Evan Bracewell, MJLST Staffer
In 2024, the Supreme Court released two major opinions related to gun safety laws, United States v. Rahimi and Garland v. Cargill.[1] Rahimi involved what types of people can possess guns.[2] Cargill involved what types of guns (or more accurately gun technology) people can possess.[3] In Cargill, the Supreme Court struck down an ATF rule that banned bump stocks.[4] A bump stock is an attachment added to a gun which uses the momentum of the gun’s kick to bump the gun between the shooter’s shoulder and trigger finger back and forth causing an increased fire rate.[5] To some, this signaled “another example of the [C]ourt’s hostility towards gun regulation in general.”[6] However, one week after Cargill was decided, the Court ruled in favor of a federal gun safety law in U.S. v. Rahimi. In Rahimi, the Court upheld a federal statute that “prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he ‘represents a credible threat to the physical safety of [an] intimate partner,’ or a child of the partner or individual.”[7]
These two cases were the first major rulings on gun safety from the Supreme Court since it established the Bruen framework for handling gun control laws.[8] In New York State Rifle & Pistol Ass’n v. Bruen, the Court held “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[9] This means that for cases where someone is alleging a law has violated a citizen’s Second Amendment rights, in order for the law to survive, judges must find a comparison for the modern law in American regulatory traditions. Following the Bruen framework, uncertainty and confusion spread across the lower courts tasked with applying the historical comparison to modern statutes.[10] Because Cargill concerned an ATF regulation over whether a bump stock fits into the definition of machine guns and was not a Second Amendment challenge, it did not employ the Bruen framework.[11] Rahimi, however, was the Court’s chance to clarify the Bruen test—a chance some say it failed to capitalize on.[12]
The Bruen analysis has received criticism from a wide range of judges.[13] A common issue brought up with Bruen is that it demands judges to be historical researchers and experts and make fact finding on the history of gun control laws.[14] This can result in unpredictable and inconsistent results.[15] Other judges have pointed out that the test may entrench gun laws in the past without any room for modern solutions.[16] The Bruen test has left some judges scratching their heads over history textbooks. When it is combined with the differing outcomes of Cargill and Rahimi, the future of gun laws appears cloudy. On the other hand, it also makes upcoming gun cases potentially incredibly impactful.
Looking ahead, the next significant Supreme Court case on the topic might already be in motion. A petition for certiorari in Bianchi v. Brown has been filed and if granted could be a pivotal decision for gun safety.[17] In Bianchi, the Fourth Circuit recently re-evaluated Maryland’s state law that generally prohibits the sale and possession of assault weapons through a Bruen analysis.[18] The majority decided the law was constitutional because the assault weapons specifically restricted by it are not protected by the Second Amendment and, even if they were, there is a “historical tradition of restricting the use and possession of weapons exceptionally dangerous to civilians.”[19] The Fourth Circuit ultimately upheld a strict gun technology law even in a post-Bruen world.
If the Supreme Court chooses to hear this case, the resulting decision could produce monumental shockwaves for gun laws. Eight other states have adopted assault weapon bans similar to Maryland’s,[20] and an opinion upholding the ban might spark more states to adopt a similar statute. Not to mention, it could demonstrate how the judicial branch may approach a federal ban on assault weapons.[21] The Supreme Court striking down the ban would be a major obstruction to the potential for future strict gun control laws. If the case is heard, hopefully the Supreme Court will use the opportunity to clarify the “labyrinth”[22] that is Bruen which could allow for more predictability in legislating gun technology and safety.
The difference in the rulings of Rahimi and Cargill could be viewed as the Court being more comfortable with laws regulating who can possess guns than rules regulating what gun technology people can possess. Viewing Bianchi through that lens, the Maryland statute may be deemed unconstitutional because it is a ban on guns, not a ban on who can possess guns. However, the Supreme Court could appreciate the Fourth Circuit’s examination of the law under the Bruen framework and comparison to 18th and 19th century regulations of “pistols, bowie knives, brass knuckles, and sand clubs, among other weapons” as excessively dangerous to the public.[23]
Bianchi is not the only case on the horizon for gun laws. “[E]ven if the Court declines to take up the pending [Bianchi v. Brown] petition, it will almost certainly see more petitions soon.”[24] The next major gun technology case will be decided by the Supreme Court this term in Garland v. VanDerStok. That case concerns a “federal rule regulating so-called ‘ghost guns’” which are “untraceable weapons without serial numbers, assembled from components or kits that can be bought online.”[25] Other future gun cases could concern a recently overturned Illinois state law banning certain assault weapons,[26] the minimum age to purchase guns,[27] Connecticut’s ban on assault rifles and large-capacity magazines,[28] or red flag laws that allow a law enforcement agency to temporarily prevent someone deemed an extreme risk from possessing guns.[29]
“Rahimi’s greatest takeaway is likely that the court faces a challenging landscape ahead, which it will have to wade through largely on a case-by-case basis.”[30] The Supreme Court could use a case like Bianchi to clarify the post-Bruen world, bring a sliver of stability to gun laws, and maybe even alleviate the concerns of judges nationwide entrenched in history books.
Notes
[1] United States v. Rahimi, 144 S. Ct. 1889 (2024); Garland v. Cargill, 602 U.S. 406 (2024).
[2] See Rahimi, 144 S. Ct. at 1894.
[3] See Cargill, 602 U.S. at 410.
[4] Id. at 415.
[5] Larry Buchanan et al., What Is a Bump Stock and How Does It Work?, N.Y. Times, https://nyti.ms/43NEi6b (last updated June 14, 2024).
