by Douglas A. Berman

This content was originally published on sentencing.typepad.com, as three distinct blog postings on June 23 and 24, 2022, and included several embedded hyperlinks to research referenced. The posts have been combined and reprinted here with permission.

On June 23, The Supreme Court handed down its much-anticipated Second Amendment ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843 (S. Ct. 2022).  Here is how Justice Thomas’s opinion for the Court gets started:

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Because the Supreme Court’s opinion in Bruen expressly rejects lots of recent lower court rulings regarding the application of the Second Amendment, the ruling prompts new questions as to whether various categorical prohibitions on gun possession are lawful.  In particular, broad felon-in-possession criminal statutes may be constitutionally suspect after Bruen.

Lower courts have largely upheld felon-in-possession criminal prohibitions even since Heller decided the Second Amendment provided for an individual right. But Part II of the Court’s opinion in Bruen rejects much lower-court jurisprudence since Heller and creates a new textual and historical approach for the consideration of Second Amendment claims:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. 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.”...

Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms....

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.

American citizens with felony records are surely part of “the people” covered by the plain text of the Second Amendment, and so their conduct in possessing firearms would seem presumptively protected. Turning then to “the Nation’s historical tradition,” various academic articles have detailed that only dangerous and violent people, not all felons, were historically disallowed to have firearms. As one article puts it: “there is no historical justification for completely and forever depriving peaceable citizens—even nonviolent felons—of the right to keep and bear arms.” 

 But one need not take an academic’s word for this notion that there is not historical tradition for dispossessing all felons. Then-Judge, now Justice Amy Coney Barrett made this point quite effectively when dissenting in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). Here is the start of her lengthy dissent in a case upholding application of the federal felon-in-possession ban to a nonviolent felon:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Notably, the Bruen opinion for the Court makes repeated reference to the petitioners as “law-abiding” individuals. But I am not sure that dicta alone could or should undermine what the Second Amendment’s plain text and historical tradition now seem to suggest, namely that governments are on shaky constitutional ground if and whenever they seek to criminalize gun possession by nonviolent (or non-dangerous) persons with criminal records.

Because the broad federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is applied many thousands of times each year, I would expect lots of new litigation as to whether and when felon dispossession is  “consistent with this Nation’s historical tradition of firearm regulation.”

Another notably broad provision of federal firearms law is 18 U.S.C. § 922(g)(3), which categorically criminalizes any gun possession by anyone who is an “unlawful user of or addicted to any controlled substance.” In an era in which marijuana is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal “unlawful user” gun dispossession statute technically dispossess tens of millions of Americans. As a matter of policy and practice, I sense very few people actually are federally prosecuted and sentenced under 922(g)(3), but it certainly happens sometimes.

Notably, more than a few states also have laws criminalizing gun possession by those with drug use history even for users of legal drugs (including alcohol). As one notable example, Ohio Revised Code § 2923.13 prohibits knowingly having any firearm if one “is drug dependent, in danger of drug dependence, or a chronic alcoholic.” Arguably, anyone prescribed and using OxyContin is “in danger of drug dependence,” though again I do not think these kinds of laws in Ohio (or in other states) tend to be broadly enforced. Still, these laws probably do get used as a basis refuse to issues some firearm licenses. 

Whatever the policy or practical virtues or vices of broad drug user gun dispossession laws, their constitutional status would seem subject to new questions after Bruen. The federal firearm prohibition for anyone who is an “unlawful user of or addicted to any controlled substance” has been upheld through various balancing tests in lower courts stressing the important government interest in restricting gun access to potentially dangerous individuals. But, thanks to Bruen, such a regulation’s “important interest” is not what is key for Second Amendment interpretation, “rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

I am not legal historian, but I know there were very few criminal prohibitions on drug use at the time of the ratification of the Second Amendment. Notably, there were some localities and even a state (Maine) embracing alcohol prohibition before and into the Civil War era, but I have no sense of how various early temperance laws may have interacted with gun regulations at that time. I do surmise, from reading then-Judge Amy Coney Barrett’s dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that history suggests “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” Perhaps broad drug user gun dispossession statutes could be justified on that ground, but I have a hard time viewing modern users of medical marijuana analogous to those groups considered categorically dangerous in the founding era.

As suggested before, I expect to see a lot more litigation over broad felon-in-possession criminal laws than over broad drug user gun dispossession statutes. Nevertheless, I think this is another interesting area of Second Amendment law that seemed reasonably settled before Bruen and now may be up for new (historical) debate. 

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