
In 1969, the rock band Jethro Tull charted a memorable hit titled “A New Day Yesterday.” In the third verse, singer and songwriter Ian Anderson intoned, “Spent a long time looking/For a game to play/My luck should be so bad now/to turn out this way/O! I had to leave today/just when I thought I'd found you/It was a new day yesterday/but it's an old day now.” ("A New Day Yesterday" by Jethro Tull, STAND UP ©Ian Anderson Music Ltd., GEMA) Second amendment jurisprudence was likely the last thing the British rockers could have had in mind when they recorded this classic, yet in the wake of the U.S. Supreme Court’s most current treatment of the Second Amendment in New York State Rifle & Pistol Association, Inc. v. Bruen , many U.S. Courts of Appeal may well be singing along to that melancholy refrain, as the intermediate-scrutiny standard most federal appellate courts have applied in Second Amendment cases for more than a decade was roundly rejected by the Supreme Court. Under the new standard of review clearly enunciated in Bruen, the standard to be applied in reviewing state regulations affecting Second Amendment rights have been restored to what appears to have been the prevailing standard in the late nineteenth century.
Justice Thomas delivered the opinion of the Court in Bruen, which dealt with an appeal from the U.S. Court of Appeals for the Second Circuit in a case challenging the State of New York’s licensing regime for the carrying of firearms outside the home. Under that regime, an individual who wished to obtain a license to carry a firearm outside his home was required to meet both an objective and a subjective standard. First, the applicant was required to demonstrate that he was of good moral character, had no criminal history, no history of mental illness, that “no good cause exists” for denying the license, and that “proper cause existed” to issue the license. While the first four criteria were objective in nature, the final criterion – “proper cause to issue” – was subjective, lying within the discretion of the licensing official. New York State Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. ___ (June 23, 2022), slip op. at 3. The subjective element of New York’s statute – the “proper cause” requirement – placed New York among a group of only six states to have adopted such a subjective standard; the great majority of states, forty-three in number, apply a purely objective standard to the issuance of concealed-carry licenses. See id. at 4-5. Under New York’s statutory scheme, whenever “a licensing official denie[d] an application, judicial review [was] limited.” Id. at 4.
The petitioners in Bruen were the New York State Rifle and Pistol Association (NYSRA), on behalf of its members Brandon Koch and Robert Nash. Both Koch and Nash had applied for licenses to carry a handgun outside their homes for the purpose of self-defense. While each of them had satisfied the objective elements of New York’s licensing requirements, both had been denied licenses under the “proper cause” provision on the ground that neither of them had shown “special need” for such armed self-defense, beyond a general desire to protect their personal safety. See id. at 6-7. NYSRA then sued the state’s agents involved in denying Koch’s and Nash’s applications, on the ground that the subjective element to the licensing regime violated their Second Amendment rights. The U.S. District Court found in favor of the state and, on appeal, the Second Circuit affirmed the district court’s decision.
The Supreme Court noted that like many federal appellate courts in the last dozen years, the Second Circuit had adopted and applied a “two-step” standard of review for Second Amendment cases which combined a historical review with a means-end review. See id. at 8. Under the first step of that analysis, “the government may justify its regulation by ‘establishing that the challenged law regulates activity falling outside the scope of the [constitutional] right as originally understood.’” Id. at 9, quoting Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019). The reviewing court then “ascertain[s] the original scope of the right based on its historical meaning. If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, ‘then the analysis can stop there; the regulated activity is categorically unprotected.’” Id., quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). “But if the historical evidence at this step is ‘inconclusive or suggests that the regulated activity is not categorically unprotected,’ the courts generally proceed to step two.” Id., quoting Kanter, 919 F.3d at 441.
The second step then entails analyzing “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” Id. (int’l punct. & cit. omit’d). The majority of the appellate courts have held that “the core Second Amendment right is limited to self-defense in the home.” Id., citing Gould v. Morgan, 907 F.3d 659, 671 (1st Cir. 2018). Only if that core right – self-defense within one’s home – is affected by the regulation would the court apply a strict-scrutiny review, requiring the government to show that the regulation was “narrowly tailored to achieve a compelling governmental interest.” Id., citing Kolbe v. Hogan, 894 F.3d 114, 133 (4th Cir. 2017). “Otherwise, [courts] apply intermediate scrutiny and consider whether the [g]overnment can show that the regulation is ‘substantially related to the achievement of an important governmental interest.’” Id. at 10, quoting Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012).
