{"id":116097,"date":"2026-04-08T12:55:45","date_gmt":"2026-04-08T17:55:45","guid":{"rendered":"https:\/\/milesfortis.com\/?p=116097"},"modified":"2026-04-08T12:55:45","modified_gmt":"2026-04-08T17:55:45","slug":"116097","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=116097","title":{"rendered":""},"content":{"rendered":"

The who, what, and where of gun control<\/a><\/p>\n

A Second Opinion\u00a0<\/a>is a recurring series by\u00a0Haley Proctor<\/a>\u00a0on the Second Amendment and constitutional litigation.<\/em><\/p>\n

My previous\u00a0column<\/a>\u00a0examined what it means for a gun control measure to fit within \u201cthe Nation\u2019s historical tradition of firearm regulation.\u201d This month I want to focus on how the court has analyzed gun regulations that limit (1)\u00a0who\u00a0<\/em>may possess a firearm, (2)\u00a0what\u00a0<\/em>arms people may own or carry, and (3)\u00a0where\u00a0<\/em>they may take them.<\/p>\n

Who<\/em>\u00a0may keep and bear arms?<\/strong><\/p>\n

As of writing, the court\u2019s latest word on the Second Amendment concerns the \u201cwho\u201d of gun control: may the government permissibly restrict the ability of certain types of people to keep and bear arms? The court provided important guidance on that question in the 2024 case of\u00a0United States v. Rahimi<\/em><\/a>, but significant questions remain open.<\/p>\n

The Second Amendment secures to \u201cthe people\u201d the right \u201cto keep and bear Arms.\u201d In\u00a0District of Columbia v. Heller<\/em><\/a>, the court held that \u201cthe people\u201d refers \u201cto all members of the political community, not an unspecified subset.\u201d This means that the \u201cplain text\u201d contains no limitation on the right that would permit the government to deprive some category of persons of firearms without meeting its burden to show that the deprivation is consistent with the \u201cNation\u2019s historical tradition of firearm regulation.\u201d<\/p>\n

The court has occasionally used the phrase \u201claw-abiding, responsible citizens<\/a>\u201d to describe \u201cthe class of ordinary citizens who undoubtedly enjoy the Second Amendment right<\/a>.\u201d Some have inferred that this phrase limits the category of people who may assert a Second Amendment right. The court\u2019s decision in\u00a0Rahimi\u00a0<\/em>made clear that this reading was mistaken. If the government wishes to limit the ability of any \u201cmember[\u00a0] of the political community\u201d to keep or bear arms \u2013 even those who break the law or might be thought to be irresponsible \u2013 it must point to a historical tradition that justifies doing so.<\/p>\n

Rahimi<\/em>\u00a0recognized a historical tradition that \u201callows the Government to disarm individuals who present a credible threat to the physical safety of others,\u201d \u201ctemporarily.\u201d\u00a0 And it identified one group of individuals who the government may disarm consistent with that tradition: individuals presently under a restraining order issued upon a finding that the recipient poses \u201ca credible threat to the physical safety\u201d of another.<\/p>\n

This term, the court has taken up the \u201cwho\u201d question once more. The case of\u00a0United States v. Hemani<\/em><\/a>\u00a0requires it to decide whether the same tradition permits the government to disarm individuals who unlawfully use drugs. Several additional \u201cwho\u201d questions are in the offing.<\/p>\n

First, despite\u00a0Heller<\/em>\u2019s holding that the \u201cpeople\u201d includes \u201call members of the political community,\u201d and despite the fact that 18-to-20 year-olds are undoubtedly part of the political community (and many shoulder the\u00a0responsibility<\/em>\u00a0to bear arms for that community), some courts have continued to hold that they are not part of the \u201cpeople\u201d who enjoy a\u00a0right\u00a0<\/em>to keep and bear arms. These courts have therefore rejected challenges to laws restricting adults\u2019 ability to purchase or carry firearms until they reach the age of 21. There is a circuit split on this question, and the\u00a0 court has been holding\u00a0several<\/a>\u00a0petitions<\/a>\u00a0since<\/a>\u00a0November<\/a>. It could be that the court plans to\u00a0grant, vacate, and remand<\/a>\u00a0these cases in light of\u00a0Hemani<\/em>, but given that they focus on the meaning of \u201cpeople\u201d and a different aspect of the historical regulatory tradition, it\u2019s doubtful that\u00a0Hemani<\/em>\u00a0will supply much guidance.<\/p>\n

