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Authored By: Aliah Hill
August 6th, 2023
The Second Amendment of the United States Constitution states that “the right of the people to keep and bear Arms, shall not be infringed.”[i] The right to bear arms is a fundamental right guaranteed to the people of the United States under the Second Amendment of the Constitution of the United States of America.[ii] Throughout the country, the states have differing levels of firearm regulation ranging from constitutional carry to strict regulations.[iii] The different degrees of firearm regulation throughout the states are due to the different cultural traditions of each state. In recent years, the differing approaches to firearm regulation have spilled over into public discourse in response to the increase in mass shootings.[iv] Despite the differing approaches to firearm regulation, there is a consensus that the right to bear arms is not unlimited despite being fundamental.[v]
There was a tremendous shift in Second Amendment jurisprudence when the Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). In Bruen, the constitutionality of a New York firearm statute that required a “special need” for obtaining a license to carry a concealed firearm was challenged.[vi] In Bruen, the Court discarded the two-step analysis for firearm regulations that federal courts developed following Heller that considers history and means-end scrutiny.[vii] Under the Bruen standard, the government has the burden of proving that the challenged regulation is aligned with the “Nation’s historical tradition of firearm regulation” when the regulation affects conduct covered under the plain text of the Second Amendment.[viii] The history given the most weight is the history that informs the tradition of gun ownership in the United States in the periods preceding and immediately after the drafting and ratification of the Second Amendment.[ix] The government has the burden of demonstrating that the regulation is rooted in the tradition of the Nation.
Soon after Bruen, district courts across the country began seeing challenges to provisions of 18 U.S.C. Section 922 on the basis that the regulations were not aligned with the historical tradition of firearm regulation at the time of the writing and ratification of the Second Amendment.[x] In response to the notable assassinations in the 1960s, the federal legislature enacted federal firearm regulations.[xi] Under 18 U.S.C. Section 922, the federal government can impose criminal penalties on a broad range of offenses relating to the transportation, purchase, possession, and sale of firearms.[xii] Firearm offenses are the “third most common” type of federal offense behind drugs and immigration.[xiii] In recent years, firearms charges comprise about 14% of federally charged crimes each year.[xiv] In the last two years, there has been an increase in the number of federal firearm offenses.[xv] The average sentence for a federal firearm conviction is about four years.[xvi]
Prior to Bruen, the constitutionality of the federal firearm regulations had been challenged, but those challenges yielded little success.[xvii] In the wake of Bruen, these challenges have had some success. These challenges arise from people appealing their convictions under the statute, people disputing indictments under the statute, and people seeking declaratory judgments by raising as-applied challenges.[xviii] The main targets of these constitutional challenges have been the provisions of Section 922 that codified the Gun Control Act of 1968.[xix] Many of the legal challenges are specifically directed at the subsections of Section 922(g), which identify who is prohibited from possessing or purchasing firearms.[xx]
When some district courts apply their interpretation of the Bruen standard to provisions of Section 922, they strike them down while other district courts uphold the constitutionality of the statute.[xxi] There is a lot of confusion in the courts about adequately applying the Bruen standard since the court now must rely heavily on the Nation’s history when determining whether a firearm statute is constitutional.[xxii] The future of § 922 is precarious. The constitutionality of certain § 922 provisions has already led to circuit splits that the Supreme Court will ultimately have to resolve.
One of the more commonly used provisions—Section 922(g)(1)—has had its constitutionality challenged in district courts across the country in the wake of Bruen. Section 922(g)(1) is the portion of the statute that forbids people with felony convictions from possessing a firearm.[xxiii] In 2021, Section 922(g)(1) violations comprised 13% of federal convictions.[xxiv] In recent years, there were at least 6,000 violations of Section 922(g)(1).[xxv] In Alabama, Section 922(g)(1) cases comprise a high proportion of all federal cases within the state.[xxvi] Over 90% of Section 922(g)(1) convictions result in prison sentences, and the average sentence is five years.[xxvii] If Section 922(g)(1) were to be ruled unconstitutional, the results would dramatically change the landscape of the federal criminal justice system.
