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LawTalk features events, webinars, and panel discussions hosted at the University of Minnesota Law School.
Welcome to LawTalk, a podcast series produced by the University of Minnesota Law School featuring events, webinars, and panel discussions about diverse topics at the intersection of law, policy, and education.
This episode, The Evolving Second Amendment: Bruen and This Term�s Supreme Court, features Professor Megan Walsh, the Director of Minnesota Law's Gun Violence Prevention Clinic. Walsh leads this program that helps explain the Bruen framework and the Supreme Court's two major Second Amendment decisions from this term: Wolford v. Lopez, which addresses restrictions on licensed carry on private property open to the public, and United� States v. Hemani, deciding the constitutionality of the federal prohibition on firearm possession by unlawful drug users.
This event was recorded on July 14, 2026. You can watch the entire event recording on the Minnesota Law YouTube channel.
Devin Driscoll: Welcome all, and thank you for joining us for today's CLE. On behalf of the Board of Advisors Academic Engagement Committee, of which I am the chair, I want to thank you for attending. My name is Devin Driscoll. We're glad you're here and hope this is a valuable resource for you both in building your Minnesota law network and for your professional development.
In today's CLE, Professor Megan Walsh will give a practical update on evolving Second Amendment law. First, the requisite housekeeping notes. This CLE is being recorded, and the link to the recording will be shared after the CLE. We'll make sure to leave time for questions at the end of the panel. Please drop any questions you have into the Q&A box, and we will answer them at the end of the session. One standard CLE credit has been requested, and we will put the number for that in the chat. We're also adding a link in the chat at some point for you to sign up and receive the Gun Violence Prevention Clinic's newsletter if you'd like to stay up to date with their work. With that, let's meet our presenters.
Professor Megan Walsh is a visiting assistant professor of law and the director of the University of Minnesota Law School Gun Violence Prevention Law Clinic. Prior to joining the faculty, Professor Walsh was an attorney at Everytown Law, where she worked on Second Amendment litigation, defending governmental firearm regulations, and she represented survivors in cities in litigation to advance gun violence prevention through the court system.
Prior to her work at Everytown, she litigated complex civil litigation cases as a partner at Greene Espel and as an associate at Sidley Austin. She's a graduate of Duke Law School, where she served as Editor-in-Chief of Law and Contemporary Problems. She began her legal career as a law clerk to the Honorable Diana Murphy of the US Court of Appeals for the Eighth Circuit.
Joining Professor Walsh are two students in the law student's Gun Violence Prevention Clinic, Charlize Esquillo and Connor Smith. Charlize and Connor are rising 2Ls and summer student directors for the law school's Gun Violence Prevention Clinic. Professor Walsh, Charlize, and Connor, thank you so much for your time and for sharing your insights today. With that, let's go ahead and begin.
Megan Walsh: Thank you, Devin. I really appreciate all of your commitment to Minnesota law as well as the greater Twin Cities community. It seems like you're everywhere. We're all better off for it. Thank you very much. I also want to acknowledge the Minnesota alumni team who have put together the CLE and dealt with some unexpected technology. I'm glad everyone made it here. Also, especially thankful to my students, Charlize and Connor, for joining in this presentation today.
I like to start discussions about the Second Amendment with some grounding in what gun violence looks like because I will say I love my job for a million reasons, but I never lose track of the fact that when we're talking about gun regulations and Second Amendment law, we're talking about things that affect real people. These are the most recent statistics that we have on gun deaths in America.
When I first started working on this issue as a lawyer over 10 years ago, the number was less than 100 people per day who were fatally shot in America. That number, in a fairly small amount of time, has now gone to 125. In 2024, there were about 44,000 deaths, which was a reduction compared to the prior year, but 2024, as well as the most recent five years, are the highest number of gun deaths annually in recorded history. As you might know, guns are used in over half of all suicides and 80% of homicides, both here in Minnesota as well as in the greater country.
Suicides make up the largest percentage of gun deaths. Homicides are about a third of deaths. We also have some gun deaths that are identified as other, often including unintentional shootings by children, much of which is preventable. There are approximately 1.2 guns per one person. Currently, firearms are the leading cause of death for children and teens in the US, and it has exceeded motor vehicle traffic accidents for a number of years now.
I always like to center ourselves in that because the decisions that courts are making today are affecting real lives. We know that intimately as Minnesotans, and I assume everyone here has a connection to Minnesota as an alum. Courts that are making these decisions are really affecting our lives.
Okay, so let's talk about the Second Amendment. You likely know that for many years, the US Supreme Court understood the Second Amendment to protect a right connected to militia service. It wasn't until 2008 in the District of Columbia v. Heller case that the Supreme Court recognized an individual right to keep and bear arms. If you think back to 2007/2008, we had a very different court than we have right now. We had four justices who were reliable in voting for the so-called liberal position, four justices who were reliably voting for the so-called conservative position, and then we had Justice Kennedy in the middle.
