During its last term, the U.S. Supreme Court issued a number of important decisions, including N.Y. State Rifle & Pistol Ass’n v. Bruen. The Court held in Bruen that the Second Amendment protects a person’s right to bear arms in public for self-defense, not just in one’s home. Perhaps more importantly, the Court enunciated the standard by which Second Amendment claims will be evaluated going forward. Referred to by many as the “text plus history” standard, it calls for courts to first determine whether the plain text of the Second Amendment covers the defendant’s conduct.

If it does, courts must next decide whether the restriction implicated by the defendant’s conduct complies with the historical understanding of the Second Amendment. This inquiry can be handled by answering one of two questions: (1) does the law at issue address a general societal problem that has persisted since the 1700s, when the Second Amendment was adopted; or (2) is there a historical analogue to the law. In other words, was there a regulation in effect in 1791, when the Second Amendment was adopted, that was comparable to the modern regulation at issue.

Bruen’s text plus history standard allows practitioners the opportunity to look anew at firearm regulations we have long believed to be valid. Thankfully, we need not reinvent the wheel to do this. A great example of an opinion recently handed down that applies the new standard is U.S. v. Quiroz.

In Quiroz, decided on September 19, 2022, the Western District of Texas analyzed the validity of 18 U.S.C. s. 922(n), which prohibits a person under federal indictment from receiving a firearm. After holding that receipt of a firearm (i.e., possession of a firearm) does implicate the Second Amendment, the court next turned to whether the prohibition was consistent with the Second Amendment’s historical understanding.

The court first detailed the legislative history of Section 922(n), which began in 1938. Next, the court discussed the restrictions in place before and after the Second Amendment was adopted. The court held that no historical analogue existed for prohibiting people merely indicted for a crime from possessing a firearm. Thus, the court declared Section 922(n) was unconstitutional on its face.

The Court’s decision in Bruen should encourage criminal defense practitioners to revisit the validity of state gun laws. The new standard for evaluating firearm laws requires us to become quasi-experts in the history of firearm regulations in this country. A good place to start is by looking at how courts thus far have applied the new standard. These decisions and related articles can be found here.