The Oklahoma Bar Journal March 2023

self-protection distinguishable from that of the general commu nity.” 18 Application of this “special need” requirement by licensing officers was demanding, dis cretionary and subject to highly deferential judicial review. 19

text-and-history test – a standard devoid of any judicial “interest bal ancing,” like the “tiers of scrutiny” (rational basis, intermediate scru tiny, strict scrutiny) commonly applied under other constitutional amendments. 25 But the court did

firearms” 7 and, in McDonald v. City of Chicago , that this right ranks “fundamental” and thus applica ble against the states under the 14th Amendment. 8 Yet, aside from these narrow holdings, neither Heller nor McDonald provided a test or standard for deciding the constitutionality of firearm regula tions under the amendment. 9 In the years following these decisions, lower courts across the country, including the 10th Circuit, coalesced around a deferential two-part “means-end” balancing test. 10 That test required courts to first determine whether the challenged law regulates activity falling outside the scope of the Second Amendment right as origi nally understood. 11 If so, the activ ity is unprotected, and the analysis is over. 12 If not, the analysis would proceed to the second step, where the court was to analyze how closely the law comes to the core of the Second Amendment’s right and the severity of the law’s bur den on that right. 13 Laws burden ing a “core” Second Amendment right were subject to strict scru tiny. 14 All others were subject to intermediate scrutiny. 15 Amendment challenge to New York’s discretionary “may issue” gun licensing statute. That stat ute criminalized gun possession, whether inside or outside the home, without a license. 16 For those wishing to carry a firearm outside the home, the applicant was required to convince a licens ing officer, usually a judge or law enforcement officer, that they had “proper cause” for doing so. 17 While not defined by statute, New York courts had interpreted this “proper cause” standard as requiring license applicants to “demonstrate a special need for THE BRUEN DECISION Bruen involved a Second

The petitioners in Bruen , Brandon Koch and Robert Nash, were two law-abiding New York residents, both of who had applied for and been denied a license to carry a firearm outside the home for self-defense. 20 After their applications were denied, Mr. Koch and Mr. Nash filed suit in federal district court against the state officials responsible for overseeing and processing license applications, arguing the New York licensing statute was unconstitutional under the Second Amendment. 21 The dis trict court dismissed the case, and the 2nd Circuit affirmed. 22 In a 6-3 decision, the Supreme Court reversed. 23 In doing so, the court, for the first time, announced a test for deciding constitutional challenges under the Second Amendment, expressly disavowing the “means-end” balancing test adopted by every circuit court to address the issue. 24 As described above, Bruen established a two-part

not stop there. It then went on to describe and apply this new stan dard, doing so in thorough, didactic detail over the course of its 63-page opinion. As explained below, the court’s analysis and application yield several important lessons. Bruen Step One: Does the Second Amendment’s Plain Text Cover the Regulated Conduct? At step one of the Bruen anal ysis, the court asks whether “the Second Amendment’s plain text covers the [regulated] conduct.” 26 This step requires “a ‘textual anal ysis’ focused on the ‘normal and ordinary’ meaning of the Second Amendment’s language” 27 – in particular, the normal and ordinary meaning at the time the Second Amendment was adopted in 1791. 28 “The reason [for this reading] is obvious: the text was adopted by the people in its obvious and general sense.” 29 “[T]he Constitution was written to be understood by the

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THE OKLAHOMA BAR JOURNAL