The past three years have seen major developments in gun policy, gun rights and gun regulation, Second Amendment experts said during the ABA Midyear Meeting in Louisville, Kentucky.
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, discussed ramifications of the Supreme Court’s decisions in District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association Inc. v. Bruen (2022). They also addressed the potential outcome of the pending case United States v. Rahimi, involving guns and domestic violence, which the Supreme Court will decide this term.
The panelists spoke during the “The Past and Future of the Right to Keep and Bear Arms” program, sponsored by the ABA Section of State and Local Government Law.
“This is a particularly important time to be having this discussion,” Willinger said. “We have seen a series of horrific mass shootings, the highest number of gun deaths that the CDC has ever recorded, a huge spike in gun ownership that coincided roughly with the COVID pandemic and also the passage of the first major piece of federal gun legislation in nearly 30 years, the Bipartisan Safer Communities Act.”
The Supreme Court also issued its decision in Bruen in June 2022 – the first major Supreme Court Second Amendment decision in over a decade, Willinger said. “Bruen revolutionized constitutional doctrine. It upended a lot of what was previously considered to be a relatively settled consensus about the constitutionality of various types of gun regulation.”
Since Bruen, lower courts have struck down a wide range of modern gun laws including prohibitions on guns in mass transit, guns in post offices, guns with obliterated serial numbers and gun possession by certain felons, Willinger said.
Miller said that, between Heller and Bruen, there were more than 1,000 Second Amendment challenges to gun regulations that generally upheld “many of the tools available to policymakers to combat gun violence.”
Miller said the Supreme Court’s decision in Bruen threw out a two-part framework previously used by the lower courts to analyze Second Amendment law and instead directed courts to draw analogies from history. “It creates a test where the outcomes are not only unpredictable but they are in some ways counterintuitive,” he said.
In addition to Rahimi, the Supreme Court has several other pending petitions for certiorari in Second Amendment cases, Willinger said. Other major issues, including Second Amendment challenges to state assault weapon bans, may go up to the court in the coming years, he added, especially if the appellate courts issue conflicting decisions.
“The Supreme Court isn’t done, by any stretch, shaping its Second Amendment doctrine,” Willinger said.