Federal Corner: Implications of Bruen for Criminal Defense Practitioners


If you think that constitutional defenses to firearm possession crimes are definitively settled against your client, think again. The Supreme Court changed the game with its recent opinion in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), making Fifth Circuit precedent upholding the constitutionality of firearm regulations ripe for re‑examination. And yes, I’m even talking about 18 U.S.C. § 922.

In Bruen, the Court struck down New York’s licensing regime for the public carry of firearms, which required an applicant to demonstrate a “special need for self‑defense,” as violative of the Second Amendment. 142 Ct. at 2122. But the Court’s reasoning implicates far more than New York’s licensing scheme.

First and most importantly, the Court jettisoned “means‑end scrutiny in the Second Amendment context.” Id. at 2127. “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 2126. “To justify its regulation, the government may not simply posit that the regulation promotes an important interest.” Id. “Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. Otherwise, “the Second Amendment’s ‘unqualified command’” controls. Id. (quoting Konigsberg v. State Bar of California, 366 U.S. 36, 49 n.10 (1961)). In so holding, Bruen directly abrogated the Fifth Circuit’s analytical framework for Second Amendment challenges, which had endorsed this precise method of means‑end scrutiny. See Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 195–98 (5th Cir. 2012). Consequently, Bruen also calls into question numerous precedents and other opinions such as:

  • United States McGinnis, 956 F.3d 747, 756 (5th Cir. 2020) (“We need not and do not resolve” whether “the conduct burdened by § 922(g)(8) falls within the Second Amendment right” be‑ cause “§ 922(g)(8) is reasonably adapted” to the government’s interest in “reducing domestic gun abuse”); Mance v. Sessions, 896 F.3d 699, 701–04 (5th Cir. 2018) (even if 18 U.S.C. §§ 922(a)(3) & (b)(3), which prohibit the interstate transfer of handguns, “are not longstanding regulatory measures and are not presumptively lawful regulatory measures,” they are nonetheless constitutional because they “withstand strict scrutiny”);
  • Bezet United States, 714 F. App’x 336, 341 (5th Cir. 2017) (regardless of whether “a desire to obtain weapons that are part of the ordinary military equipment” “sweeps in firearms that are protected by the Second Amendment,” 18 U.S.C. § 922(l) & (r) are constitutional because “they do not substantially burden the core Second Amendment guarantee of acquiring firearms to protect one’s hearth and home,” “trigger only intermediate scrutiny,” and are a “reasonable fit” for achieving “important government objectives, such as cutting off weapons to criminals.”);
  • United States v. Massey, 849 F.3d 262, 265 (5th Cir. 2017) (“The Second Amendment frame‑ work adopted in [NRA] precludes this panel from reexamining . . . the constitutionality of Section 922(g).”); and
  • United States v. May, 538 F. App’x 465, 466 (5th Cir. 2013) (citing to NRA as precedent that precludes constitutional challenge to 18 S.C. 922(g)(3)).

Second, Bruen built on the watershed Second Amendment case that preceded it, District of Columbia v. Heller, 554 U.S. 570 (2008), by holding that “the right of an ordinary, law‑abiding citizen to possess a handgun in the home for self‑defense” extended to carrying “a handgun for self‑defense outside the home.Bruen, 142 S. Ct. at 2122 (emphasis added). Thus, in cases involving the public carry of a firearm, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127. “Courts are… entitled to decide a case based on the historical record compiled by the parties,” id. at 2130 n.6, and they are “not obliged to sift the historical materials for evidence to sustain” a statute, id. at 2150. Thus “the burden rests with the government”—not with the defense, and not with the court—“to establish the relevant tradition of regulation.” Id. at 2149 n.25.

Third, “to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding,” Bruen distinguished between “general societal problem[s] that ha[ve] persisted since the 18th century,” id. at 21341, and “unprecedented societal concerns or dramatic technological changes” prompting “modern regulations that were unimaginable at the founding,” id. at 2132. Evidence that regulations addressing the former will not pass constitutional muster include:

  • A “lack of a distinctly similar historical regulation addressing that problem;”
  • Efforts to address “the societal problem” “through materially different means”; or
  • Attempts “to enact analogous regulations” that “were rejected on constitutional grounds[.]”

Id. at 2131. For the latter, Bruen adopted a “nuanced” test whereby a modern regulation must be “relevantly similar” to a historical analogue to conform with the Second Amendment. Id. at 2132. The majority declined to “provide an exhaustive survey of the features that render regulations relevantly similar,” id., but explicitly noted “how and why the regulations burden a law‑abiding citizen’s right to armed self‑defense” as “central” “metrics,” id. at 2133.

