Appeals courts increasingly skeptical of gun controls in wake of Supreme Court rulings

Drug users may be allowed to possess guns, but illegal immigrants can’t, one appeals court ruled.

Another court decided that young adults have a constitutional right to buy and own guns. Yet another ruled that neither young adults nor anyone else has a constitutional right to certain popular types of rifles, such as the AR-15.

Federal judges have had a busy summer wrestling with the Second Amendment and the U.S. Supreme Court’s significant but confusing string of gun rulings over the past few years.

Federal courts have mostly remained skeptical of gun restrictions, saying that’s what they take from the justices’ latest rulings.

Some of the judges have been griping about it.

“The law shouldn’t work like this,” Circuit Judge Albert Diaz wrote last month. In the AR-15 case before the 4th U.S. Circuit Court of Appeals, he complained about judges’ difficulty working through what the Supreme Court says about firearms.

He said the justices left a mess with their 2022 ruling in the Bruen case, which reaffirmed the Second Amendment’s right to bear arms as a core personal right and established a historical test for determining whether restrictions are constitutional. That test examines whether the nation’s founders would have countenanced a gun restriction.

Then came the Rahimi ruling in June. The court seemed to shift the ground under Bruen a bit, ruling that the government can deny some “dangerous” people their gun rights even in situations the founders never confronted, such as someone facing a court-issued domestic violence restraining order.

Andrew Willinger, executive director of the Duke Center for Firearms Law, said the situation is “pretty chaotic” right now as judges try to figure out if anything in the Bruen or Rahimi decisions upends their prior thinking on firearms law.

“These early returns indicate that Rahimi may not change much just because the actual binding decision in the case is so narrow,” he said.

After Rahimi, federal courts have:

• Upheld a federal ban on illegal immigrants possessing weapons, ruling that they are not part of “the people” covered by the Second Amendment.

• Rejected a Minnesota law restricting firearms for adults younger than 21, finding they are part of “the people” covered by the Second Amendment.

• Halted California’s law restricting concealed-carry permits to state residents only.

• Blocked a Pennsylvania law barring public carrying of weapons during a declared emergency.

• Sided with a nonviolent marijuana user who challenged her arrest as an unlawful drug user in possession of a firearm.

• Upheld Maryland’s ban on “assault weapons,” including the popular AR-15-style rifle.

• Blocked an Illinois law prohibiting carrying firearms on public transit.

Stephen P. Halbrook, a gun law expert and author of “The Founders’ Second Amendment,” said he saw some consistency in the rulings and said it’s evidence that the justices’ rulings in Bruen and Rahimi are sound.

“I don’t think there’s chaos,” he said. “I think those decisions are fairly clear, and I think they’re capable of being followed, and they are being followed, most of the time.”

The exception, he said, is the Richmond-based 4th Circuit, which in August upheld Maryland’s ban on sales of some rifles.

The full court, in a 10-5 ruling, said the state of gun violence today couldn’t have been imagined by the founders, so that gives judges more freedom to look beyond historical analogies and instead apply broad principles.

“When a weapon’s potential for widespread criminal abuse or unreasonable capacity to inflict casualties became apparent to lawmakers, they did not hesitate to regulate in response. We hold that the Maryland statute fits comfortably within this venerable tradition,” Judge J. Harvie Wilkinson III wrote.

In dissent, Judge Julius N. Richardson said Judge Wilkinson was inventing a law.

“The Second Amendment is not a second-class right subject to the whimsical discretion of federal judges,” he wrote.

While the 4th Circuit wrestled with which weapons can be restricted, the 5th and 8th circuits have been examining which groups of people can be prohibited from possessing them.

The 5th Circuit said it could find no historical comparison for categorically barring drug users. Although some states did restrict firearms for someone who was intoxicated, nobody barred possession for regular drinkers, the court said.

“The history and tradition before us support, at most, a ban on carrying firearms while an individual is presently under the influence,” Judge Kurt D. Engelhardt wrote.

At the same time, the 5th Circuit said that “illegal aliens” stand outside the group of people with Second Amendment rights.

In an unsigned opinion, the three-judge panel said an “illegal alien does not become ‘part of a national community’ by unlawfully entering it, any more than a thief becomes an owner of property by stealing it.”

Mr. Willinger said a common element in the cases is courts reviewing their own gun law precedents to see how they align with Bruen and Rahimi.

Some analysts have argued that gun law is chaotic because the interpretation of the Second Amendment as a personal right of self-defense is relatively new, dating back to the Supreme Court’s 2008 Heller decision and a 2010 ruling that applied that decision nationwide.

The justices then went a dozen years without tackling big gun cases until the Bruen ruling told courts that many of them had been getting it wrong.

Justice Clarence Thomas, writing the key opinion, laid out the history test for judging whether firearms restrictions can survive.

The problem is that lower courts had built a decade’s worth of cases after Heller.

“You have all these precedents from that time period at the lower court level and a lot of those cases are no longer good law, but are all of them no longer good law?” Mr. Willinger said.

Even as they grapple with big constitutional issues, federal appeals courts rule on federal and state gun regulatory schemes.

The 8th Circuit ruled this summer that the Bureau of Alcohol, Tobacco, Firearms and Explosives erred when it decided in 2023 that attaching a pistol brace to a handgun makes it a short-barreled rifle. Those must be registered with the ATF.

The 8th Circuit also ruled last month against Missouri, which had declared itself a gun sanctuary state that would not cooperate with federal firearms investigations. The judges said Missouri is probably on solid ground in refusing cooperation but erred by declaring its intent was to “invalidate federal law.”