Prior to the Supreme Courtโs decision in New York State Rifle & Pistol Assโn v. Bruen, lower federal courts would balance the right to keep and bear โArmsโ against the policy interests asserted by a state in support of a gun control law. This balancing approach routinely resulted in federal courts upholding state and federal gun control laws. It became obvious over the years that many lower federal courts viewed the Second Amendment as a second-class right. In Bruen, the Supreme Court held that courts could not use interest balancing tests when addressing Second Amendment claims. Courts must now determine if a historical tradition of firearm regulation existed when the Second Amendment was enacted that would support the challenged gun control law. The historical tradition test represents an important step forward in protecting Second Amendment rights from the arbitrary interest balancing tests previously used by courts.
While the historical tradition test relies heavily on objective data, it can still be misapplied or abused to reach a particular result. Such misapplications, however, are easier to spot. A good example is a recent decision by the Ninth Circuit Court of Appeals that largely upheld a California law significantly limiting the concealed carry of firearms.
The historical tradition test is not an open-ended analysis that allows courts to use any type of legislation or case law they want. First, laws and caselaw that existed around the time the Second Amendment was enacted are the best indicators of what the Second Amendment protects. While the Supreme Court left open whether legislation and case law from the mid-1800s is relevant when analyzing the Second Amendment, the Courtโs decision in Bruen cautioned putting too much weight on such laws and cases.
Second, for problems that have existed since the enactment of the Second Amendment, states trying to support gun control laws need to identify laws and court decisions that have a close relationship to the law being challenged under the Second Amendment. For example, town hall meetings and other social gatherings occur today and also occurred with great frequency in the late 1700s and early 1800s. The absence of laws prohibiting the carrying of firearms to such events when the Second Amendment was enacted would undermine a current claim that a historical tradition supports laws prohibiting the carrying of firearms to various public events.
Third, laws from the late 1700s and early 1800s must have a close relationship to a modern gun control law before they can represent a relevant historical tradition. The issue is whether the reasons for the prior gun control law[s] and the way these laws operated are similar to the modern law. The Supreme Court has called this the โwhyโ and โhowโ analysis. Did the laws representing the claimed historical tradition regulate firearms for the same or similar reason (the โwhyโ) and did they accomplish their goal in the same or similar manner (the โhowโ). For example, a law from the early 1800s that was designed to prevent fires caused by storing black gunpowder do not have the same rationale (the โwhyโ) as a modern law prohibiting the carrying of a firearm. Further, some laws from the early 1800s prohibited the concealed carry of certain weapons. These laws, however, did not prohibit the open carrying of weapons. While states regulated how firearms were carried in the early 1800s, states did not prohibit the carrying of firearms altogether. This historical tradition does not support modern laws that entirely prohibit the carrying of firearms.
Fourth, the Supreme Court stated in Bruen that laws passed by territories that were not yet admitted as states are not entitled to any real weight. Territories typically had tiny populations and their governments operated as intermediate governing bodies. Their laws and regulations were not subject to the same controls that regular states faced.
Finally, laws and regulations from independent cities and towns are not nearly as relevant as state and federal laws. City governments typically had small populations in the late 1700s and early 1800s, and therefore represented the views of a small sliver of a stateโs population. Further, city and local governments were more likely to enact laws that were out of step with a national consensus.
The Supreme Court recognized that the historical tradition test has limitations. Some modern legislation addresses issues that did not exist or were not recognized in the late 1700s and early 1800s. In these situations, a strict application of the historical test is inappropriate and could expand the Second Amendment in ways the framers might not have accepted. In Bruen, the Supreme Court stated that in some situations, a court would have to evaluate the historical record using analogical reasoning (reasoning by analogy).
The Supreme Court applied analogical reasoning when it decided United States v. Rahimi. In Rahimi, the Supreme Court addressed a federal law that prohibited the possession of firearms by a person who is subject to a domestic restraining order. For the federal law to apply, the individual needed to have committed an act of violence or threatened actual violence against a domestic partner and the restraining order was entered by a court. The Supreme Court acknowledged that a historical twin to this law did not exist, and that domestic restraining orders are a relatively new legal development. The Supreme Court pointed out, however, that when the Second Amendment was enacted, laws existed that limited the rights of certain violent people to possess a firearm for limited periods of time. While these founding era laws are not identical to the federal law at issue in Rahimi, the intent (the why) behind these laws and their operation (the how) were close enough to support the temporary prohibition on the possession of firearms mandated by federal law.
Overall, the historical inquiry called for by Bruen is not a straitjacket, nor is it an open invitation to rubber stamp gun control laws.
In Bruen, the Supreme Court held that a New York law that required a showing of โgood causeโ to carry a firearm (also called a โmay issueโ law) was unconstitutional under the Second Amendment. The Bruen decision held that the Second Amendment protects the right of an individual to carry a firearm. New Yorkโs law violated the Second Amendment because New Yorkโs โmay issueโ law gave New York officials complete discretion whether to allow an individual to carry a firearm.
When Bruen was decided, California also had a โmay issueโ law with respect to the carrying of a firearm. After Bruen was decided, California changed its concealed carry law to a โshall issueโ law. While California gave with one hand, it took away with the other. While individuals could now get a concealed carry permit, the new concealed carry law greatly expanded the places in which carrying a firearm was prohibited. In Wolford v. Lopez, the Ninth Circuit largely upheld the carry restrictions in the new California concealed carry law. The Wolford decision shows how a court can misuse the historical test developed by Buren in order to reach a desired outcome.