Fourth, establishing a relevant tradition of regulation via proper historical analogues may prove to be a taxing task. “On the one hand, courts should not uphold every modern law that remotely resembles a historical analogue, because doing so risk[s] endorsing outliers that our ancestors would never have accepted.” Id. “On the other hand, analogical reasoning requires only that the government identify a well‑established and representative historical analogue, not a historical twin” or a “dead ringer.” Id. This spectrum offers “little explanation of how stringently” to apply the historical analogue test, id. at 2179 (Breyer, J., dissenting), but Bruen’s analysis makes one thing clear: several pitfalls exist for the government here. “The Court’s historical analysis in this case is over 30 pages long and reviews numerous original sources from over 600 years of English and American history.” Id. at 2179 (Breyer, J., dissenting). Yet:

In each instance, the Court finds a reason to discount the historical evidence’s persuasive force. Some of the laws [the government] has identified are too old. But others are too recent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in historically unique circumstances. And some are not sufficiently analogous to the licensing regime at issue here.

Id. at 2190. In the case of ambiguous historical sources, the majority even endorsed a default interpretation favoring possessors over the government. See id. at 2141 n.11 (“To the extent there are multiple plausible interpretations” of a historical source, “we will favor the one that is more consistent with the Second Amendment’s command.”).

Finally, a word about 18 U.S.C. § 922. According to Bruen, “the language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted.” Id. at 2139. For that reason, Bruen anointed “history [b]etween the [Stuart] Restoration [in 1660] and the Glorious Revolution [in 1688]” as “particularly instructive.” Id. at 2140. Certainly “when it contradicts earlier evidence,” “late‑19th‑century evidence cannot provide much insight into the meaning of the Second Amendment.” Id. at 2154 (emphasis added); see also id. at 2154 n.28 (refusing to consider “20th‑century historical evidence” for the same reason). Given this backdrop, Bruen notably did not repeat Heller’s disclaimer that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–27. Bruen only “assume[d] it settled” that “legislative assemblies, polling places, and courthouses” were “‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment,” remaining silent on Heller’s other presumptively lawful restrictions. Id. at 2133 (2022). See also id. at 2156 (“The Second Amendment guaranteed . . . the right to bear commonly used arms in public subject to certain reasonable, well‑defined restrictions” such as limiting “the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials.”). This omission apparently concerned Justice Alito and Justice Kavanaugh (joined by Chief Justice Roberts) sufficiently to prompt their concurrences, which specifically noted that Bruen did not invalidate 18 U.S.C. § 922 restrictions. See id. at 2157–58, 2162. But “prohibitions on the possession of firearms by felons and the mentally ill [and] laws imposing conditions and qualifications on the commercial sale of arms have their origins in the 20th century.” Id. at 2189 (Breyer, J., dissenting) (quoting C. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L. J. 1371, 1374–1379 (2009)). And “[f]ounding‑era legislatures did not strip felons of the right to bear arms simply because of their status as felons.” Id. (quoting Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting)). Thus, “the disconnect between Heller’s treatment of laws prohibiting, for example, firearms possession by felons or the mentally ill,” and Bruen’s “treatment of New York’s licensing regime” is “hard to square.” Id.

In sum, practitioners should be on high alert to Bruen’s application to a wide range of firearm‑related provisions, including 18 U.S.C. § 922. Already on August 30, 2022, in United States v. Rahimi, No. 21‑11001, the Fifth Circuit heard oral argument concerning Bruen and its impact on the constitutionality of 18 U.S.C. § 922(g) (8). Rahimi likely represents just the beginning of a slew of renewed and reinvigorated constitutional defenses to firearm possession crimes, which finally may prove successful post‑Bruen.

Gabriela Vega
Gabriela Vega
Gabriela Vega is an Assistant Federal Public Defender in the Northern District of Texas and works in the Dallas division. She graduated from Harvard Law School in May
2012 and joined the FPD’s office in November 2017. She currently handles a mixed docket of trial and appeal cases.
She can be reached at .

Gabriela Vega is an Assistant Federal Public Defender in the Northern District of Texas and works in the Dallas division. She graduated from Harvard Law School in May
2012 and joined the FPD’s office in November 2017. She currently handles a mixed docket of trial and appeal cases.
She can be reached at .

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