When the advocates argued this case before the Court, we did not know what would happen. We did not know how this case would come out. Ultimately, Justice Kennedy's position in the center of the Court really fundamentally altered the way that the Heller opinion came out. I get to meet Dick Heller. This is a picture of him. He's a character. My students and I got to attend the US v. Hemani oral argument at the Supreme Court, which Charlize is going to discuss in a little bit. He was hilarious. He was happy to talk to us. He wanted us to guess if he had a gun on him or not. He's a very important figure in the history of the Second Amendment because it was his case that led to the development of an individual right separate from the militia.
Heller determined that it is unconstitutional to ban citizens from keeping a firearm in their homes for self-defense. District of Columbia fully banned handguns. Residents were allowed to keep long guns and rifles, but they were required to keep them stored securely and unloaded. The Court held that this was not constitutional. Let's go to the next slide.
That was a big deal. We know now that because of Justice Kennedy's vote, there was a lot of language incorporated into the decision that limited the impact of it. Justice Scalia wrote the majority opinion and came out and said explicitly, "The Second Amendment right is not unlimited." It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. It identified presumptively lawful regulations, including longstanding prohibitions on the carrying of concealed weapons, longstanding prohibitions on the possession of firearms by felons and the mentally ill, severely mentally ill, is how that ends up being applied.
Forbidding carry of guns in sensitive places like schools and government buildings, like where the Supreme Court sits, and laws imposing conditions and qualifications on the commercial sale of arms, such as background checks. If you think back to the summer of 2008, Barack Obama and Senator McCain were running for president. They both came out after this opinion and said, "This is the way it should have come out. We believe in an individual Second Amendment right."
That's really where a lot of Americans are. They believe that the Second Amendment protects an individual right, but they also believe that it is constitutional for government to regulate that right in the name of public safety. That's what encapsulated Heller. There's always been a history and tradition of government regulation that goes along with the Second Amendment right.
Heller left a lot of questions open as far as how courts should look at how to determine whether a law is constitutional or not. There ended up being a lot of similarities among how courts approach this. Over 1,500 state and federal court decisions apply to two-step tests, which is commonly understood or talked about as interest balancing. At the first step, the Court says, "Does this regulation affect activity protected by the Second Amendment?" For instance, they might say, "Is the person regulated? Do they have a Second Amendment right at all?" For instance, non-citizens is an issue that came up a lot post-Heller.
Is the arm that's regulated, does that receive protection from the Second Amendment? Then also, all of those presumptively lawful laws that were discussed in Heller, is one of the laws being challenged? Does it fall into one of those buckets, and does that make it automatically constitutional?
The second step is when the interest balancing comes in, and so the government has to identify an interest, right? Generally, public safety, keeping people safe, reducing gun deaths and gun injuries. The court looks to, is that regulation justified? Is the restriction on the right justified because it does what the government wants it to do? Does it save lives? Does it reduce gun violence? Those were the factors that were really controlling in what was going on with the huge amount of litigation that came after Heller challenging gun laws.
Everything was challenged after Heller because, for the first time, the courts were recognizing an individual right, for the most part. There had been other exceptions, outliers earlier. Background checks, prohibitions on so-called assault weapons, which I recognize is an imprecise term, purchasing carry restrictions for 18- to 20-year-olds, all of these were held to be constitutional.
Shortly after Heller, the Court took McDonald, which was a case about the city of Chicago in Oak Park, Illinois, and held that the Second Amendment also applies against the states. Then for a number of years, it didn't take any Second Amendment cases. It wasn't until Bruen in 2022 when we really had a massive sea change. If you look here at these justices, we have a fundamentally different court. We have a reliable six votes that are going to strike down this gun law. Going into this case, everybody knew that the Court would strike down the law that was being challenged, but we didn't know how they would do it. That became the key question for Bruen.
I'll say very briefly about the law that was challenged. It was a permit-to-carry law in New York. I put the Billions picture here because it was so rare for people to get a permit-to-carry in New York City that it actually became a plot point in a number of TV shows, including Billions. It was an outlier in terms of what a permit-to-carry statute looked like. Most situations, most states now have requirements to be able to carry in public. You have to pass a background check. You might have to do some training. You might have to do live training on a range.
Most of the states, their laws say, "If you meet all of those requirements, then the government shall issue you a permit." It was intended to be an objective test. New York did not have that type of thing. Their law said that if you meet all these requirements, the government may issue you a permit to carry. New York interpreted that for citizens to need to show that they had a need to carry greater than the average citizen to be able to merit getting one of these permits to carry.
This was the very first time that the Supreme Court recognized that the Second Amendment right existed outside of the home. That was actually conceded by the government. Again, when you're dealing with a 6-3 vote, the government had to make different choices about how they approached the argument. They conceded that. The Court held that the government cannot require citizens to show a specialized need since this is a constitutional right. That affected only a couple of states, but a large number of people, as shown in the last slide, because some of the states that had may-issue permitting were pretty large. These were the outliers.
