This guest post does not necessarily reflect the views of the Duke Center for Firearms Law.
With the right to bear arms established as fundamental and the originalist constitutional framework in place, the development of the Bruen test is the next jurisprudential frontier. United State v. Hemani and Wolford v. Lopez engaged with different evidentiary aspects of the test, resulting in opinions that are expanding the understanding of the Bruen metrics. In its analysis, the Court shed some light on how precisely similar historical analogues must be to demonstrate an American history and tradition of a given firearm restriction.
The Hemani Court spent considerable time discussing the ways that the government produced historical analogues were not comparable to the challenged statute, 18 U.S.C. § 922(g)(3), a federal statute disarming an “unlawful drug abuser.” In doing so, it both expanded the range of acceptable types of evidence while simultaneously requiring a tighter connection between the purpose of the historical principle and the intent underlying the modern regulation. First, the Hemani Court relied heavily on secondary sources to establish founding era practices, therefore enlarging the scope of allowable evidence used to establish an American history and tradition. In Hemani, the government produced post-ratification historical drunkard laws arguing they were relevantly similar to 18 U.S.C. § 922(g)(3). In analyzing the meaning of these laws “the Hemani Court looked to the same time period to show that “drunkard” was understood as one that excessively drank to incompetence and thus was not necessarily relevantly similar to the contemporary law’s unlawful drug abuser provision. But to show that “drunkard” held the same meaning (drinking to a state of incompetence) at the founding, the Court relied almost entirely on historical evidence outside of the customary legal, regulatory, and ideological kind to demonstrate an American tradition of “a culture of copious drinking.” It cited only secondary sources with anecdotal references to the drinking habits of some notable Founding Fathers, including John Adams, James Madison, and Thomas Jefferson. The use of this type of evidence to support a conclusion of a national tradition during the founding era broadens the scope of the evidentiary landscape. Using primarily secondary sources allows for a more relaxed approach to establish an American history and tradition while also loosening the seeming inelasticity of the historical analogue required by Bruen at Step 2.
At the same time, the Hemani Court strictly applied the “why” analysis. It analyzed the purpose of historical habitual drunkard laws and found that they “differ[ed] “dramatically” from § 922(g)(3) on “every single metric.” Looking at vagrancy laws, the Court determined that the regulatory intent was to target groups that “did not meet the societal expectation of work.” Section § 922(g)(3) on the other hand, and as the government argued, was meant to protect the public from a category of potentially violent and armed individuals that regularly use intoxicants. Though habitual drunkards were included in the list of historically targeted groups under the statute, the Court concluded that the purpose of the regulation was to penalize vice and idleness as opposed to protecting the public safety. The historical the civil commitment rules and surety regulations, also relied on historical analogues by the government, were too considered incomparable to § 922(g)(3) by the Court. The purpose of these historical regulations was too attenuated from the modern statute’s intent to find them relevantly similar. The Court instead required a more precise match.
Wolford v. Lopez addressed the historical analogue requirement but in a different way. Wolford found support for its dismissal of two of Hawaii’s historical analogues in the pronouncement made in Heller and reiterated in Bruen that outlier historical laws were more-or-less inconsequential to the Court’s interpretation of the Second Amendment. The Heller Court declared that it would not “stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to bear arms for defense…” Bruen followed suit, finding two state court opinions offered by the government as outliers and therefore irrelevant to determining whether an American tradition of public carry regulation existed. The Wolford Court repeated the outlier principle. Hawaii produced two historical analogues that the Court very quickly dismissed as “not relevant” because they were considered outlier statutes: an 1863 Oregon law, described as a “lone statute adopted nearly a century after the adoption of the Second Amendment and well after the adoption of the Fourteenth Amendment,” and an 1865 Louisiana statute adopted as part of the Black Codes (and was therefore “tainted”) that the Court alleged were was not “widespread” or “widely accepted” enough to be considered constitutionally relevant.
In terms of the “how” prong of Bruen, the Court analyzes the procedure (or lack thereof) provided before the deprivation of the right is imposed or before the right can be exercised. The Hemani Court underscored the lifetime disarmament penalty under § 922(g)(3) without a pre-deprivation process in place. It closely reviewed the surety of the peace and habitual drunkard analogues observing that these historical laws provided process prior to disarming an individual. How disarmament was achieved historically was thus quite distinct from the modern statute, making the analogues incomparable to the burden imposed by § 922(g)(3). The “how” differential made the historical analogues too dissimilar from the contemporary regulation to be considered relevant under Bruen.
In Wolford, the Court reviewed the procedure required before Americans were able to exercise the right to bear arms. It examined the operationalization of the default no-carry rule on private owners and heavily scrutinized the general gun licensing process and its “rigorous requirements” to secure a carry-permit. Just as significant, the Wolford Court took a hard look at the impact of the regulation on the burden of the right to defend oneself in public. The Court recited the story of Jaime Caetano, the victim of domestic violence who used a non-lethal weapon to ward off her abusive ex-boyfriend only to be later prosecuted under a statute like the Hawaiian law. It used the Caetano narrative as a backdrop to a series of hypotheticals demonstrating the burden of the Hawaiian law on those needing to exercise a right to armed self-defense in public places such as a gas station or a fast-food restaurant.
With Hemani and Wolford working through the evidentiary complexities of the new test, the Court further developed the jurisprudence around the “why” and “how” prongs of Bruen. The opinions provided substance to central concepts, such as “historical analogue,” and “relevantly similar,” which form the core of the Bruen framework. By putting doctrinal meat on the bones of the test, the Court is relaying its evidentiary expectations and revealing its overall posture as to the right to bear arms.
