The Oklahoma Bar Journal March 2023

C riminal L aw

L AST YEAR, IN NEW YORK STATE RIFLE & PISTOL ASS’N, INC. V. BRUEN , 1 the Supreme Court, for the first time, announced a standard for deciding the constitutionality of firearm regulations under the Second Amendment. The test is unlike anything you learned in law school. It doesn’t ask how important or compelling the state’s interest is in a challenged regulation, whether the means of regulation used are substantially related or narrowly tailored to that interest or the degree to which the challenged regulation burdens the right invoked. The New Second Amendment Frontier: Litigating the Constitutionality of Firearm Offenses Under Bruen ’s Text-and-History Standard By John D. Russell, Andrew J. Hofland and Justin A. Lollman

cases – in particular, defending – should be on the lookout for these issues and prepared to argue them. This article provides a roadmap for doing just that, describing Bruen ’s holding, its significance and poten tial future implications. The Second Amendment pro vides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” 6 In the years leading up to Bruen , the Supreme Court held, in District of Columbia v. Heller , that the Second Amendment “protects an individual right to possess THE LAY OF THE LAND BEFORE BRUEN

the government fails to carry this burden, the challenged regulation is unconstitutional. 5 For criminal practitioners, the implications of Bruen are exten sive. No other constitutional right is subject to more criminal regula tion than the Second Amendment, with many of those regulations being of mid-to-late 20th-century vintage – too late to be considered part of “the Nation’s historical tradition of firearm regulation” under Bruen . Bruen ’s implications are only now beginning to play out in the lower courts, with some of the most commonly prosecuted fire arm offenses facing new challenges in light of Bruen ’s rigorous text and-history standard. Attorneys prosecuting and defending these

Instead, Bruen announced an entirely new two-step test “rooted in the Second Amendment’s text, as informed by history.” 2 At step one, Bruen requires lower courts, when examining a firearm regu lation, to ask whether “the Second Amendment’s plain text covers an individual’s conduct.” 3 If it does, “The Constitution presumptively protects that conduct.” At that point, the court must turn to the second step, where the burden falls on the government to “justify its regulation by demonstrating that [the challenged regulation] is consistent with the Nation’s historical tradition of firearm regulation” – that is, the tradition in existence “when the Bill of Rights was adopted in 1791.” 4 If

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THE OKLAHOMA BAR JOURNAL

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