The who, what, and where of gun control

A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

My previous column examined what it means for a gun control measure to fit within “the Nation’s historical tradition of firearm regulation.” This month I want to focus on how the court has analyzed gun regulations that limit (1) who may possess a firearm, (2) what arms people may own or carry, and (3) where they may take them.

Who may keep and bear arms?

As of writing, the court’s latest word on the Second Amendment concerns the “who” of gun control: may the government permissibly restrict the ability of certain types of people to keep and bear arms? The court provided important guidance on that question in the 2024 case of United States v. Rahimi, but significant questions remain open.

The Second Amendment secures to “the people” the right “to keep and bear Arms.” In District of Columbia v. Heller, the court held that “the people” refers “to all members of the political community, not an unspecified subset.” This means that the “plain text” contains no limitation on the right that would permit the government to deprive some category of persons of firearms without meeting its burden to show that the deprivation is consistent with the “Nation’s historical tradition of firearm regulation.”

The court has occasionally used the phrase “law-abiding, responsible citizens” to describe “the class of ordinary citizens who undoubtedly enjoy the Second Amendment right.” Some have inferred that this phrase limits the category of people who may assert a Second Amendment right. The court’s decision in Rahimi made clear that this reading was mistaken. If the government wishes to limit the ability of any “member[ ] of the political community” to keep or bear arms – even those who break the law or might be thought to be irresponsible – it must point to a historical tradition that justifies doing so.

Rahimi recognized a historical tradition that “allows the Government to disarm individuals who present a credible threat to the physical safety of others,” “temporarily.”  And it identified one group of individuals who the government may disarm consistent with that tradition: individuals presently under a restraining order issued upon a finding that the recipient poses “a credible threat to the physical safety” of another.

This term, the court has taken up the “who” question once more. The case of United States v. Hemani requires it to decide whether the same tradition permits the government to disarm individuals who unlawfully use drugs. Several additional “who” questions are in the offing.

First, despite Heller’s holding that the “people” includes “all members of the political community,” and despite the fact that 18-to-20 year-olds are undoubtedly part of the political community (and many shoulder the responsibility to bear arms for that community), some courts have continued to hold that they are not part of the “people” who enjoy a right to keep and bear arms. These courts have therefore rejected challenges to laws restricting adults’ ability to purchase or carry firearms until they reach the age of 21. There is a circuit split on this question, and the  court has been holding several petitions since November. It could be that the court plans to grant, vacate, and remand these cases in light of Hemani, but given that they focus on the meaning of “people” and a different aspect of the historical regulatory tradition, it’s doubtful that Hemani will supply much guidance.

Another significant question is whether the government may disarm felons. A federal statute prohibits “any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm. Justice Amy Coney Barrett is already on record opining that this statute is unconstitutional as applied to individuals convicted of non-violent crimes. (After all, the historical tradition recognized in Rahimi extends only to dangerous individuals.) Several lower courts have agreed.

There is a well-developed circuit split on the question, with many cert petitions currently pending at the court. Still, the justices may opt to wait and see how the lower courts decide cases in the wake of whatever guidance it provides in Hemani. The United States has been selective about seeking the Supreme Court’s review in the felon cases it has lost in the lower courts, largely limiting itself to decisions involving drug use (most likely to be affected by the decision in Hemani). The United States has also argued that the court should await the results of a process it is instituting under a federal statute that allows the government to restore felons’ gun rights as a form of clemency. And the court denied more than a dozen petitions by felons last month. 

What arms may the people keep and bear?

District of Columbia v. Heller, the case that started it all, was a “what” case. It held that “Arms” means “weapons of offence, or armour of defence.” And it recognized a historical tradition of banning “dangerous and unusual” weapons – that is, weapons that are not in “common use” for lawful purposes. Because handguns are in “common use” for lawful purposes like self-defense, Washington, D.C. could not meet its burden to justify its handgun ban.

Just last month, D.C. once again fell short – this time, in trying to justify its ban on magazines capable of holding more than 10 rounds of ammunition. The District of Columbia Court of Appeals (D.C.’s highest court) held that the ban violates the Second Amendment because magazines are bearable arms that are in common use for lawful purposes. In doing so, it split from the U.S. Courts of Appeals for the 1st, 2nd, 7th, 9th, and D.C. Circuits, as well as the Washington Supreme Court, all of which have upheld magazine bans. (The 9th Circuit’s decision received a lot of attention for Judge Lawrence Van Dyke’s video dissent.) Petitions to review the decisions of the 2nd and 9th Circuits and the Washington Supreme Court are currently pending, and the court has relisted all of them.

