The current state of Second Amendment jurisprudence is widely seen as problematic, with significant confusion pervading the legal landscape. This stems from a notable lack of clarity in Supreme Court decisions, which is particularly visible in United States v. Rahimi, where Justice Ketanji Brown Jackson highlighted the struggles of lower courts in interpreting Second Amendment precedents.
Historically, from 1791 until 2008, the Supreme Court did not significantly alter federal, state, or local gun regulations. The pivotal change came with the 2008 decision in District of Columbia v. Heller, where the Court struck down a District of Columbia ordinance on handgun ownership. Justice Scalia’s majority opinion, while acknowledging gun rights, also noted the limitations that could be imposed on these rights, such as prohibiting gun possession by felons or restricting firearms in sensitive areas like schools.
Further confusion arose after the New York State Rifle and Pistol Association v. Bruen decision. The Court rejected levels of scrutiny typically used in other constitutional rights cases, like intermediate and strict scrutiny, in favor of a historical tradition test. Justice Thomas emphasized an historical perspective, stating that laws regulating firearms must align with the nation’s historical traditions. This raises complex questions about how historical practice can be applied to modern regulations and challenges.
The decisions post-Bruen have added to the judicial confusion. The Bruen case generated a multitude of legal challenges to existing regulations. In Rahimi, though the historical approach was reaffirmed, the Court did not clarify how it should be applied, resulting in divergent interpretations by lower courts.
This term, the Supreme Court is hearing more Second Amendment cases, such as Wolford v. Lopez and United States v. Hemani, which could exacerbate existing confusions. In Wolford, the focus is on whether a Hawaii law requiring express permission for concealed carry in private businesses violates the Second Amendment. The Court’s conservative majority appears poised to strike down the law, further complicating the interpretation of gun rights versus property rights.
The root of the confusion is the historical focus adopted by Bruen. The Court’s approach seems to conflate the existence of a Second Amendment right with the government’s ability to justify infringements on that right. Other areas of constitutional law ordinarily employ levels of scrutiny to determine justification, raising the question of whether a more conventional approach using such scrutiny could provide the needed clarity. In cases involving fundamental rights, including those concerning firearms, focusing on whether there is a compelling government purpose and exploring less restrictive means could simplify the jurisprudence of the Second Amendment.
For further insight, read the full analysis on SCOTUSblog.