Supreme Court Issues Two Second Amendment Rulings

Why it matters locally: The impact of the original 2022 *New York State Rifle and Pistol Association v. Bruen* Supreme Court case, which established a new test for Second Amendment challenges, continues to be refined by these subsequent rulings. New York's gun laws will be subject to ongoing scrutiny based on the *Bruen* test's application, potentially influencing how the state regulates firearm possession and concealed carry permits.

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WASHINGTON – The Supreme Court issued two decisions in June concerning the Second Amendment. In *United States v. Hemani*, the court unanimously supported Ali Hemani's challenge to an indictment under 18 U.S.C. § 922(g)(3), which prohibits firearms possession by an unlawful user of a controlled substance. In *Wolford v. Lopez*, the court ruled unconstitutional a Hawaii law requiring concealed-carry permit holders to obtain property owners' explicit permission before carrying a firearm on private property accessible to the public. These rulings followed oral arguments where the outcomes were anticipated. Both decisions provided specific answers to the questions presented to the Supreme Court. ### *Bruen* Test Applied The 2022 Supreme Court case, *New York State Rifle and Pistol Association v. Bruen*, established a test for Second Amendment challenges. This test first requires an individual challenging a law to demonstrate that the regulated conduct falls within the amendment's plain text. The burden then shifts to the government to prove the law aligns with the nation's historical tradition of firearm regulation. Previously, in *United States v. Rahimi*, the court upheld 18 U.S.C. § 922(g)(8), which disarms individuals under a domestic violence restraining order. The court stated this law was 'consistent with the principles that underpin [the nation's] regulatory tradition,' despite not having direct historical equivalents. In *Hemani*, Justice Neil Gorsuch's opinion for the court scrutinized the government's historical evidence. The opinion analyzed the rationale and methods of founding-era regulations cited to support Section 922(g)(3). Justice Gorsuch wrote, "The government . . . contends that § 922(g)(3) disarms unlawful drug users to protect the public from 'unusually dangerous' individuals who will 'misuse . . . firearms' to commit 'violent crime[s].' . . . But . . . the government misapprehends the purposes animating the historical analogues it invokes." The opinion also stated that historical vagrancy laws, cited by the government, primarily targeted individuals who did not meet societal expectations of work, rather than broadly disarming categories of "unusually dangerous" persons. Six justices joined Gorsuch's opinion, with Justices Samuel Alito and Elena Kagan concurring in the judgment. Justice Alito also wrote the majority opinion in *Wolford*, which similarly applied the *Bruen* test to Hawaii’s historical evidence. ### Interpretation of the Second Amendment's Text The *Bruen* test interprets the Second Amendment's text. It presumes that any law burdening the conduct described by the amendment's words—'keep[ing] and bear[ing] Arms' by a member of 'the People'—is unconstitutional. Governments can overcome this presumption by showing a historical tradition of firearm regulation that aligns with their current regulation. Some lower courts have incorporated historical traditions into the first step of the *Bruen* test. They have argued that certain individuals, such as lawbreakers, do not qualify as 'the People' whose rights the Second Amendment protects. However, *Hemani* treated it as undisputed that Hemani, despite being a lawbreaker, is a member of 'the People.' In *Wolford*, Hawaii argued that challengers failed at *Bruen*'s first step because "the right to bear arms did not encompass the right to armed entry onto private property without the owner’s consent." The court rejected this, stating that "these authorities . . . are out of place at *Bruen*’s first step. At that stage, as we have explained, the question is simply whether a challenged law falls within the Second Amendment’s ‘plain text.’" ### Government's Burden of Proof At *Bruen*'s second step, the government must demonstrate that the law it defends aligns with the nation's historical tradition of firearm regulation. This involves showing that the law limits firearm possession for the same reasons and in the same manner as historical regulations. In *Rahimi*, the United States initially asserted that determining dangerousness was a legislative judgment. In *Hemani*, the United States acknowledged it might need to satisfy courts that its judgment was correct. The *Hemani* decision affirmed this, indicating that the government must "prove the reason" for restricting an individual's ability to keep and bear arms. The court provided two points of guidance: * Historical laws generally included some form of process before an individual lost liberties. The court did not rule that the government cannot deprive an individual of the right to keep and bear arms without a pre-deprivation hearing, but it highlighted the need for an individualized showing of dangerousness, especially when attempting to disarm groups of people categorically. * The court stated that the government's "current say-so" is insufficient to prove that "anyone who regularly uses marijuana is categorically violent and dangerous without any further showing." Courts require evidence. *Hemani* provides a model for how courts should analyze Second Amendment challenges. The court will hear two additional challenges to laws restricting ownership of semiautomatic rifles next term, in *Viramontes v. Cook County* and *Grant v. Higgins*.