The actual effect of this wasn't huge, but what really changed things is the adoption of the Bruen test, which is focused on text and history. What Bruen says is you can't use interest balancing anymore. You can't look to how well does this law actually save lives and improve public safety. The only thing that matters in terms of whether or not a gun regulation is constitutional is based on the text of the Second Amendment and on history.
If you think about constitutional challenges in other contexts, you might remember that governments passing legislation are presumptively passing constitutional legislation. I talk about it with my students as like the tie goes to the runner. In situations, all things considered equal, the government's law is presumed to be constitutional because it was enacted by a duly elected legislature and is supposed to represent the will of the people. They get the benefit of that.
Bruen flips that on its head. They still have two steps. The first step is the same as the first step in Heller: is this regulating conduct that is protected by the Second Amendment at all? If it is, that law is presumptively unconstitutional. It flips the burden to the government then. The only way that the government can show that their law is constitutional is by going back to historical laws and showing that the modern law is consistent with the nation's historical tradition of firearm regulation.
Bruen talks about this in terms of analogical reasoning. What that means is, let's say you have a modern law that says that you're not allowed to sell an AR-15 to a 19-year-old. You have to find laws that are relevantly similar to that law, either at 1791 when the Second Amendment was enacted or at 1868 when the Fourteenth Amendment was adopted or somewhere in between. The Court hasn't actually told us what time frame is controlling. It keeps punting, but we know that it has to be not too early, not too far before the founding, and not too recent. That's one of the questions that's still open.
If you're thinking about that law, there were no AR-15s in 1791, of course. What is a comparable analog? Do you have to have a dangerous, unusual weapon? Do you have to have any type of weapon? Then you have to see how many jurisdictions actually have this kind of law because Bruen says that historical analogs need to be representative. If only three states have that law, for instance, that might not be sufficiently relevant enough to show that that law was part of the historical tradition.
Now, the Court does say you don't need a historical twin, you don't need a dead ringer, but it has this very fuzzy definition of how do you define what's relevantly similar. Ultimately, what the Court does is it says it comes down to two major questions: the how and the why. Both of them relate to this idea that the Second Amendment protects an individual right to protect herself or self in personal self-defense. It says, "Why and how do the historical regulations and the modern regulation affect your ability to defend yourself with a weapon?"
Just as Thomas, who wrote the opinion, recognizes, okay, this could be difficult sometimes. Everything could be similar. Are a green truck and a green hat analogous? That is still, to this day, difficult for courts to really understand what exactly they're supposed to do. One of the criticisms that the Bruen test gets is it was intended to limit individual judges imposing their own views on how the outcome should be. Ultimately, we are seeing that it actually creates a lot of room for judges to be able to impose their own beliefs, leading ultimately to the outcome of whether a law is constitutional or not.
This is the summary of the first two tests. First, does the Second Amendment protect the conduct covered by the plain text? A number of courts post-Bruen have held laws constitutional at the first step. For instance, some courts have held that AR-15s do not receive any protection under the Second Amendment. Therefore, regulation of those weapons is constitutional at the first step, and they don't reach the historical analysis.
Most courts are reaching the historical analysis at the second step. Bruen does recognize that we have some unprecedented societal changes compared to the founding and Reconstruction, such as dramatic technological changes. That may require a more nuanced approach, which we have interpreted to mean a higher level of generality in terms of the fit between the modern law and the historical law.
We have a little bit of voting here for you to make sure you're paying attention. We have identified three potential laws, and I'd like everyone to vote for which one they think is the false historical law.
[pause 00:19:39]
Megan: My students figured out how to do this. [laughs] Connor, are you able to show me what the results are? Let's see. [silence] Okay, so we got a pretty good layout here. Ultimately, it was the one about wicked highwaymen and scamps that was the false one. The one about Fandangos and the one about orchards and gardens and cornfields are all historical laws that have been used in cases post-Bruen, too, in an attempt to justify modern gun regulations.
This is how laws are being determined if they are constitutional or not. Not about does this save lives, not about do these laws work, but did somebody back in the day decide to legislate? You might imagine that there might be a lot of reasons why a duly enacted legislature would not pass a law, even if they have the power to do so. That leads us to our discussion of the two new cases that the Supreme Court issued this term. This is a big deal because the Court has taken so few cases on the Second Amendment since Heller. Taking two in the same term is a significant factor.
Charlize Esquillo: First, we were going to talk about Hemani. In 2022, the government conducted a search of Mr. Hemani's home because of suspicion that he was engaged in terrorism-related activities. It wasn't connected to firearms at all. They found marijuana, cocaine, and a gun on the property. Mr. Hemani told them that he used marijuana about every other day and that the cocaine was in his parents' closet because his mother had hidden it from him, and he hadn't used any recently.
