courts would have to use the meaning the word was understood to bear at the time the Bill of Rights was ratified. That is why, in 2008’s landmark Second Amendment case District of Columbia v. Heller, the Supreme Court looked to dictionaries dating the 18th century to figure out what the plain text of the Second Amendment means. As it happens, the definitions of “arms” the court discovered accord with contemporary usage: e.g., “weapons of offence, or armour of defence.” (Of course, the weapons to which “arms” refers today differ from those of the 18th century, but it does not follow that the word’s meaning differs.)
Some lower courts have reasoned that, if they must look to history to ascertain the meaning of “arm,” then they ought to be able to consider historical evidence that the right to keep and bear arms was thought not to extend to conduct involving certain types of weapons. Specifically, Heller stated “that the sorts of weapons protected were those in common use at the time.” Citing that language, courts have insisted that “in common use for lawful purposes” is part of the historical meaning of “arms” in the Second Amendment. This would mean that a claimant must prove that the weapon at issue is in common use to get past step one of the Bruen analysis. (Courts have used similar reasoning to carve exceptions out of the word “people.”)
But that puts the inquiry in the wrong step. Weapons that are not “in common use for lawful purposes” are still “arms” within the meaning of the Second Amendment; Heller’s theory is that the government may regulate them consistent with what Heller described as the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Thus, the question whether an arm is “in common use” or is instead “dangerous and unusual” properly arises at Bruen’s second step, where the government bears the burden of showing that one’s conduct may be restricted.
Bringing policy into step one
Some courts have also increased the burden on claimants in step one by requiring them to prove that the regulation’s impact on their right is substantial enough to trigger a step two inquiry. These courts, for example, point out that selling firearms is neither “keeping” nor “bearing” them, or conclude that magazines are not “arms” because they cannot function independently as weapons. According to these courts, claimants who seek to sell arms or own magazines cannot rest at showing that sales restrictions or magazine bans burden conduct covered by the plain text of the Second Amendment, as they undoubtedly do. They must also show that the regulation meaningfully limits their ability to exercise their constitutional right.
This move, too, transfers questions from step two (where they took the form of, “does the burden the government imposes today resemble the burden in the historical regulatory tradition?”), to step one (where they take the form of, “does the regulation really burden the right enough for us to require a showing from the government?”). Indeed, that latter question is just the sort of “whether the right is really worth insisting upon” inquiry that the court rejected in Heller as untethered from an originalist understanding of the Second Amendment.
Wolford’s guidance
Wolford clarified that both of these moves are improper. That case involved a challenge to a Hawaii law that required permit-holders to obtain express permission from property owners before carrying a firearm onto private property held open to the public.
Wolford rejected Hawaii’s attempt to introduce “historical materials and precedents” into the “plain text” analysis. “[T]hey are out of place at Bruen’s first step,” the court pointed out. Rather, “the question is simply whether a challenged law falls within the Second Amendment’s plain text.”
Wolford explained that step one consists entirely of “three subsidiary questions” anchored in the text of the Second Amendment:
First, does the law apply to “the people”—which is to say, to “all members of the political community”? Second, does it concern any form of “Arms,” i.e., any weapon customarily used for offensive or defensive purposes? Third, does the law place any restrictions on either the “keep[ing]” (i.e., possession) or the “bear[ing]” (i.e., carrying) of arms?
Guided by these questions, the step one burden was “easily met” because Hawaii’s law restricted a right protected by the text of the Second Amendment: namely, the right to carry arms in public. This was so even though the law did not directly forbid bearing arms and reached only property (private property) where one has no absolute right to bear arms. Property owners – even owners who hold their property open to the public – had and still have a right to exclude persons carrying firearms. But by making it more difficult to obtain consent, Hawaii had restricted the right to bear arms, and that was enough to shift the burden to the government to show that such a restriction was “consistent with the Nation’s historical tradition of firearm regulation.”
Lower court responses
Wolford is already changing the shape of step one analysis in lower courts.
In Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, for example, the U.S. Court of Appeals for the 3rd Circuit (sitting en banc) held that New Jersey laws banning semi-automatic rifles and magazines capable of holding more than 10 rounds of ammunition violate the Second Amendment. It correctly held that the “common use” inquiry occurs at step two. Allowing that the question “was a closer call” before Wolford, the en banc court considered that Wolford settled the question of what role history plays at step one – as an inquiry into the text’s meaning.
And in Elite Precision Customs LLC v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, the U.S. Court of Appeals for the 5th Circuit held unconstitutional a federal ban on buying and selling handguns across state lines. It rejected the argument that the claim failed at step one because the ban “is only a minor infringement of the Second Amendment rights that still allows ample access to handguns by those who are permitted to possess and purchase them under state and local laws.” It held that, under Wolford, claimants need only demonstrate that the law restricts the keeping and bearing of arms, as a sales regulation does. “Once this showing has been made, the law in question is deemed presumptively unconstitutional, with no further need for argumentation and negotiation.”
Still, not all of Wolford’s lessons have registered. In particular, litigants continue to press lower courts to relocate questions from step two to step one by leaning on dicta in Heller listing “presumptively lawful regulatory measures.” As the court noted in Heller,
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Although these regulatory measures have no textual hook, some courts have misunderstood the “presumptively lawful” label to exempt certain of them from the presumption of unconstitutionality that attaches at Bruen step one. Last month in United States v. Berger, for example, the U.S. Court of Appeals for the 3rd Circuit wrote that “[t]he best way to understand the Court’s presumptive endorsement of these rules is at Bruen’s step one, as a reading of the Second Amendment’s text” – specifically, as a gloss on “infringe.”
So understood, the language relieves the government of the burden to show that the regulatory measure is part of a historical regulatory tradition. In courts that have embraced this reading, claimants thus bear the burden to show not only that the plain text of the Second Amendment covers their conduct, but also that the government’s regulation falls outside the historical scope of these “presumptively lawful regulatory measures.”
This reasoning cannot be reconciled with Wolford, which enumerated the subsidiary questions comprising step one without mentioning the presumptively lawful regulatory measures, and relegated the question of what comprises such historical exceptions to step two. As Pete Patterson recently explained on SCOTUSblog, Heller’s presumptively lawful regulatory measures touch conduct falling within the plain text of the Second Amendment that Wolford comprehensively explicated. To the extent that they are lawful, it is because they are part of the nation’s historical tradition of firearm regulation. Nothing in Heller or Bruen relieves the government of its burden to prove that they are in step two.
Wolford has returned step one to its textual roots. But until it grants a case involving a “presumptively lawful regulatory measure” – several such petitions remain pending – the confusion around that category may persist.