There is a circuit split for Section 922(g)(1) on whether the statute complies with the Bruen standard. In United States v. Jackson, 69 F.4th 495 (8th Cir. 2023), the court held that Section 922(g)(1) was constitutional under the Bruen standard. When applying the Bruen standard, the court relied heavily on the firearm restrictions practiced in colonial America, where classes of dangerous people were prohibited from possessing firearms.[xxviii] In Jackson, the court also considered the federal firearm regulations enacted in the 1960s and the purpose of the statute.[xxix] In Range v. Att’y Gen. United States, 69 F.4th 96 (3d Cir. 2023) (en banc), the court held that Section 922(g)(1) was unconstitutional under Bruen.[xxx] In Range, the court relied on the colonial American practice of forfeiting weapons used to commit a crime without interfering with the offender’s right to bear arms.[xxxi] The court in Range also considered that the 1938 federal firearm statute, which the modern firearm statute is based on, only applied to violent criminals.[xxxii] In the seventh circuit, the courts are creating an analysis to evaluate firearm regulations under Bruen.[xxxiii]
The Bruen analysis leaves a lot of room for interpretation by the court. The courts are faced with the issue of evaluating history and determining whether there were analogous firearm regulations in the period preceding the writing and ratification of the Second Amendment. In Jackson and Range, the government presented the same historical arguments but received different results. The question of constitutionality for firearm regulation has turned from legal interpretation to historical analysis. This shift could have negative implications for the future of Section 922(g). The history of analogous firearm restrictions for all classes that covered persons prohibited under Section 922(g) is scant. The courts in the Fifth Circuit have been particularly active in striking down provisions of Section 922(g).
Like Section 922(g)(1), Section 922(g)(8)’s constitutionality is contested under Bruen. Section 922(g)(8) prohibits people with protection orders related to domestic violence from purchasing or possessing a firearm.[xxxiv] A portion of the Violence Against Women Act (VAWA) clarified that the states had to identify and alert those covered Section 922(g)(8) of the obligation to surrender firearms to the state.[xxxv] In United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), the court held that Section 922(g)(8) was unconstitutional under the Bruen standard.[xxxvi] In Rahimi, the court rejected the government’s historical arguments after deeming their examples not to be “relevantly similar” to Section 922(g)(8).[xxxvii] The court’s holding in Rahimi hinged on the fact that the historical firearm regulations were focused on protecting society at large, not “identified individuals.”[xxxviii]
Section 922(g)(3) prohibits controlled substance users and addicts from possessing or purchasing firearms.[xxxix] Like other provisions of Section 922(g), Section 922(g)(3) has had its constitutionality challenged in the wake of Bruen. In United States v. Connelly, , the court held that Section 922(g)(3) was unconstitutional.[xl] In Connelly, the court rejected the government’s argument that the colonial ban on shooting guns while intoxicated was analogous to Section 922(g)(3).[xli] The court asserted that the intent behind the colonial law and Section 922(g)(3) differed too much since the colonial law was to preserve limited resources to stave off potential threats while Section 922(g)(3) was to keep order in society.[xlii] Without question, Bruen has altered Second Amendment jurisprudence. There is also the potential for Bruen to alter the criminal justice system since many of the statutes used to enforce firearm restrictions are being challenged for lack of basis in historical tradition. After Bruen, criminal defense attorneys started using Bruen motions to get indictments dismissed. While the Bruen motions may not have much success in the present, the Bruen motion serves to preserve the issue so the case may be eligible for reconsideration if the statute is later held unconstitutional. While Bruen is undoubtedly a win for gun rights and Second Amendment originalism, some negative implications are becoming apparent. Some of the protective provisions of Section 922(g) are facing Bruen challenges. Without these provisions, classes of people who are generally considered incapable of possessing and utilizing a firearm in a safe, lawful manner could have legal access to firearms. Ultimately, the fate of these provisions rests in the courts.
[i] U.S. Const. amend. II.
[ii] McDonald v. City of Chi., 561 U.S. 742, 778 (2010) (explaining the historical basis for the right to bear arms as a fundamental right); United States v. Heller, 554 U.S. 570, 595 (2008) (holding that there is “an individual right to keep and bear arms” under the Second Amendment).
[iii] See H.R., B. 272, 2022 Leg., Reg. Sess. 2022. (Ala. 2022); see also Cal. Penal Code § 26150.
[iv] Kevin Newsome, et al., A Closer Look at the Rising Epidemic of Mass Shootings in the United States and Its Association with Gun Legislation, Laws, and Sales, 28 Journal of Surgical Research 103, 104 (2022).
[v] See Heller, 554 U.S. at 595 (stating that the right to bear arms is not unlimited).
[vi] See New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2123 (2022) (explaining that applicants had to meet a strict standard to get a license to carry).
[vii] See id. at 2127 (explaining that the means-end scrutiny analysis was incorrect).
[viii] Id. at 2126 (2022).
[ix] See id. at 2136.
[x] See United States v. Connelly, 2023 WL 2806324, at *15 (W.D. Tex., Apr. 6, 2023) (holding that §§ 922(d)(3) and 922(g)(3) are unconstitutional since they do not align with the Nation’s historical traditions of firearm regulations); United States v. Price, 2022 WL 6968457, at *6 (S.D.W. Va., Oct. 12, 2022) (holding that § 922(k) is unconstitutional because it is not aligned with the Nation’s historical traditions of firearm regulations)
[xi] See Bureau of Alcohol, Tobacco, Firearms and Explosives, Gun Control Act, ATF (Oct. 21, 2022), https://www.atf.gov/rules-and-regulations/gun-control-act.