[6] Joel Brown, Supreme Court Strikes Down Ban on Gun Bump Stocks, BU Today (June 14, 2024) https://www.bu.edu/articles/2024/supreme-court-strikes-down-ban-on-gun-bump-stocks/ (quoting Cody Jacobs, a Boston University School of Law lecturer).
[7] Rahimi, 144 S. Ct. at 1894 (referencing 18 U.S.C. § 922(g)(8)).
[8] See Michael McCarthy, Justices’ 1st Post-Bruen Gun Ruling Provides Little Guidance, Law360 (June 28, 2024, 4:41 PM), https://www.law360.com/articles/1852462/justices-1st-post-bruen-gun-ruling-provides-little-guidance.
[9] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2024).
[10] Dave S. Sidhu, Cong. Rsch. Serv., LSB11219, Divided En Banc Federal Appeals Court Rejects Second Amendment Challenge to Maryland’s Ban on “Assault Weapons” 3 (2024) (“Six judges joined the majority opinion in full but wrote separately to highlight the ‘confusion’ that lower courts are experiencing in applying Bruen.”).
[11] Garland v. Cargill, 602 U.S. 406 (2024).
[12] Adam Liptak, Supreme Courtʼs Gun Rulings Leave Baffled Judges Asking for Help, N.Y. Times (Sept. 23, 2024), https://www.nytimes.com/2024/09/23/us/supreme-court-guns-second-amendment.html (“Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, ‘offered little instruction or clarity.’”).
[13] Clara Fong et al., Judges Find Supreme Court’s Bruen Test Unworkable, Brennan Ctr. for Just. (June 26, 2023), https://www.brennancenter.org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable (“In the short time since Bruen was issued, federal judges appointed by Presidents Reagan, Clinton, George W. Bush, Obama, Trump, and Biden have all questioned the opinion.”).
[14] Id.; Liptak, supra note 12 (Quoting Judge Pamela Harris speaking at a conference and describing the issue of receiving two competing briefs where one says something happened in history and the other claims it did not happen).
[15] United States v. Bartucci, 658 F. Supp. 3d 794, 800 (2023) (“In the short time post-Bruen, this has caused disarray among the lower courts when applying the new framework.”).
[16] See Worth v. Harrington, 666 F. Supp. 3d 902, 926 (2023) (“Second Amendment jurisprudence now focuses a lens entirely on the choices made in a very different time, by a very different American people.”); Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3 (“More broadly, the six judges cautioned that overemphasizing the importance of historical analogues may ‘fossilize’ modern legislative attempts and ‘paralyze’ democratic efforts.”).
[17] Andrew Willinger, An Update on Challenges to State Assault Weapon and Magazine Bans, Duke Ctr. for Firearms L. (Nov. 6, 2024), https://firearmslaw.duke.edu/2024/11/an-update-on-challenges-to-state-assault-weapon-and-magazine-bans. It should be noted that the case will be re-named Snope v. Brown if the Supreme Court decides to hear it but Bianchi is used throughout this blog post to avoid confusion.
[18] Bianchi v. Brown, 111 F.4th 438, 442 (4th Cir. 2024) (en banc) (referencing Md. Code Ann., Crim. Law § 4-303 (West 2018)) (“The statute defines ‘assault weapon’ as ‘(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon.’”).
[19] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.
[20]Which States Prohibit Assault Weapons?, Everytown Rsch. & Pol’y, https://everytownresearch.org/rankings/law/assault-weapons-prohibited/ (last updated Jan. 4, 2024).
[21] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 4. (“Judicial evaluations of similar state bans, like Maryland’s, under the Second Amendment may provide an indication of how a federal ban could fare in the courts.”).
[22] Bianchi, 111 F.4th at 473–74 (Diaz, C.J., concurring) (“Bruen has proven to be a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”).
[23] Dave S. Sidhu, Cong. Rsch. Serv., supra note 10, at 3.
[24] Willinger, supra note 17. The Court remanded several cases after Rahimi that could eventually make their way back to the Supreme Court. These cases involve prohibitions on gun possession by certain nonviolent offenders of crimes, certain drug users, and certain people with felony convictions. Dave S. Sidhu, Cong. Rsch. Serv., LSB1108, The Second Amendment at the Supreme Court: Challenges to Federal Gun Laws 2–4 (2024).
[25] Amy Howe, Court Likely to Let Biden’s “Ghost Gun” Regulation Stand, SCOTUSblog (Oct. 8, 2024, 5:07 PM), https://www.scotusblog.com/2024/10/court-likely-to-let-bidens-ghost-gun-regulation-stand/.
[26] Lauren Berg, Ill. Assault Rifle Ban Struck As Unconstitutional, AG To Appeal, Law360 (Nov. 8, 2024, 11:44 PM), https://www.law360.com/articles/2259026/ill-assault-rifle-ban-struck-as-unconstitutional-ag-to-appeal.
[27] Daniel Ducassi, 10th Circ. Backs Colorado Age Limits For Gun Buyers, Law360 (Nov. 6, 2024, 10:43 PM), https://www.law360.com/articles/2257228/10th-circ-backs-colorado-age-limits-for-gun-buyers.
[28] Aaron Keller & Brian Steele, 2nd Circ. Scrutinizes Conn. Restrictions On AR-15s, Law360 (Oct. 16, 2024, 8:39 PM), https://www.law360.co.uk/articles/1890635/2nd-circ-scrutinizes-conn-restrictions-on-ar-15s.
[29] George Woolston, Attorney Says NJ Red Flag Law Violates 2nd Amendment, Law360 (Oct. 28, 2024, 4:57 PM), https://www.law360.com/pulse/articles/2252661/attorney-says-nj-red-flag-law-violates-2nd-amendment.
[30] McCarthy, supra note 8.