Spring 2023 Update on the Constitutionality of Gun Laws

Last fall, I wrote a post about the litigation over the constitutionality of various firearms restrictions in the wake of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). Recall that in Bruen, the Supreme Court announced a new interpretive approach for Second Amendment claims: courts must determine whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Litigants have subsequently come forward with numerous challenges to gun laws, and courts have struggled with how to apply the new test. As detailed below, the Fifth Circuit recently issued a major federal appellate case decided under the Bruen framework, and we are awaiting another from the Third Circuit on an even more important issue. Where we were a few months ago. As my prior post explains, federal district court judges have struck down multiple federal gun laws, including 18 U.S.C. § 922(g)(8) (people subject to DVPOs cannot possess guns), 18 U.S.C. § 922(k) (unlawful to possess guns with obliterated serial numbers), and 18 U.S.C. § 922(n) (no guns for people under felony indictment). Other courts have come out other ways, and there is no consensus on these points. Meanwhile, other judges have struck down certain state laws, including a recently-enacted and far-reaching New York law that sought to restrict concealed carry in a range of purportedly sensitive locations. If anything, the controversy over the scope of Second Amendment rights has intensified since then. Fifth Circuit strikes down 18 U.S.C. § [...]