In 2022 the Supreme Court recognized for the first time a constitutional right under the Second
What firearms licensing regimes remain acceptable after Bruen? Bruen overturned licensing schemes that relied on non-objective, discretionary criteria for whether licenses could issue (so-called “may issue” regimes). This November, the federal Fourth Circuit Court of Appeals issued a 2-1 decision in Maryland Shall Issue v. Moore, applying Bruen to invalidate the firearms licensing scheme in Maryland. Maryland’s scheme relied on objective criteria (a so-called “shall issue” system) and thus observers initially assumed it would survive Bruen. The system, however, was somewhat complex: in addition to a registration process for each firearm and a process for obtaining a carry permit, Maryland required would-be gun-owners to obtain a “handgun qualification license” that required finger-printing, to take a four-hour training course, and to wait up to 30 days for approval. For two Republican-appointed judges on the Fourth Circuit, this went too far to comply with Bruen’s recognition of a fundamental right to carry firearms, despite suggestions in Bruen that requiring background checks and safety courses was still acceptable. Maryland has petitioned the Fourth Circuit to rehear the case before the entire court. In the meantime, the decision suggests that the licensing scheme in Massachusetts, although recently revised to be made into a “shall issue” system to comply with Bruen, could still be vulnerable to challenge.
Another issue concerns the carrying of firearms across state lines. Massachusetts’ gun laws are quite strict, while some of its very nearby neighbors have extremely relaxed legal regimes. For instance, G.L. c. 269, § 10(a), the Massachusetts law punishing carrying a firearm without a license, imposes a mandatory minimum prison sentence of eighteen months. In New Hampshire, by contrast, less than an hour north of Boston, carrying a firearm in public without a license is completely legal. In August of this year, a state District Court judge in Lowell dismissed carrying charges on the grounds that the defendant was a legal resident of New Hampshire. The judge reasoned that the ability to exercise a fundamental constitutional right could not shift so dramatically just because the defendant crossed a state line. The Commonwealth has appealed the ruling to the Appeals Court, where the case is currently pending.
Finally, what weapons does the Second Amendment applies to? Bruen articulated a general two-prong test for regulations of weapons: first, a court must decide whether a regulation applied to conduct protected by the Second Amendment, then the government must supply evidence of a historical tradition of such regulations. Courts must now decide how to apply this test to regulations of weapons other than handguns—a task that often involves complex historical inquiries. In a pair of cases in California, a single federal District Court Judge has applied the Bruen test to invalidate that state’s long-standing bans on assault weapons and large capacity magazines. Both of these are also illegal under Massachusetts state law, and in 2018 the Supreme Judicial Court (SJC) upheld these bans as constitutional under previous Supreme Court precedent, according to which the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” It is unclear whether Bruen could require revisiting this analysis. More unusual arms are also at issue. In 2018, the SJC, following a Supreme Court ruling, recognized that stun guns are arms that cannot be banned under the Second Amendment. This month, the SJC heard an appeal on the question of whether switchblade knives (currently subject to an absolute ban in Massachusetts, violations of which can be punished by jail time) are protected arms. The SJC seemed inclined to remand the case so that the trial court could gather more evidence about the historical regulation of knives.
The law, in short, is rapidly evolving. And the Supreme Court is not done, either: in November, the Justices heard a challenge to a federal law banning the possession of firearms by persons subject to restraining orders due to domestic violence. The decision in that case, United States v. Rahimi, is not expected until next year, but will doubtless include important guidance about the scope of the rights protected by the Second Amendment. In the meantime, criminal defendants have a growing variety of potential constitutional challenges that can be raised to statutes that criminalize the possession of firearms and other weapons
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