The government then prosecuted Mr. Hemani under 922(g)(3) for knowingly possessing a gun in his home while being an unlawful user of a controlled substance, which was the marijuana. This was the only charge they brought. There was no evidence that he used the gun while he was high, that he used it more than every other day, or anything else. Mr. Hemani then brought an as-applied challenge to the Court, asking for the Court to rule that the statute was unconstitutional under the Second Amendment for his specific circumstances.
The government saw it cert, and many people thought that the Supreme Court would uphold the statute. It was a pretty big surprise to many people when the unanimous decision came out. The Supreme Court held that the government's prosecution of Mr. Hemani under 922(g)(3) solely for being a regular marijuana user was inconsistent with the Second Amendment. The Court clarified it is a narrow holding, and it doesn't address things like addicts, drugs that pose special risks, or disarming individuals convicted of felonies.
The statute is shown on the screen. As you can see here, the statute was very broad. During oral argument, some examples that would be in the scope of the statute were a husband borrowing his wife's Ambien to sleep or a student using a friend's Adderall to study. Under the statute, that person would be an unlawful user and automatically banned from owning a firearm. The Controlled Substances Act, or CSA, as you see on the screen, was broad in its list of controlled substances, and that was a Supreme Court concern we will get to later.
In the Hemani opinion, the Court acknowledged how common marijuana use is today, comparing it to alcohol use back at the founding. It then thought it was important for everyone's understanding to bring up some interesting founding fathers' drinking habits. Which of the following is a lie? [silence] I'll give it a few more seconds before we share answers. [silence] Okay, let's see. Well, the lie was George Washington did not mix wine with his soup at dinner, but what he and Thomas Jefferson did do was drink three glasses of wine at dinner every night.
Hemani is pretty important. This is only the second case decided since Bruen relating to Second Amendment constitutional challenges. In Bruen, we learned about the how and why test, which requires that the government show that its contemporary regulation is relevantly similar to ones well-established in a nation's history. For the first step, the Court didn't spend much time on this. They said it was fairly obvious that the statute was covered by the Second Amendment, and the government agreed so as well. 922(g)(3)'s unlawful user provision burdens conduct protected by the Second Amendment and was presumptively unconstitutional because the statute banned a class of people from possessing firearms.
For the second step of Bruen, the government brought forth the following historical analogs, which were the habitual drunkard laws. First were vagrancy laws, where vagrants, including habitual drunkards, could be confined in a workhouse or jailed. Historical civil commitment laws were when courts would appoint guardians or authorize asylum commitments for various individuals, again, including habitual drunkards. Last were surety laws, where judicial officers could compel habitual drunkards and others to post surety bonds to ensure their good behavior. The person who failed to post bond would be jailed, while a person who posted bond and then misbehaved would forfeit the bond.
For the why part of Bruen, the first argument that the government had was that both the habitual drunkard laws and 922(g)(3) have the same reasons for targeting unlawful users. They regularly use intoxicants. The Supreme Court responded that it wasn't similar enough with habitual or drunkard users. The historical laws the government identified applied to drunkards that drank so severely that it incapacitated them and affected their lives. Some statutes required an individual to be mentally incompetent or lose the power of self-control. 922(g), on the other hand, did not take into consideration how much an individual use of a drug or the effects it had on them.
Another argument the government had was that both the habitual drunkard laws and 922(g)(3) have a purpose of protecting the public from unusually dangerous individuals who commit violent crimes. The Supreme Court responded that the three habitual drunkard laws had little to do with protecting the public from categorically violent and dangerous individuals. For vagrancy laws, they said that the law targeted individuals who didn't meet the societal expectation of work, including more than habitual drunkards, and then they sentenced them to workhouses or jails. They weren't focused on protecting the public, but more intended to promote productivity and suppress vices.
For civil commitment laws, again, the law permitted a court to assign a guardian to a habitual drunkard to take care of the person and his estate or confine the drunkard to an asylum for reform. The law was not focused on protecting the public from these habitual drunkards, but to protect habitual drunkards from themselves and their families from financial devastation.
Surety laws weren't similar enough either. Those laws imposed a surety of good behavior on individuals who threatened a scandal. They sought to protect the community from scandals against good morals, but didn't require showing that an individual posed a threat of violence. The Court then concluded that protecting the community from bad behaviors was nothing like 922(g)(3)'s purpose of protecting the community as well.
For the how part of the Bruen test, the government argued that the historical laws allowed governments to detain people in places where they couldn't bear arms while 922(g)(3) temporarily disarmed unlawful users. The Supreme Court responded that the historical laws the government identified had some sort of process before the individual lost their right. For example, the historical laws had a pre-deprivation process. Vagrants normally could only be sent to a workhouse or jail once there was a conviction. For surety statutes and civil commitment statutes, there was a court proceeding in place before they were assigned a guardian or committed to an asylum or before a bond could be ordered.
