The Decision that Made Judges Historians: How Bruen’s Historical Inquiry Has Left Judges Inconsistent and With “Low” Confidence

Blog Post | 111 KY. L. J. ONLINE | January 31, 2022

The Decision that Made Judges Historians: How Bruen’s Historical Inquiry Has Left Judges Inconsistent and With “Low” Confidence

By: Celina Saylor, Staff Editor, Vol. 111

The last Supreme Court session brought some of the most controversial rulings in recent times. One of those was the Court’s ruling in New York State Rifle and Pistol Ass’n v. Bruen.[1] Bruen clarified the two-step test under which regulations of Second Amendment rights are to be evaluated, looking at first, if the conduct is covered by the plain text of the Second Amendment, and second if there is a historical tradition of such a firearm regulation in this Nation.[2] This test, although consistent with Heller[3], has recently caused federal judges to reach inconsistent holdings regarding the constitutionality of certain 18 U.S.C. § 922 provisions.[4] While the first step of the test does not seem to be the strongest point of contention among judges, the disparities in the historical traditional step of the test begs the question as to whether judges are applying the test correctly at all.

            Judges have always had to grapple with history when making their decisions, and history has long been a benchmark of judicial interpretation. Bruen, however, often requires that history be the chief criterion for which courts are to base their decision.[5] This can present an issue given that the historical tradition required by Bruen is one present at the time of the founding, or one that is “relevantly similar” to such.[6] As a result, judges are tasked with trying to find proper historical analogs for the firearm regulations before them.[7] The real problem arises when judges are asked to determine if the modern-day regulation being argued is “materially different” from the solution to the earlier, albeit the same, societal problem.

One great example of how judges, when looking at the same modern-day regulation, can take the exact same historical regulation and find it to either be “materially different” or a proper analog is illustrated through the differing opinions of United States v. Stambaugh and United States v. Kays. Both cases come from the Western District of Oklahoma and are concerned with the constitutionality of § 922(n), the statute that prohibits persons under indictment from receiving a firearm.[8] Further, both cases found the conduct, the receipt of a firearm, to be protected under the Second Amendment.[9] Additionally, when performing the historical analysis, both cases turned on whether the surety laws were the proper analog.[10] The surety laws required a person “reasonably likely to ‘breach the peace’ and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm.”[11]

In Stambaugh, the court found that the process, burden, and means of the surety laws were “fundamentally different” from § 922(n) since the surety laws did not completely restrict the person’s constitutional right.[12] Further, the court reasoned that the individual could prove a need for self-defense or if unable to prove such, could merely post a bond whereas § 922(n) restricts the receipt of firearms entirely.[13] Contrary, in Kays, the court found the surety laws to be more restrictive than § 922(n) since the former required a showing of “special need” before posting a bond to carry and § 922(n) does not restrict individuals under indictment from carrying.[14] Thus, the same modern-day regulation and the same historical firearm tradition can lead judges in the very same district to different conclusions under Bruen.

The inconsistency of these cases across the District Courts is troublesome but, what is more, troublesome and really identifies the problem that these courts are facing is outlined in the opinion of United States v. Kelly.[15] This court ultimately found § 922(n) unconstitutional, however, in its opinion, it made clear it had “low” confidence in its holding.[16] There, the court notes that the “administrability” of the Bruen test is rather speculative until precedent occurs.[17] Further, the court noted that Bruen, while laying out a distinct test, left “common sense reasoning” to fill in the “historical gaps.”[18] Kelly clearly denotes the issues that arise with judges applying Bruen. These judges are unsure as to what to do, how to fill in “historical gaps,”[19] and are making rulings on constitutional rights with “low confidence” in their opinions[20], waiting on the Supreme Court to go behind them and resolve the issues. Bruen was supposed to clarify Heller and to define the standard for Second Amendment claims, instead it has left judges perplexed and making “judgment calls” about history.[21]

[1] New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111, 2122 (2022).

[2] Id. at 2126.

[3] District of Columbia v. Heller, 554 U.S. 570, 573 (2008).

[4] See United States v. Quiroz, 2022 WL 4352482 (W.D.Tex., Sep. 19, 2022) (holding that § 922(n), the statute criminalizing persons under indictment from purchasing weapons, is unconstitutional); United States v. Kays, 2022 WL 3718519 (W.D.Okla., Aug. 29, 2022) (holding that § 922(n) is constitutional); United States v. Price, 2022 WL 6968457 (S.W.D.W.Va., Oct. 12, 2022) (holding that § 922(k), which prohibits the possession of a firearm with an altered, obliterated, or removed serial number, as being unconstitutional); United States v. Holden, 2022 WL 16701935 (N.D.Tex., Nov. 3, 2022) (holding § 922(k) to be constitutional).

[5] Bruen, 142 S.Ct. at 2126.

[6]  Id. at 2132.

[7] Id. at 2132-33.

[8] 18 U.S.C.A § 922(n) (West 2022); Stambaugh, 2022 WL 16936043 at *2-3; Kays, 2022 WL 3718519 at *5.

[9] Stambaugh, 2022 WL 16936043 at *2-3; Kays, 2022 WL 3718519 at *5.

[10] Stambaugh, 2022 WL 16936043 at *6; Kays, 2022 WL 3718519 at *9-11.

[11] Bruen, 142 S.Ct. at 2148.

[12] Stambaugh, 2022 WL 4352482 at *5.

[13] 2022 WL 4352482 at *5.

[14] Kays, 2022 WL 3718519 at *11.

[15] 2022 WL 17336578 (M.D.Tenn. Nov. 16, 2022).

[16] Id. at *6.

[17] Id.

[18] Id.

[19] See id.

[20] See id.

[21] Id. at *5.