Federal appeals courts were busy this summer trying to make sense of the Supreme Court’s recent Second Amendment decisions. It has not gone well.
In 2022, Justice Clarence Thomas introduced a new test to assess the constitutionality of laws meant to address gun violence. Such laws must be struck down, he wrote, unless they are “consistent with the nation’s historical tradition of firearm regulation.”
Last month, Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., writing for six judges, said that approach had created “a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”
He added: “Courts, tasked with sifting through the sands of time, are asking for help.”
Jacob D. Charles, a law professor at Pepperdine University, said the justices were likely to return to the fray, and soon.
“Several major Second Amendment issues have been fracturing lower courts that may soon elicit Supreme Court review,” he said. Among them: laws barring felons, drug users and young people from having firearms; measures establishing gun-free zones; and bans of high-powered rifles.
Looking for historical analogies to modern gun control laws, as required by Justice Thomas’s 2022 majority opinion in New York State Rifle & Pistol Association v. Bruen, can yield surprising results.
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