Current laws, like felon prohibitor statutes, also have a process. It requires that the individual is convicted of a felony, which includes things like a trial. 922(g)(3), on the other hand, doesn't have any of those things. The statute automatically deprives an individual of his right to bear arms the moment he becomes an unlawful user until he ends his drug use. It doesn't provide notice to the individual either that he can't possess a firearm. The Court acknowledged although 922(g)(3) entitles an individual to a full dress criminal trial before he can be imprisoned or permanently disarmed, it doesn't offer a pre-deprivation process before that temporary disarmament.
The Supreme Court had other concerns as well. One was that the statute relied too much on the Controlled Substances Act to disarm anyone who regularly uses a drug found on a CSA schedule for anything other than its prescribed purpose. That's where the Ambien and Adderall examples came in. The CSA was adopted to protect the health and general welfare of the American people, which the Court believes made its scope too broad for the statute. It added drugs for a variety of reasons that didn't always include its potential for violence, like the state of current scientific knowledge about a substance.
Because of this, 922(g)(3) didn't appear to confine its reach to individuals who are categorically and unusually dangerous. In addition, marijuana is not illegal in many states. However, for the statute, the drug was classified as a Schedule I drug by the CSA. Schedule I drugs are reserved for drugs with a high potential for abuse with no currently accepted medical use. After Hemani's oral arguments, it was then moved to a Schedule III drug, which means it was a drug with a lower potential for dependence and abuse, and for which a currently accepted medical use exists.
The statute's inclusion of marijuana users conflicts with how the country sees marijuana today. 40 states, 3 territories, and the District of Columbia have legalized some marijuana use. Some surveys suggest there may be more adults that use marijuana regularly than drink alcohol now. Because of that, the Court didn't believe that many Americans who regularly use marijuana could be categorically and unusually dangerous under the statute. The Court acknowledged there are certainly ways that individuals' use of marijuana can make them a danger to others, but the statute didn't require that further showing of dangerousness other than just being a person that regularly uses weed.
Something to note that Megan mentioned earlier is that the Court continues to punt on determining whether courts should focus on history at the founding, so that was when the Bill of Rights was ratified in 1791, or at Reconstruction, which was when the Fourteenth Amendment was ratified in 1868. Either way, the Court did say that the government couldn't establish that the Second Amendment at either point in time permitted anything like its prosecution here in Hemani.
The Court made sure to specify that the holding was narrow. It held that Mr. Hemani's prosecution was unconstitutional because he was a regular user of marijuana, which the Court believes was not categorically and unusually dangerous enough. Statutes that have an individualized finding of a credible threat, due process, or a more narrow scope of people or drugs deemed categorically and unusually dangerous are not as vulnerable.
The Court also acknowledged there are certain drugs and certain ways that people use drugs that are categorically and unusually dangerous. The Court specified that Hemani doesn't resolve cases including addiction. It doesn't decide cases involving cocaine, meth, or any other drugs with higher or different risk profiles. The Court also said it doesn't address laws disarming individuals convicted of felonies either.
Another thing to know about Hemani is that it seems like the Court does care about who the law is targeting, not just the how and the why. The historical laws the government cited apply to those who drank excessively, which wasn't a close enough comparison to people like Mr. Hemani, who regularly consumed weed every other day. The type of person a historical law was applied to is something to consider when finding similar historical analogs.
[silence]
Connor Smith: That brings us to our second big case of this term, Wolford v. Lopez. To provide a little bit of background, Hawaii was one of the states that had a may-issue permit-to-carry scheme like New York that was invalidated as a result of Bruen's decision. In 2023, as a response to that, Hawaii passed a law that prohibits the carrying of concealed handguns onto private property without the express consent of the property owner.
This suit is arising from a challenge to that law brought by three gun owners and a firearms advocacy group in Hawaii that sued to prohibit the implementation of the law. It was initially enjoined by the district court, and then later upheld by a Ninth Circuit panel that found that the Second Amendment is not implicated by a law dealing with private property.
It's also worth talking about something that comes up in this case a bit and is sort of a through line here: the spirit of aloha, which is a term that is used by the majority opinion with a bit of derision. In 2024, the Supreme Court of Hawaii decided State v. Wilson, where it essentially held that the Second Amendment is a limited right in Hawaii. The Supreme Court didn't grant cert in that case, and it's clear that some of the justices on the current US Supreme Court have had a chip on their shoulder about that ever since, and on Hawaii sort of flouting their belief that the Second Amendment is a overarching right that should apply to any state and to all people within the United States.
It's also worth talking about the spirit of aloha, the historical tradition within Hawaii of not carrying arms. When Hawaii was a kingdom and an independent nation, it prohibited the carrying of dangerous weapons on the islands in 1833, and that law remained in force until the Kingdom of Hawaii was overthrown by the US government, and it was later consolidated into the United States. It's also worth noting also that this law was passed with significant public input, and that a majority of Hawaii's residents supported the passage of the law, and Hawaii has a very low gun ownership rate. Only, I believe, 8% of Hawaii residents own a firearm. We can move to the next slide.
