Opinion
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The Struggle
In the post-Bruen legal landscape, courts have been grappling with how to interpret the Second Amendment under new guidelines set by the Supreme Court. Our friend Mark W. Smith, a prominent legal scholar, points out in his paper, ‘Dangerous, but not Unusual: Mistakes Commonly Made by Courts in Post-Bruen Litigation’ (embedded below) that many courts are still making key errors in applying Bruen’s principles.
Smith identifies common judicial missteps, highlighting how these mistakes complicate the fight for Second Amendment rights.
Understanding the “In Common Use” Test
One of Smith’s central arguments is that lower courts often misunderstand or disregard the “in common use” test, which the Supreme Court established in District of Columbia v. Heller. This test states that the Second Amendment protects weapons commonly used by law-abiding citizens for lawful purposes. The test applies regardless of when a weapon was invented, meaning that modern firearms are protected even if they didn’t exist during the Founding Era.
Smith argues that this misunderstanding leads some courts to focus incorrectly on a weapon’s “dangerousness” rather than its widespread use among lawful citizens.
The Challenge of Historical Analogies
The Bruen ruling mandates that any gun regulation must be in line with America’s historical tradition of firearm regulation. Smith points out that lower courts frequently draw inappropriate historical comparisons to justify modern regulations. For example, some have tried to compare today’s handgun bans to historical gunpowder storage laws, which were about fire safety rather than criminal control.
As Smith emphasizes, it’s not enough to find any old law related to firearms; courts must ensure that the historical reasoning aligns closely with the purpose of the modern regulation.
Sensitive Places & Licensing: Blurred Boundaries
Smith also tackles the contentious issue of “sensitive places” —locations where firearms might be restricted. Some courts have been quick to broaden this category, interpreting it to include places where people gather in large numbers. Smith cautions that this interpretation risks overreaching, as it doesn’t reflect historical restrictions. He uses airports as an example, where firearms may be restricted in secure zones but not across the entire premises.
On licensing, Smith differentiates between “shall issue” and “may issue” systems. While “shall issue” systems require officials to issue permits if applicants meet certain criteria, “may issue” systems grant authorities discretion to deny permits even to eligible applicants.
Smith warns that this discretion can undermine the right to bear arms and that Bruen’s ruling clearly questions such subjective limitations.
Racial & Discriminatory Precedents: A Slippery Slope
One of the more troubling missteps Smith highlights is the reliance on outdated, discriminatory laws as justification for modern gun control. Some courts have cited old statutes that disarmed marginalized groups, but Smith argues that these discriminatory laws should never serve as a basis for today’s regulations. The Bruen decision explicitly advises against using racially prejudiced laws, underscoring that historical practices must reflect inclusive constitutional values.
The Role of Taxes: An Emerging Legal Battle
An unexpected but significant post-Bruen question involves taxes on guns and ammunition. Smith suggests these taxes could become a flashpoint, as they raise questions about whether taxes are an indirect method to dissuade firearm ownership. Critics argue that excessive taxes could make gun ownership unaffordable for some, effectively infringing on Second Amendment rights.
Courts are now weighing whether such taxes are reasonable regulations or unconstitutional barriers.
Continuing the Fight: Ongoing Conversations & Legal Clarity
As Smith’s analysis shows, the implications of the Bruen ruling are still unfolding. Each new case challenges courts to faithfully apply Bruen’s guidelines and avoid past mistakes. Smith’s work underscores the importance of understanding both the text of the Second Amendment and the historical context in which it was adopted. With ongoing debates and legal challenges, the question remains: Will courts fully honor the original intent of the Second Amendment?
Engaging in this dialogue with open minds and critical thinking will be essential for the future of Second Amendment jurisprudence.
Dangerous, but not Unusual: Mistakes Commonly Made by Courts in Post-Bruen Litigation MARK W. SMITH*
