The Supreme Court’s decisions in District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association Inc. v. Bruen (2022) were major inflection points for Second Amendment jurisprudence, according to national legal experts. The courts may soon be grappling again with an important doctrinal shift in the pending case United States v. Rahimi, which the Supreme Court will decide this term.
At the ABA Midyear Meeting in Louisville, Kentucky, the Section of State and Local Government Law will present the program, “The Past and Future of the Right to Keep and Bear Arms,” on Friday, Feb. 2. Darrell Miller, the Melvin G. Shimm Distinguished Professor of Law at Duke University School of Law, and Andrew Willinger, executive director of the Duke Center for Firearms Law, will discuss the Supreme Court’s major Second Amendment precedents, the Rahimi case and how the Second Amendment interacts with various federal, state and local gun regulations.
Willinger said the panel will trace the history of the Second Amendment from Heller to Bruen, explain Bruen’s historically focused approach and how courts are applying that test, and consider “what the outcome of the Rahimi decision and the following years will look like.”
The session is part of the Duke Center for Firearms Law’s public-facing mission. The center was launched in 2019 to assist in the development of firearms law as a scholarly field and to serve as a balanced, reliable resource on the topic for lawyers and the interested public. In addition to conducting programming at Duke and around the country, the center publishes a blog with coverage of major decisions and developments in the field and maintains the Repository of Historical Gun Laws.
In Heller, the Supreme Court found, in a 5-4 decision, that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense in the home, unrelated to the individual’s participation in an organized militia. Fourteen years later, in a 6-3 decision in Bruen, the court struck down New York’s 100-year-old concealed carry licensing law after finding that the law was inconsistent with the American historical tradition of gun regulation. Bruen placed many “previously settled gun laws in jeopardy by significantly changing the way courts must evaluate Second Amendment cases,” according to the Johns Hopkins Center for Gun Violence Solutions.
Since Bruen was decided in June 2022, lower courts have struck down a wide range of modern gun laws including age restrictions, assault weapons bans and laws prohibiting gun possession by felons and those subject to domestic violence restraining orders. In Rahimi, the court will decide whether a federal law prohibiting the possession of firearms by people subject to domestic violence protection orders is constitutional. The 5th Circuit Court of Appeals invalidated the law, finding that historical regulations from around the time of the country’s founding were not sufficiently similar.
Miller emphasized the timeliness of the Feb. 2 panel. “We are excited to be discussing these issues, especially as the Supreme Court is poised to release its decision in Rahimi in the coming months and potentially clarify broader methodological questions for future Second Amendment cases.”