Text, History, & Tradition: Considering the Second Amendment Post-Bruen

Second Amendment jurisprudence has been revamped in the wake of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, handed down by the United States Supreme Court in 2022. Prior to Bruen, legislative infringements on Second Amendment rights – i.e., firearm regulations – were commonly subjected to a familiar standard of scrutiny when challenged on constitutional grounds. See e.g., United States v. Daniels, 77 F.4th 337, 341 (5th Cir. 2023)(discussing the pre-Bruen standard for reviewing gun regulations challenged on constitutional grounds). For example, courts previously asked whether the government had a sufficiently strong interest in a challenged firearm regulation and whether the regulation was sufficiently tailored. Id. Bruen expressly disposed of this type of “means-end” standard of review. 142 S. Ct. 2111, 2127. Instead, courts must determine “whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” Id. at 2131. Because the Second Amendment was meant to codify a pre-existing right, courts must rely on history to discern the meaning of the text and to ascertain any pre-existing limits on that right. Id. at 2130-31.

Bruen now demands a two-prong approach to determine whether a firearm regulation is constitutional. Id. at 2126. First, a court must first determine whether the plain text of the Second Amendment covers an individual’s conduct. Id. If it does, the Constitution presumably protects that conduct. Id. Second, the government must justify the regulation by affirmatively showing that the regulation is consistent with the nation’s historical tradition regarding firearm regulations. Id. “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” Id. (citation omitted).

This year, two cases have been handed down in the Fifth Circuit that illustrate Bruen’s potential consequences and likely foreshadow the array of Second Amendment cases that will be adjudicated in the near future. In United States v. Daniels, the court heard a constitutional challenge regarding 18 U.S.C. § 922(g)(3), which bars an individual from possessing a firearm if he is an unlawful user of a controlled substance. 77 F.4th 337, 339.  Daniels was charged under the statute after he was arrested during a traffic stop during which law enforcement found two firearms in his possession along with several marijuana cigarette butts in the ashtray. Id. at 340. Daniels admitted to being a regular marijuana user, but there was no evidence at trial that he was under the influence of the drug at the time he was in possession of the firearms. Id. Daniels challenged § 922(g)(3) on constitutional grounds, but the motion was denied by the district court. Id. The jury ultimately rendered a guilty verdict, and Daniels reasserted the Second Amendment claim on appeal. Id. at 341.

To answer the question of whether Daniel’s conviction violated his right to bear arms, the court said it must determine whether “§922(g)(3) is consistent with our nation’s historic tradition of firearm regulation.” Id. at 339. In an attempt to support §922(g)(3), the government pointed to generalized traditions of disarming dangerous persons, but the court did not find such traditions to support a restriction on nonviolent drug users. Id. at 340. The court found that, while the government has historically regulated conduct involving the combination of guns and intoxicating substances, “at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another.” Id. Quoting Bruen, the court reiterated that “the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Id. at 342.

In United States v. Bullock, District Court Judge Carlton Reeves determined that 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms, was unconstitutional as applied to the defendant. No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309 (S.D. Miss. June 28, 2023). Bullock was convicted of aggravated assault and manslaughter in 1992, and he served over a decade in state prison.  Id. at *2. The Government alleged that Bullock violated 18 U.S.C. § 922(g)(1), when he knowingly possessed a firearm and ammunition in 2018. Id. at *3. Following many pandemic-related continuances and other delays, Bullock’s case had not yet been tried, and, meanwhile, Bruen had been decided. Id.  Bullock filed a motion to dismiss, arguing that Bruen rendered the felon-in-possession law unconstitutional as applied to him. Id. The crux of Bullock’s argument was that the nation’s history and tradition of firearm regulation did not support a law that strips felons of their Second Amendment rights merely because of their felon status. Id. at *4. Judge Reeves reluctantly agreed. Id. at *34.            

Judge Reeves began his opinion by expressing his concern with the Bruen standard: “Judges are not historians. We were not trained as historians. We practiced law, not history. And we do not have historians on staff. Yet the standard articulated in Bruen expects us to play historian in the name of constitutional adjudication.” Id. at *4 (internal quotation marks omitted).  The government unsuccessfully argued that “the prohibition against felons possessing firearms is so thoroughly established as to not require detailed exploration of the historical record.” Id. at *5. The government continued to rely on dicta from prior cases, most of which were decided before Bruen. Id. at *2. Neither the government nor Bullock submitted expert reports regarding the history and tradition of felon-in-possession laws or close historical analogues. Id. at *4. Judge Reeves stressed that it was the government’s burden to affirmatively show such information in order to prosecute under the challenged statute. Id. at *28-*31. Because the government failed to provide evidence that the nation’s history and tradition supports felon disarmament, the court granted Bullock’s motion to dismiss the charges against him.  Id. at *31.