Analysis: What to Expect on Guns in 2023

2022 was a watershed year for gun politics in America.

The U.S. Supreme Court heard and decided its first consequential Second Amendment case in over a decade and recognized for the first time a right to carry a firearm in public for self-defense. It also finally established the specific legal test lower courts must use when reviewing gun cases, a text and history-based standard that many gun-rights advocates hope can be used to overturn restrictive modern gun laws.

At the same, horrific mass shootings like the one at an elementary school in Uvalde, Texas, created a sudden groundswell of support for new gun laws midway through the year. That ultimately led to the passage of the first federal gun restrictions in nearly three decades, with bipartisan support.

Both sides of the American gun debate achieved significant victories in 2022 and will be looking to capitalize on that momentum in the new year. Here’s a look at what to expect on guns in 2023.

Second Amendment Litigation

The Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen opened the floodgates on legal challenges to all kinds of gun restrictions. Animated by the Court’s new test for gun cases, gun-rights groups filed a bevy of lawsuits across the country in 2022. Expect that trend to continue in 2023.

While it would be nearly impossible to document the several dozen cases expected to arise in the new year, there are certainly some big ones to watch. Those include the ongoing challenges to New York and New Jersey’s Bruen-response bills. The resolution of those cases will determine how far states can push the limits of the Supreme Court’s holding in Bruen. That will impact the residents of each respective state who hope to carry a firearm for self-defense and the expected copycat measure likely coming from California.

The New York cases, in particular, will also test the willingness of the High Court to superintend its own decision. After several injunctions against the New York law were stayed by the Second Circuit, gun-rights advocates filed an emergency request with the Supreme Court to vacate the stays. Justice Sonya Sotomayer, who oversees the Second Circuit, is requiring New York to respond by January 3rd.

How the Court decides to rule in this matter could provide insight into how active it intends to be on gun cases moving forward.

Other significant cases include the ones against Maryland’s assault weapon ban and California’s magazine ban/confiscation law. Both cases were granted, vacated, and remanded by the Supreme Court to be revisited in light of the Bruen decision. The outcome of those challenges will provide test cases for how lower courts previously favorable towards gun bans will respond to the Court’s new test.

Lastly, the state and federal challenges to Oregon’s new gun-control ballot measure will be worth keeping an eye on. The cases could provide the first high-profile test of the legality of permit-to-purchase laws under the Supreme Court’s text and historical tradition standard, an interesting question in light of Justices Kavanaugh and Roberts defending the constitutionality of shall-issue gun-carry permitting in a Bruen concurrence.

State-Level Gun-Control Push

As the Supreme Court’s decision in Bruen has reinvigorated the gun-rights movement’s litigation efforts, so too has it inspired a renewed push among gun-control advocates on the legislative front.

In traditionally blue states, as well as in some purple states where Democrats currently have political control, expect to see a big push for new gun-control laws.

In California, for instance, expect lawmakers to deliver on their promise to reintroduce and pass their Bruen-response bill that failed to get over the finish line in August 2022. That would make California the third state, after New York and New Jersey, to pass a sweeping and restrictive overhaul of its concealed-carry laws as a rebuke of the Supreme Court.

If introduced and passed in the same form as the last bill, it will raise the minimum age to carry from 18 to 21, require at least 16 hours of firearms training, and add a subjective “good character” standard that will require at least three personal references and a social media check. It will also add dozens of new “sensitive areas” where licensed gun owners would not be allowed to carry, including all school grounds, college and university campuses, government and judicial buildings, medical facilities, public transit, public parks, playgrounds, public demonstrations, and any place where alcohol is sold.

In other states, expect things like “assault weapon” bans and red flag laws to get new pushes.

Illinois lawmakers are already debating a gun-control package that would ban the sale and possession of assault weapons, ban magazines capable of holding more than ten rounds, prohibit 18-20-year-olds from purchasing firearms, and extend the state’s “red flag” period from 6 months to one year. The bill was one of Governor J.B. Pritzker’s (D.) legislative promises after winning reelection, and state lawmakers expect to hold a final vote on the legislation in the new year.

Likewise, both the Governor and Attorney General of Washington state have promised to work on getting an assault weapons ban and a permit-to-purchase requirement passed when the state’s legislative session begins in January.

In Colorado, an expansion of the state’s existing red flag law is likely, as is a measure to raise the age to purchase AR-15s and similar rifles. An outright ban on those rifles, as well as unserialized guns, is not off the table either when the state assembly reconvenes in early January.

Newly secured state government trifectas for Democrats in Michigan and Minnesota also present fertile ground for new gun-control laws. Democratic lawmakers in both states have already said that passing red flag laws will be among their top priorities.

And finally, the state of Vermont will be one to watch for possible movement on the state’s preemption law. Many of the state’s cities and towns have been publicly calling for the ability to regulate firearms locally, which is currently prohibited by Vermont’s Sportsman’s Bill of Rights.

Vermont voters just chose to reelect Republican Governor Phil Scott, which makes the prospect of a preemption repeal bill more difficult. But Democrats currently hold veto-proof majorities in the state legislature, so repeal is not unthinkable. If successful, Vermont would become just the second state to ever repeal a firearm preemption law after Colorado in 2021.

ATF Rulemaking

We should finally get clarity on the second of President Biden’s major executive actions on guns early in the new year. In a joint status report from an ongoing lawsuit with the Second Amendment Foundation, the ATF reported that it was pushing back the release of its final pistol brace rule to some time in January of 2023. Originally the rule was supposed to be published by August 2022.

The final text of the rule will be of keen interest to the millions of gun owners who currently possess the popular firearm accessory. If the final rule strictly interprets pistol braces as National Firearms Act (NFA) items, the ATF could turn millions of Americans into felons for simply owning something they lawfully purchased.

An aggressive interpretation of the new rule appears more likely than ever after the ATF sent gun dealers a letter this week expanding its interpretation of what constitutes a regulated firearm frame or receiver to unfinished parts even when sold outside of kits.

Look for these new rules to generate lengthy legal battles as well.

Carry Legislation/Pro-Gun Bills 

Carry rights are poised to play a significant role in other states beyond those trying to retaliate against the Supreme Court. Expect the push for permitless carry to continue in the remaining shall-issue states with unified or near-unified Republican control.

That includes Florida, where Governor Ron DeSantis (R.) just won a resounding reelection victory, and Republicans took supermajority control of the state legislature. After voicing support for it in the past, DeSantis is already promising to get a bill across the finish line this upcoming session.

“Basically, this was something that I’ve always supported,” he told the Tampa Bay Times. “The last two years, it was not necessarily a priority for the legislative leadership. But we’ve been talking about it, and [House Speaker Renner (R.)] pledged publicly that’s moving forward, and it’ll be something that will be done in the regular session.”

South Carolina and Nebraska also have a solid shot of joining the move to permitless carry in 2023. In South Carolina, where Republicans hold trifecta control of the state government, a state senator has already introduced a permitless carry bill for consideration when the legislature reconvenes in January.

In Nebraska, a 2022 permitless carry bill narrowly failed in the state’s unicameral legislature after falling just two votes short of overcoming a Democratic filibuster. However, state Republicans made gains in the chamber this November and now have a filibuster-proof majority, clearing the way for a successful reattempt in 2023.

The past year was undoubtedly chock full of significant milestones that moved the needle in American gun politics. It’s already looking like 2023 could be similarly consequential.