The Oklahoma Bar Journal March 2023

“linguistic or legal conventions changed in the intervening period.” 65 While a medieval practice “that prevailed up to the period immedi ately before and after the framing of the Constitution” may bear on the meaning of the Second Amendment, the same cannot be said for “an ancient practice that had become obsolete in England at the time of the Constitution and never was acted upon or accepted in the colonies.” 66 This same caution applies with even greater force to post- enactment history. While historical prac tices “from the early days of the Republic” may be relevant, partic ularly if “open, widespread, and unchallenged,” the relevance of such practices quickly fades and ulti mately vanishes as one approaches the mid-to-late 19th century. 67 Simply put, “The belated innovations of the mid- to late-19th century … come too late to provide insight into the meaning of the Constitution in [1791].” 68 At most, practices from this period can provide “secondary” evidence to bolster or provide “confirmation” of a historical tradition that “had already been established.” 69 Finally, by the time one gets to the 20th century, the relevance of any historical analogues is all but nonexistent, so much so that the court in Bruen declined to “address any of the 20th century historical evidence brought to bear by [the government] or their amici. ” 70

analogue. Rather, the government must show that the challenged regulation “is consistent with the Nation’s historical tradition of firearm regulation.” 59 This requires more than one or two isolated examples. A tradition of regulation requires a historical practice so “well-established” and “widespread” that a court can say with confidence that the regulated conduct falls outside of “the pre- existing right codified in the Second Amendment.” 60 Although Bruen did not establish any clear threshold for determining when a historical prac tice rises to the level of a tradition, it did hold that “a single law in a single State” is not enough and even expressed “doubt that three colonial regulations could suffice.” 61 Time frame. Finally, in weigh ing historical evidence, courts must take careful account of the relevant time frame. As Bruen notes, “When it comes to interpreting the Constitution, not all history is created equal.” 62 “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them ,” which in the case of the Second Amendment was in 1791. 63 As a general rule, the longer a historical regulation pre dates or postdates this period, the less relevance it carries. 64 For histor ical analogues long predating the Second Amendment, courts “must be careful” to consider whether

THE POTENTIAL IMPLICATIONS OF BRUEN Bruen ’s text-and-history analysis for evaluating the constitutionality of firearms regulations wiped away years of circuit court authority. The resulting ripple effects will be far-reaching. So far, the most direct challenges have sought to apply Bruen to criminal statutes prohibit ing the possession of firearms under certain circumstances. In the early aftermath of Bruen , federal district courts declared certain subsections of 18 U.S.C. §922 unconstitutional: possession of a firearm with an obliterated serial number under 18 U.S.C. §922(k), 71 possession of a firearm while subject to a domestic violence restraining order under 18 U.S.C. §922(g)(8), 72 possession of a firearm by a marijuana user 73 and receipt of a firearm while under felony indictment under 18 U.S.C. §922(n). 74 As additional challenges proliferate around the country, other subsections of §922 not tied to preventing violent felons from possessing firearms will likely be the targets of similar Second Amendment litigation, including, for example, 18 U.S.C. §922(g)(5) (prohibiting firearm possession by illegal aliens), 18 U.S.C. §922(q) (prohibiting firearm possession up to 1,000 feet from a school zone) and even 18 U.S.C. §922(g)(1) (pro hibiting the possession of firearms by those with prior felony convic tions). Indeed, as a sign of future litigation to come, earlier this year, the 3rd Circuit granted en banc review in an appeal challenging §922(g)(1) under Bruen ’s text-and history standard. 75 But Bruen also has implica tions for the criminally accused wherever firearms are a factor within the criminal justice process. Practitioners should analyze current sentencing guidelines related to an offender’s possession of firearms – whether enhancing a base offense

Bruen ’s text-and-history analysis for evaluating the constitutionality of firearms regulations wiped away years of circuit court authority.

10 | MARCH 2023

THE OKLAHOMA BAR JOURNAL