The actual holding here is that the Court decided 6-3 that the law is unconstitutional and that states cannot prohibit the carrying of firearms on private property that is generally held open to the public. That last part is important here. This holding does not apply to the state's ability to regulate the ability to carry firearms onto private property that is not generally held open to the public.
The specific example contemplated by the majority opinion here was a hypothetical young woman who has a permit to carry a firearm going about her day, going to a gas station, a restaurant, a dry cleaner, a grocery store, and under Hawaii's law, if those businesses don't post that firearms are welcome on this premises, that young woman would have to decide between criminal liability for carrying her firearm onto the property or being disarmed and vulnerable throughout her day.
Wolford substantially changes our Bruen test. We start with the language as described by Charlize and Megan previously: is the conduct here being regulated within the plain text of the Second Amendment? As Megan talked about before, in the wake of Bruen, courts regularly used historical understandings and historical regulations to inform that that analysis, basically, is the plain text of the Second Amendment implicated. As Megan alluded to, the history and tradition that the Supreme Court has recognized of regulating dangerous and unusual weapons has been considered in what constitutes an arm under the Second Amendment and has been used to presumptively uphold AR-15 bans.
It's clear that from this opinion, the majority has a substantial problem with this and is seeking to curtail the ability of lower courts to uphold laws at the first step if they implicate firearms. The Court adds some additional heft to the initial analysis by defining that the people refers to all members of the political community, asking whether the regulation concerns any weapon used for defensive or offensive purposes, and whether the regulation places any restriction on the possession or carrying of firearms.
This language is taken from previous cases from Heller and Bruen, but the emphasis placed here really makes it clear that any law essentially dealing with limiting the ability of individuals to carry firearms where they want is presumptively unconstitutional. The really big change for Wolford comes with the consideration of historical evidence.
The majority opinion announces that historical analysis is out of place at Bruen's first step. This is a big change. Bruen's test is derived from Heller. Both Bruen and Heller grounded the meaning of the plain text of the Second Amendment as it was understood in the 18th century based off of founding-era sources. There's some disagreement in the conservative block of the Court here. Justice Barrett, in concurrence, pushes back on that claim that history is not to be considered in the first step but affirms that the disagreement is whether courts can smuggle additional limits drawn from our regulatory tradition into the plain text stage of the inquiry. The answer is and always has been no. Even though Justice Barrett disagrees within majority's opinion that history is essentially not a consideration in the plain text analysis phase of Bruen inquiry, it's clear that both Justice Barrett and the majority in this case agree that lower courts should not be able to read in regulations from the historical analysis into the meaning of the Second Amendment.
As applied here, the majority finds that the law falls within the plain text of the Second Amendment because it hampers the ability of law-abiding citizens to exercise the right that Bruen recognized. In declaring that, the Court also announces that the Second Amendment protects the right of Americans to carry arms for self-defense as they go about their daily lives. This is a pretty significant ratchet on what the definition of the right that the Second Amendment protects is. As Megan mentioned before, it wasn't until Bruen in 2022 that the Court even recognized the right to carry a firearm outside of the home.
Heller was specifically about the right of individuals to possess firearms within the home. This is a substantial expansion on the meaning of the text of the Second Amendment. Although Justice Barrett disagreed on whether or not history should be considered at this stage, she nonetheless agrees that the law here clearly is within the text of the Second Amendment and therefore is presumptively unconstitutional.
For Step 2, the Bruen court adds some new emphasis on previous considerations. We keep the core question, as described previously: is the historical regulation being pointed to relevantly similar to the modern regulation in how and why it restricted the carrying of arms, but we newly emphasize the questions of how many jurisdictions the historical regulation was adopted in and to what extent the historical regulations were well-accepted, meaning open, widespread, and unchallenged. These considerations aren't new.
They both came up in Bruen, but here the Court is declaring them as part of the three questions that fall under Bruen's second step and is placing them as relevant as the how and why analysis. That has a pretty substantial impact here as well. The Court hasn't articulated how many jurisdictions is enough. The Court hasn't articulated what makes a law well-accepted historically. This really adds additional ability for a given judge to have their own opinion on this, really, and for judges given the same facts to have very different outcomes as to what their interpretation is as to whether the record provided by litigants before them have met this burden or not. Moving on to the next, there we go.
As a pop quiz, based off of our new understanding of the Bruen inquiry under Wolford, I will be asking which of these historical analogs would be relevantly similar to Hawaii's law? [silence] I'll give maybe 20 more seconds for folks to answer. [silence] I have the benefit here of being the one actually running the poll, so I can see everyone keep filing in. [laughs] I'm like Charlize and Megan had to weight blend.