In Californiaโs concealed carry law, it is unlawful, for example, for a holder of a concealed carry permit to carry a firearm into any business that serves alcohol. Most restaurants serve, at a minimum, beer and wine, which means the California law has made it unlawful for a person with a concealed carry permit to carry a firearm into most restaurants in the state. This restriction imposes a significant restraint on the Second Amendment right to carry a firearm.
The Second Amendment analysis concerning a prohibition on carrying a firearm into an establishment that serves alcoholic beverages should have been straightforward. Taverns and restaurants that served alcoholic beverages existed in great numbers when the Second Amendment was enacted. The absence of any laws prohibiting the carrying of firearms into taverns and restaurants during the colonial period should have ended the Second Amendment analysis. The Ninth Circuit chose to go a different route.
First, the Ninth Circuit based most of its analysis on laws that were enacted in the mid to late 1800s, which have limited relevancy when determining the historical tradition that existed when the Second Amendment was enacted. The earliest conceivably relevant law the Ninth Circuit cited was an 1817 law enacted by the city of New Orleans that prohibited the carrying of firearms into โballrooms.โ Other than some laws that addressed the militia, all of the remaining laws cited by the Ninth Circuit were enacted in the 1850s or 1870s, long after the Second Amendment was enacted.
The courtโs reliance on the New Orleansโ โballroomโ law, more importantly, reflects poorly on the courtโs analysis. First, taverns and restaurants certainly existed in New Orleans in 1817, yet the Ninth Circuit could not cite any New Orleans laws or municipal regulations that prohibited the carrying of firearms into those types of establishments. Ironically, New Orleansโ prohibiting firearms in โballroomsโ but not in taverns and restaurants is evidence that it was lawful to carry firearms in taverns and restaurants located in New Orleans. Second, there is no indication from the courtโs analysis that the ballroom prohibition had anything to do with the serving of alcohol in a ballroom. Third, a single regulation in a single city in 1817 does not show a historical tradition.
The Ninth Circuitโs analysis, unfortunately, does not improve. The court cites laws from Chicago and St. Paul in the 1850s that prohibited retailers that sold liquor from also storing gunpowder. The first, and most obvious, problem with the courtโs reliance on these laws is that they do not prohibit the carrying of a firearm into a tavern or restaurant. These laws do not even prohibit the carrying of a firearm into a retail establishment that was covered by the law. These laws are more properly considered fire regulations than anything else.
The Ninth Circuit then misses the irony of its next examples, when it points to three states that enacted laws in the late 1860s prohibiting the carrying of a firearm when intoxicated. These laws actually show that the state legislators did not prohibit the carrying of firearms into taverns and restaurants but criminalized getting intoxicated while carrying a firearm. Instead of supporting the Ninth Circuitโs holding, these laws highlight the flaws in the courtโs reasoning.
The court also absurdly points to certain laws from the mid-1700s that prohibited the sale of liquor within 5 miles of a meeting of the militia. Laws designed to protect military discipline do not support a blanket ban on carrying a firearm into a restaurant.
The Ninth Circuit does ultimately point to some laws that addressed the issue of carrying a firearm into a tavern or restaurant, but the laws it cites do not support its position. First, the court cites a New Mexico law from 1853 that prohibited the carrying of a firearm at a โBall or Fandango,โ and any โroom adjoining said ball where Liquors are sold.โ New Mexico was a territory in 1853, and the Supreme Court in Bruen held that the laws enacted by territories were entitled to little, if any, weight. Further, the New Mexico law stands contrary to Californiaโs sweeping ban. The New Mexico law did not prohibit the carrying of firearms into taverns, saloons or restaurants, all of which existed in New Mexico in 1853.
The Ninth Circuit then cites an Oklahoma law from 1890 that โbanned firearms at โany place where intoxicating liquors are sold.โโ First, Oklahoma was a territory in 1890 and did not become a state for another 17 years. Second, the Oklahoma law was passed almost 100 years after the Second Amendment was enacted. The Ninth Circuitโs relying on a territorial law enacted about 100 years after the Second Amendment was enacted is nothing more than judicial defiance of the Supreme Courtโs Bruen decision.
The Ninth Circuitโs final support are laws from two cities (San Antonio and New Orleans) enacted in the 1870s that prohibited the carrying of firearms in bars, โdrinking saloonsโ and taverns. There were thousands of cities in the United States by the 1870s, and two laws from two cities does not create a historical tradition.
The irony of the Ninth Circuitโs decision is that the laws it cites disprove its position. Despite the existence of firearms, bars, taverns and restaurants in the late 1700s to the late 1800s, not a single state specifically sought to prohibit the carrying of firearms into restaurants and taverns. Further, despite the existence of thousands of cities in the United States by the mid-1800s, the Ninth Circuit was only able to point to two cities that prohibited the carrying of firearms into taverns and bars. Finally, the only non-municipal law concerning the carrying of firearms into bars was not passed until 100 years after the Second Amendment was enacted by a territory and not an actual state.
Individuals who believe their Second Amendment rights have been infringed upon can seek redress. Understanding the historical context and legal precedents is crucial to mounting a successful defense of these rights. At The Law Offices of George M. Sanders P.C., we are dedicated to protecting and defending your constitutional rights. Our firm has a deep understanding of the complexities and nuances of Second Amendment law, and we are committed to providing our clients with high-quality representation. Contact us today to schedule a consultation and learn more about how we can assist you in protecting your Second Amendment rights.
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Prior to the Supreme Courtโs decision in New York State Rifle & Pistol Assโn v. Bruen, lower federal courts would balance the right to...