<\/p>\n

Another significant question is whether the government may disarm felons. A federal\u00a0statute<\/a>\u00a0prohibits \u201cany person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year\u201d from possessing a firearm. Justice Amy Coney Barrett is already on record\u00a0opining<\/a>\u00a0that this statute is unconstitutional as applied to individuals convicted of non-violent crimes. (After all, the historical tradition recognized in\u00a0Rahimi<\/em>\u00a0extends only to dangerous individuals.) Several\u00a0lower<\/a>\u00a0courts<\/a>\u00a0have agreed.<\/p>\n

There is a well-developed\u00a0circuit split<\/a>\u00a0on the question, with many cert petitions currently pending at the court. Still, the justices may opt to wait and see how the lower courts decide cases in the wake of whatever guidance it provides in\u00a0Hemani<\/em>. The United States has been selective about seeking the Supreme Court\u2019s review in the felon cases it has lost in the lower courts, largely limiting itself to decisions involving\u00a0drug<\/a>\u00a0use<\/a>\u00a0(most likely to be affected by the decision in\u00a0Hemani<\/em>). The United States has also\u00a0argued<\/a>\u00a0that the court should await the results of a\u00a0process<\/a>\u00a0it is instituting under a federal statute that allows the government to restore felons\u2019 gun rights as a form of clemency. And the court\u00a0denied<\/a>\u00a0more than a dozen petitions by felons last month.<\/p>\n

What<\/em>\u00a0arms may the people keep and bear?<\/strong><\/p>\n

District of Columbia v. Heller<\/em>, the case that started it all, was a \u201cwhat\u201d case. It held that \u201cArms\u201d means \u201cweapons of offence, or armour of defence.\u201d And it recognized a historical tradition of banning \u201cdangerous and unusual\u201d weapons \u2013 that is, weapons that are not in \u201ccommon use\u201d for lawful purposes. Because handguns are in \u201ccommon use\u201d for lawful purposes like self-defense, Washington, D.C. could not meet its burden to justify its handgun ban.<\/p>\n

Just last month, D.C. once again fell short \u2013 this time, in trying to justify its ban on magazines capable of holding more than 10 rounds of ammunition. The District of Columbia Court of Appeals (D.C.\u2019s highest court)\u00a0held<\/a>\u00a0that the ban violates the Second Amendment because magazines are bearable arms that are in common use for lawful purposes. In doing so, it\u00a0split<\/a>\u00a0from the U.S. Courts of Appeals for the 1st, 2nd, 7th, 9th, and D.C. Circuits, as well as the Washington Supreme Court, all of which have upheld magazine bans. (The 9th Circuit\u2019s decision received a lot of attention for Judge Lawrence Van Dyke\u2019s\u00a0video<\/a>\u00a0dissent.) Petitions to review the decisions of the\u00a02nd<\/a>\u00a0and\u00a09th<\/a>\u00a0Circuits and the\u00a0Washington Supreme Court<\/a>\u00a0are currently pending, and the court has\u00a0relisted<\/a>\u00a0all of them.<\/p>\n

It would seem to follow\u00a0inexorably<\/a>\u00a0from\u00a0Heller\u00a0<\/em>that outright bans on arms that are in common use for lawful purposes are unconstitutional. (Indeed, the Supreme Court once summarily reversed the Supreme Judicial Court of Massachusetts for failing to follow this straightforward test in a\u00a0case<\/a>\u00a0involving stun guns.) The split on magazine bans is perhaps explicable due to the confusion surrounding magazines\u2019 status as an \u201carm,\u201d on par with handguns. (Magazines, no less than triggers, are parts of the arm and thus protected.)<\/p>\n

Less explicable is the general agreement among lower courts that outright bans on certain semiautomatic rifles (like AR-15s) are permissible. Though no split has yet developed, the court recently recognized that \u201cthe AR-15 is the most popular rifle in the country<\/a>,\u201d and Justice Brett Kavanaugh\u00a0signaled<\/a>\u00a0last year that the court \u201cshould and presumably will address the AR-15 issue soon, in the next Term or two.\u201d Several petitions stand\u00a0ready<\/a>\u00a0and<\/a>\u00a0waiting<\/a>.<\/p>\n

When the court takes the issue up, the case will enable the court to settle\u00a0confusion<\/a>\u00a0in lower courts about whether the \u201ccommon use\u201d inquiry occurs at the \u201cplain text\u201d step of its prescribed Second Amendment inquiry (where the rights claimant bears the burden to show that a constitutional right is in play), or, as in\u00a0Heller<\/em>, at the \u201chistorical tradition\u201d step (where the burden is on the government to show a historical basis for the regulation). The case will also present a good opportunity for the court to explain the \u201clawful purposes\u201d for which arms may be used. One common refrain in AR-15 cases is that they are not as useful for self-defense, the lawful use (of handguns) on which\u00a0Heller\u00a0<\/em>focused. Leaving aside the\u00a0truth<\/a>\u00a0of that assertion \u2013 arms are \u201cused\u201d for self-defense even (perhaps especially) when the owner never discharges them \u2013 they are unquestionably useful and used for other lawful purposes, including training with arms in order to stand ready to bear them for the\u00a0common\u00a0<\/em>defense. As law professor Robert Leider has\u00a0argued<\/a>, this is a central purpose for which the Second Amendment protected the right.<\/p>\n