All right. Great. You should all be seeing it. It seems like we have pretty good consensus around the 1771 law. This quiz is a trick question. These are all actual laws that were pointed to by the state of Hawaii in arguing that their current regulation is constitutional. Can we move on to the next slide? Thank you, Charlize.
In defense of their law, Hawaii pointed to a medley of historical information. They pointed to five 18th-century laws, three of which you just read, snippets of at least, that prohibited the carrying of firearms or hunting on others' private property without permission, an 1893 Oregon law that prohibited being armed on another's property without their permission, and an 1865 Louisiana law prohibiting carrying firearms on the premises or plantations of any citizen without consent.
It's worth saying that just facially, these laws seem similar. Nonetheless, the majority here distinguishes that none of these provide a relevantly similar enough analog to support Hawaii's law. Under the why, the purpose of these laws inquiry for the second step, the Court distinguishes each of Hawaii's historical analogs, saying that the five 18th-century laws were principally targeted at unauthorized hunting, saying that it's specific misconduct with firearms, not the broad regulation of firearms.
It's worth noting that the Court articulates that some of the dangers, the harms that these laws were aimed at as part of unauthorized hunting, were things like property damage, death, or serious injury, or surprise or alarm at the sound of gunshots. Although these considerations seem like they would also lend themselves to the purpose of Hawaii's current law, the Court sees these as actually making the laws less similar rather than more similar.
The 1893 Oregon law is deemed too distant from ratification of either the Second or Fourteenth Amendment to be relevant. While the Court doesn't specifically say that black code laws can't be considered, it notes that the 1865 Louisiana law was part of the black codes and was passed to perpetuate the subjugation of blacks and cast aspersions on Hawaii for citing it as a potential historical analog, although it does not actually say that these laws aren't able to be considered.
Moving to how the Court distinguishes these laws as well by saying that the five 18th-century laws applied principally to where game could be found and not to retail establishments or areas where citizens would be frequently in daily life, determined that the 1865 Louisiana law was not widespread nor widely accepted and therefore carries no weight in the analysis. It distinguishes several of the laws cited by Hawaii as not specifically requiring express consent but permitting implied consent from landowners to come armed, which they say is a substantial difference from Hawaii's law.
This opinion had two dissents. First, Justice Kagan dissents very briefly; I believe it's two pages, just to argue that the historical laws cited by Hawaii should satisfy Bruen's second step. She says that the how is identical; the why is sufficiently close. Kagan argues against the narrowing of the levels of generality as adopted by the Wolford court here and argues that they're essentially requiring a dead ringer, which is something that, as articulated in Bruen and Rahimi and Hemani, the Court says you don't need, but Justice Kagan says that that's what the majority is requiring here.
Our principal dissent in this case is written by Justice Jackson, who dissents both to the majority's application of Bruen to these specific facts as well as to the general dysfunction that she sees as the majority's opinion adds to conducting Bruen inquiries. She argues for these specific facts that Hawaii's law should survive under either step of Bruen, that because there's no constitutional right to enter private property of another without consent, the Second Amendment is simply not implicated.
At Step 2, she argues that the laws cited by Hawaii are similar enough in the how and why to the present regulation to show that it was commonly understood at the founding. That the Second Amendment yields to property rights when it concerns private property. On this point, Justice Jackson argues that the law deals with a default assumption as to when and under what conditions consent can be implied to enter private property, and that there's a long history that that has long been understood as being under the purview of states to define.
Justice Jackson also argues that Bruen is just not a workable test because modern courts can't use it to reliably determine whether a modern law is constitutional or not. She argues that if we do have to accept the Bruen test and move forward with it, the majority is changing the rules here and isn't actually faithfully applying their own precedent. She notes that both Bruen and Heller based the plain text inquiry in plain meaning informed by historical context to determine the meaning as understood at ratification.
Then the new test as articulated by the Wolford majority here allows any judge to make determinations based off of essentially their individual feeling as to what the language of the Second Amendment means and what is covered within it.
Moving forward from Wolford, I think it's worth asking: how is this going to affect Bruen inquiries? How does this actually get implemented? All of the questions on the screen here are questions that a judge needs to ask. If they're overseeing a Second Amendment challenge, if they're trying to conduct a Bruen inquiry here, they need to determine the answer to all of these. They need to balance these things, and there's not very much guidance to do so.
Wolford took Bruen's test, which was already fairly vague and challenging for lower court judges to implement, and it's added a lot of haziness here. It's unclear on what exactly the right test is. It's unclear on what level of generality for historical regulations we look to. It's unclear on the number of jurisdictions and the consistency between the historical regulations. It's worth thinking about: will this increase or decrease judicial variance in trying to implement Bruen going forward?