In Bruen, the Supreme Court rejected the second step of this two-step analysis, as well as the limitation of Second Amendment rights to a citizen’s home, holding that the means-end analysis was inconsistent with the Court’s controlling precedents in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010). See Bruen, 597 U.S. __, slip op. at 10. Heller and McDonald did 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.” Id. In short, Bruen trimmed the widespread two-step analysis down to its first step and, in so doing, elevated the standard of review in Second Amendment cases to strict scrutiny whenever the regulated activity falls within the historical bounds of the Second Amendment right.
A key element of the historical review required under Bruen is ascertaining whether the regulation at issue “burden[s] a law-abiding citizen’s right to armed self-defense.” Id. at 20. “[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry” based upon historical precedent. Id. (orig’l ital. omit’d). In performing that analysis upon the record before it, the Court cited the parties’ respective arguments tracing the history of weapons regulation in England and her colonies from the late Middle Ages up to the early 20th century. Based upon that extended historical analysis, the Court found a historical, legal consensus that the government “could not ban public carry [of weapons] altogether.” Id. at 44 (orig’l ital.) And weapons falling within the category of the constitutionally protected right to “keep and bear arms” generally have been those “in common use” for self-defense. Id. at 23. In Bruen, the Court did not have to make a determination as to whether handguns are commonly used for self-defense, as all parties agreed that they are. See id. Only weapons not in common use for self-defense would thus fall outside the historical scope of the Second Amendment’s protection. See id.
Based on its analysis, the Supreme Court held that New York had failed to show that the activity being regulated under its licensing regime – the public carry of handguns outside the home for the purpose of self-defense – fell outside the scope of the Second Amendment right to keep and bear arms as that right was originally understood. As the State had met neither that burden nor managed to demonstrate that its regulation was narrowly tailored to achieve a compelling governmental interest, the “proper cause” element of the state’s licensing regime violated the Constitution and was unenforceable. See id. at 63.
Bruen’s holding likely means a wholesale upheaval in the federal courts’ Second Amendment jurisprudence dating back more than a decade to Heller and McDonald. To draw just one example, the Fourth Circuit is among the majority of appellate courts that have applied the two-step, “means-end” analysis which Bruen soundly rejected. In a notable case from just six years ago, Kolbe v. Hogan, the Fourth Circuit applied that now-defunct analysis in considering a challenge to the State of Maryland’s ban on a wide range of commonly owned semi-automatic rifles and shotguns, including AR15s. See 849 F.3d 114, 132 (4th Cir. 2016). Kolbe, which upheld the constitutionality of Maryland’s weapons ban, now appears subject to challenge under Bruen on at least two grounds: (1) Kolbe’s conclusion that the types of weapons at issue were not protected by the Second Amendment because they were “most useful in military service” may well be ill-founded, based upon Bruen’s emphasis that the core of the Second Amendment right goes to how commonly used for self-defense a type of weapon is; and (2) because the Fourth Circuit only required Maryland to show that it had a substantial interest in regulating the ownership of the weapons at issue under the second prong of the now-rejected two-step “means-end” analysis, rather than a compelling interest which the regulation at issue was narrowly tailored to accomplish. See id. at 134-35; id. at 144-45. Kolbe is but one of dozens of heretofore binding legal precedents that may be put out to posture in the wake of Bruen.
Bruen, therefore, might fairly be viewed as a once-in-a-generation reset to how a fundamental civil right recognized under the Constitution is understood and applied. In that respect, Bruen takes Americans’ understanding and enjoyment of their Second Amendment rights back to a point closer in time to the founding, a time preceding the growth of the modern regulatory state. In that sense, post-Bruen America – and her federal judges, in particular – might well look upon the last ten years of Second Amendment jurisprudence as a “new day yesterday,” eclipsed by an “old day” now.
If you have questions on this point or others, please do not hesitate to contact Kevin Streit (kstreit@setlifflaw.com) at 804-377-1270, or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.
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