Where<\/em>\u00a0may the people keep and bear arms?<\/strong><\/p>\n

The 2022 case of\u00a0New York State Rifle & Pistol Association v. Bruen<\/em><\/a>, which gave us the framework courts currently use to adjudicate Second Amendment challenges, was a \u201cwhere\u201d case. After\u00a0Heller<\/em>\u00a0recognized an individual right to own firearms,\u00a0Bruen\u00a0<\/em>recognized that that right extends outside the home.<\/p>\n

Although the court has suggested in dicta that the government may be able to limit where people carry arms \u2013 e.g., keeping them out of \u201csensitive places\u201d like courthouses \u2013 it has provided less concrete guidance on the \u201cwhere\u201d question. That is because the law at issue in\u00a0Bruen<\/em>\u00a0prohibited carrying arms\u00a0anywhere<\/em>\u00a0(without a special showing of need).<\/p>\n

The court has taken up another \u201cwhere\u201d case this term, in\u00a0Wolford v. Lopez<\/em><\/a>, which concerns a Hawaii law that prohibits carrying firearms on private property held open to the public without the owner\u2019s express permission. Only a few states have enacted such laws (and only recently), having previously relied on carriage limits of the sort invalidated in\u00a0Bruen<\/em>. Hawaii\u2019s law is like the one at issue in\u00a0Bruen\u00a0<\/em>in the sense that its effect (especially in combination with extensive \u201csensitive place\u201d restrictions) is to make it incredibly difficult, if not practically impossible, to carry firearms in public. For that reason, it is not clear that the court\u2019s decision will provide much guidance on more typical \u201csensitive place\u201d laws like those banning firearms in parks or on public transportation.<\/p>\n

Meanwhile, lower court decisions on \u201csensitive place\u201d laws are all over the map. They uniformly recognize that the government may ban firearms from sensitive places but disagree on what makes a place \u201csensitive.\u201d Nevertheless, the court has\u00a0denied<\/a>\u00a0both<\/a>\u00a0of the \u201csensitive place\u201d petitions filed so far this term (one about parks, and the other about public transportation).<\/p>\n

* * *<\/p>\n

Historically, the court\u2019s approach to the Second Amendment has been tentative. The court did not address the Second Amendment for decades after the 1939 case of\u00a0United States v. Miller<\/em><\/a>\u00a0(upholding a conviction for transporting unregistered sawed-off shotguns), even as it aggressively enforced other rights.\u00a0Heller<\/em>, decided in 2008, was followed two years later by\u00a0McDonald v. City of Chicago<\/em><\/a>\u00a0(holding that state and local governments must also respect the right to keep and bear arms), and then by more than a decade of near silence. After\u00a0Bruen\u00a0<\/em>in 2022,\u00a0<\/em>and again after\u00a0Rahimi\u00a0<\/em>in 2024, the court sent many cases back to the lower courts for reconsideration in light of those decisions.<\/p>\n

Now that the framework is in place, however, the pace may pick up. The court will decide two cases this term, and those decisions may well be narrow:\u00a0Hemani\u00a0<\/em>clarifying the contours of\u00a0Rahimi<\/em>\u2019s historical tradition,\u00a0Wolford\u00a0<\/em>reaffirming that\u00a0Bruen\u00a0<\/em>meant what it said. Meanwhile, the court is holding on to numerous petitions on other important Second Amendment issues.<\/p>\n

Who? What? Where? We may have answers soon.<\/p>\n","protected":false},"excerpt":{"rendered":"

The who, what, and where of gun control A Second Opinion\u00a0is a recurring series by\u00a0Haley Proctor\u00a0on the Second Amendment and constitutional litigation. My previous\u00a0column\u00a0examined what it means for a gun control measure to fit within \u201cthe Nation\u2019s historical tradition of firearm regulation.\u201d This month I want to focus on how the court has analyzed gun … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-116097","post","type-post","status-publish","format-standard","hentry","category-editorial-o-the-day","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/116097","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=116097"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/116097\/revisions"}],"predecessor-version":[{"id":116098,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/116097\/revisions\/116098"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=116097"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=116097"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=116097"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}