[xii] See 18 U.S.C. § 922.
[xiii] U.S. Sent’g Comm’n, Overview of Federal Criminal Cases, Fiscal Year 2021, at 4-5 (2021).
[xiv] See U.S. Sent’g Comm’n, 2022 Annual Report and Sourcebook of Federal Sent’g Stat., at 45 (2022); U.S. Sent’g Comm’n, 2021 Annual Report and Sourcebook of Federal Sent’g Stat., at 45 (2021).
[xv] See U.S. Sent’g Comm’n, 2022 Annual Report and Sourcebook of Federal Sent’g Stat., at 46 (2022) (the number of firearm offenses increased from 8,151 in 2021 to 9,318 in 2022).
[xvi] See id. at 217 (2022).
[xvii] See United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) (explaining that laws limiting the Second Amendment rights of felons did “not offend the Second Amendment”); United States v. White, 593 F.3d 1199, 1206 (11 th Cir. 2010) (holding that the Heller doctrine of upholding “longstanding prohibition[s]” on firearm possession applied to § 922(g)(9)).
[xviii] See Range v. Atty. Gen United States, 69 F.4th 96, 99 (3d Cir. 2023) (en banc) (stating that the plaintiff brought an as applied challenge to the statute); United States v. Jackson, 69 F.4th 495, 498-501 (8th Cir. 2023) (stating that the appellee attempted to get the indictment dismissed and appeal his conviction by alleging the statute was unconstitutional).
[xix] See Bureau of Alcohol, Tobacco, Firearms and Explosives, Gun Control Act, ATF, https://www.atf.gov/rules-and-regulations/gun-control-act (last reviewed Oct. 21, 2022).
[xx] See 18 U.S.C. § 922(g).
[xxi] See United States v. Stambaugh, 2022 WL 16936043 (W.D.Okla., 2022) at *6 (holding that § 922(n) is unconstitutional); United States v. Quiroz, 629 F. Supp. 3d 511, 527 (W.D. Tex. 2022) (holding that § 922(n) is unconstitutional); see also United States v. Bartucci, 2023 WL 2189530 at *10 (E.D.Cal., Feb. 23, 2023) (holding that § 922(n) is constitutional under the Bruen standard).
[xxii] See United States v. Bullock, 2022 WL 16649175 at *1 (S.D.Miss., Oct. 27, 2022) (explaining that courts “lack both the methodological and substantive knowledge that historians possess” and struggle with the Bruen analysis).
[xxiii] See 18 U.S.C. § 922(g)(1).
[xxiv] See U.S. Sent’g Comm’n, 2021, Felon in Possession of a Firearm (2021) (Figures showing 7,454 out of 57,287 were § 922(g)(1) convictions).
[xxv] See id.
[xxvi] See id.
[xxvii] See id.
[xxviii] See United States v. Jackson, 69 F.4th 495, 503-504 (8th Cir. 2023) (explaining that the Nation’s history of firearm regulations included disarming certain classes who pose an “unacceptable risk of danger if armed”).
[xxix] See id. at 505 (explaining that the purpose of the statute aligned with historic traditions).
[xxx] See Range v. Atty. Gen. United States, 69 F.4th 96, 98 (3d Cir. 2023) (en banc) (holding that § 922(g)(1) was unconstitutional).
[xxxi] See id. at 105 (explaining that the colonial laws did not prohibit an offender’s future right to bear arms but only took the weapon used to commit the crime).
[xxxii] See id. at 104 (explaining that the 1938 precursor to § 922(g)(1) was not intended to cover a non-violent offender).
[xxxiii] See Atkinson v. Garland, 70 F.4th 1018, 1024 (2023) (explaining the questions that the district should consider when the case is remanded).
[xxxiv] See 18 U.S.C. § 922(g)(8).
[xxxv] See Congressional Research Service, The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization, at 27 (2019).
[xxxvi] See United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023) (holding that 922(g)(8) was unconstitutional on its face).
[xxxvii] See id. at 456.
[xxxviii] See id. at 459 (explaining that there was no analogous historical firearm statute to support § 922(g)(8)’s constitutionality).
[xxxix] See 18 U.S.C. § 922(g)(3).
[xl] See United States v. Connelly, 2023 WL 2806324 at *11 (W.D.Tex., Apr. 6, 2023).
[xli] Id. at *6.
[xlii] Id.
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