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Megan: We're getting to the end of our hour. I'm going to just briefly talk about some things that I'm thinking about as we go forward, and then hopefully we'll have a few minutes for questions. I made this slide to show that the Supreme Court is getting these cases very early in most of these situations. Very early in the criminal process, Hemani was decided on a motion to dismiss an indictment. Many of these are decided on a motion to dismiss, so that's pre-discovery. That means no trials are happening. We have a fairly fact-heavy test with fairly limited development of facts when they're finally getting to the Supreme Court.
Wolford and Hemani also continue the position that the Court has taken basically since Heller. As I talked about before, it used to be the tie goes to the government. Now it seems like the tie goes to the gun. Justice Jackson picks up on this argument back in her dissent in Wolford. She basically is saying, first of all, you can't implement Bruen accurately. If you are going to, you really should be following Bruen and not just making up what historical analog should apply, what shouldn't apply.
Ultimately, she concludes that the Court's objective is really just to make sure that firearms are available and easily accessible. That is a position that does not reflect the fact that the presence of a firearm fundamentally makes things more dangerous in most situations, in suicides, in unintentional shootings, in homicides, et cetera. That is intimately connected to the outcomes in all these Supreme Court cases.
As you can see, the Supreme Court has only upheld one gun law in Rahimi, which was the narrowest of all of the laws that the Court has looked at since Heller. In every other situation, it's struck down the law. That really is where this current court is in terms of looking at gun regulations. After Bruen, it only took a matter of months for lower courts to strike down gun laws in the same number as had been struck down between Heller and Bruen.
Connor talked very well about the first step and how that is going to likely be changing after Wolford. That is especially relevant because the Supreme Court just took a new case addressing the constitutionality of bans on assault weapons, which will be heard next term.
This will be the first class of arms case. We talk about who, what, and where in terms of constitutional questions around the Second Amendment. This is what weapons get Second Amendment protection. Every single federal appellate court that has looked at whether a ban on AR-15s and other assault weapons and large-capacity magazines has found those laws to be constitutional, including one from the Seventh Circuit last week after Wolford was issued.
Obviously, we're going into the same court that decided these recent cases. I think it's going to be very difficult for the government to justify the ban under this current Bruen framework. We'll see if they do finally answer what the most relevant historical period is, which they keep punting on. Devin, I think we might have a few minutes for questions before we have to end up.
Devin: Great. Well, we've got two in the queue here, so I'll start with the first. With Wolford removing or criticizing historical analysis of Bruen's Step 1, how does this change the kind of arguments being made with regard to age restriction laws, which previously seemed to focus heavily on who the people were at the time of the founding?
Megan: That's a great question. I will say, first of all, that I did work and support the Minnesota Attorney General in the Worth case. I want to acknowledge that these are my personal opinions. I do not represent the Minnesota Attorney General when I talk about this. What we have seen is that courts are not likely to hold that people between the ages of 18 and 20 are not part of the people in modern-day society.
Actually, a lot of the cases were not decided on the first step when it came to age regulations. Most of the cases looked at historical regulations in the context of the second step. What that did look like, which I think may be where this question is going, is some of the courts that have addressed the question most recently have looked at the common law at the time of the founding. At that time, minors, who were then called infants, were not able to contract in a lot of situations. That has been fundamental to the courts who have upheld restrictions on 18- and 20-year-olds and firearms.
Will Wolford change that? I don't think so because the only cases that have actually upheld age restrictions have done so on the basis of the second step and on historical analogs. Age limits are one of those cases where the law is fundamentally really different. It's fundamentally different because the laws that were in place at the founding are really different than the laws that were in place in Reconstruction after pistols became more easily available, cities developed, and so you have a very different sense of personal self-defense and gun violence at the Reconstruction time.
Devin: Our last question here. Do Hemani and Wolford give formal guidance about the level of generality at which historical analogs must resemble the challenged law? I think we know from your discussion the answer is no on formal, but what general principles can lower courts and litigants take away when they're figuring out whether certain historical laws are good analogs?
Megan: That's the money question, right? Connor did a great job of talking about it. That's really been an issue in terms of how courts are applying Bruen. Rahimi, which was the only case in which the Supreme Court upheld a gun restriction, offered a much higher level of generality. What Wolford says is that the reason why that was appropriate is because it dealt with domestic violence, and domestic violence was fundamentally looked at differently at the founding. There were no such things as DVROs, restrictions put in place on people who have been convicted of domestic violence offenses or who are subject to a restraining order.
Then Wolford says you have to look at it more carefully. The fit has to be much more narrow. I do think we will see a lot more gun laws being struck down with this guidance from Wolford, but as you added exactly, I'm not sure that there's formal guidance other than we'll see what courts do with it.
Devin: Thank you to our participants. Thank you to our presenters. We hope this has been an educational opportunity for you. We look forward to seeing you at future Board of Advisors Academic Engagement Committee CLEs. Thanks very much, everyone. Take care.
[00:58:34] [END OF AUDIO]
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