It would seem to follow inexorably from Heller that outright bans on arms that are in common use for lawful purposes are unconstitutional. (Indeed, the Supreme Court once summarily reversed the Supreme Judicial Court of Massachusetts for failing to follow this straightforward test in a case involving stun guns.) The split on magazine bans is perhaps explicable due to the confusion surrounding magazines’ status as an “arm,” on par with handguns. (Magazines, no less than triggers, are parts of the arm and thus protected.)

Less explicable is the general agreement among lower courts that outright bans on certain semiautomatic rifles (like AR-15s) are permissible. Though no split has yet developed, the court recently recognized that “the AR-15 is the most popular rifle in the country,” and Justice Brett Kavanaugh signaled last year that the court “should and presumably will address the AR-15 issue soon, in the next Term or two.” Several petitions stand ready and waiting.

When the court takes the issue up, the case will enable the court to settle confusion in lower courts about whether the “common use” inquiry occurs at the “plain text” step of its prescribed Second Amendment inquiry (where the rights claimant bears the burden to show that a constitutional right is in play), or, as in Heller, at the “historical tradition” step (where the burden is on the government to show a historical basis for the regulation). The case will also present a good opportunity for the court to explain the “lawful purposes” for which arms may be used. One common refrain in AR-15 cases is that they are not as useful for self-defense, the lawful use (of handguns) on which Heller focused. Leaving aside the truth of that assertion – arms are “used” for self-defense even (perhaps especially) when the owner never discharges them – they are unquestionably useful and used for other lawful purposes, including training with arms in order to stand ready to bear them for the common defense. As law professor Robert Leider has argued, this is a central purpose for which the Second Amendment protected the right.

Where may the people keep and bear arms?

The 2022 case of New York State Rifle & Pistol Association v. Bruen, which gave us the framework courts currently use to adjudicate Second Amendment challenges, was a “where” case. After Heller recognized an individual right to own firearms, Bruen recognized that that right extends outside the home.

Although the court has suggested in dicta that the government may be able to limit where people carry arms – e.g., keeping them out of “sensitive places” like courthouses – it has provided less concrete guidance on the “where” question. That is because the law at issue in Bruen prohibited carrying arms anywhere (without a special showing of need).

The court has taken up another “where” case this term, in Wolford v. Lopez, which concerns a Hawaii law that prohibits carrying firearms on private property held open to the public without the owner’s express permission. Only a few states have enacted such laws (and only recently), having previously relied on carriage limits of the sort invalidated in Bruen. Hawaii’s law is like the one at issue in Bruen in the sense that its effect (especially in combination with extensive “sensitive place” restrictions) is to make it incredibly difficult, if not practically impossible, to carry firearms in public. For that reason, it is not clear that the court’s decision will provide much guidance on more typical “sensitive place” laws like those banning firearms in parks or on public transportation.

Meanwhile, lower court decisions on “sensitive place” laws are all over the map. They uniformly recognize that the government may ban firearms from sensitive places but disagree on what makes a place “sensitive.” Nevertheless, the court has denied both of the “sensitive place” petitions filed so far this term (one about parks, and the other about public transportation).

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Historically, the court’s approach to the Second Amendment has been tentative. The court did not address the Second Amendment for decades after the 1939 case of United States v. Miller (upholding a conviction for transporting unregistered sawed-off shotguns), even as it aggressively enforced other rights. Heller, decided in 2008, was followed two years later by McDonald v. City of Chicago (holding that state and local governments must also respect the right to keep and bear arms), and then by more than a decade of near silence. After Bruen in 2022, and again after Rahimi in 2024, the court sent many cases back to the lower courts for reconsideration in light of those decisions.

Now that the framework is in place, however, the pace may pick up. The court will decide two cases this term, and those decisions may well be narrow: Hemani clarifying the contours of Rahimi’s historical tradition, Wolford reaffirming that Bruen meant what it said. Meanwhile, the court is holding on to numerous petitions on other important Second Amendment issues.

Who? What? Where? We may have answers soon.