EVER SINCE the US Supreme Court handed down a paradigm-shifting ruling two years ago, Massachusetts policymakers have had to retool their approach to making and defending laws regulating weapons, trying to become passable historians as much as lawmakers.
In New York State Rifle & Pistol Assn., Inc. v. Bruen, or Bruen, the US Supreme Court doubled down on a relatively recent expansion of Second Amendment rights. An earlier case in 2008 – Heller – concluded that a right to keep and bear arms for self-defense extends outside the home. Bruen created a new framework to determine the constitutionality of restrictions by rooting them in the “nation’s historical tradition of firearm regulation.”
The decision has opened almost all aspects of the state’s gun safety law regime to challenge and sent lawyers scrambling for history books. As recent Massachusetts Supreme Judicial Court decisions have shown, if a policy is not tied to a founding-era law or practice – a so-called historical analogue – it likely will not survive judicial scrutiny.
The Gun Owners Action League, the local state affiliate of the National Rifle Association, followed this approach in challenging a recently passed gun law on Beacon Hill. The league’s court filing described the new law as “onerous firearms legislation” because it includes restrictions on gun ownership and the carrying of weapons “that are as burdensome as they are ahistorical.”
Attorney General Andrea Campbell, whose office defends most state gun laws, says judges now find themselves grappling with historical as much as legal precedents.
“The Supreme Court has put courts in the very difficult position of looking to the habits of 18th and 19th century Americans to determine the constitutionality of modern weapons laws,” Campbell said. “These laws address threats and technologies that were completely unknown to earlier generations of Americans.”
In the past, states could justify their varying firearms restrictions by showing that there was a substantial state interest in preventing some element of gun violence and that the law in place was narrowly tailored toward that goal, with limited imposition on constitutional rights. This analysis, essentially tasking the government with proving that its legal means are justified by a sufficiently important goal, is known as the “means-end” test.
Heller decision
That approach suffered a setback in 2008, when the US Supreme Court split 5-4 in handing down District of Columbia v. Heller. The Heller decision established a constitutionally protected right to bear arms unconnected to military purposes as long as the weapons were commonly used for a purpose like self-defense.
States and courts responded to the decision by adopting a framework for Second Amendment cases that looked at both the history of weapons regulation and a version of the “means-end” test. Staffers in Campbell’s office said they were able to rely on social science and public safety studies to prove gun regulations kept people safe. State attorneys could point to the low rates of gun violence as evidence in favor of keeping safety laws in place.
By 2016, however, there were already signs that the US Supreme Court was tilting toward an approach more anchored to the founders’ original intent. A Massachusetts Supreme Judicial Court ruling the year before upheld a state ban on possessing a number of weapons, including stun guns. The court held there was a rational basis for the ban on stun guns and it was not the sort of weapon protected under Heller.
“There can be no doubt that a stun gun was not in common use at the time of enactment, and it is not the type of weapon that is eligible for Second Amendment protection,” Justice Francis Spina wrote. Stun guns, in the court’s reading, could be banned along with other “dangerous or unusual weapons.”
In a brief opinion in 2016, the US Supreme Court swatted away the SJC’s ruling.
Heller found, the Supreme Court noted, “the Second Amendment extends … to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” That stun guns are modern does not make them unusual, the court wrote, nor did it matter that they were not used in military situations.
The hard pivot toward the historical approach came in 2022, when the US Supreme Court handed down Bruen. The ruling declared New York’s system of gun licensing unconstitutional because it used a “may issue” policy for carrying concealed handguns, where licensing authorities have discretion to deny concealed-carry licenses if the applicant has not shown a “good reason” to need a license to carry.
This standard, also used by Massachusetts and a handful of other states plus Washington, DC, is contrasted with a “shall issue” rule, where anyone who meets certain threshold requirements must be issued a concealed-carry license.
Decided 6-3 on partisan lines, Bruen marked the end of the prior test, which took into consideration the history of gun regulations along with the means-end analysis.
“The Court rejects that two-part approach as having one step too many,” the court opinion concludes. Instead, the court found that historical analysis should rule the day, where the state has to put forward a founding-era analogue – but not necessarily an exact twin – to the challenged law.
“To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check,” Justice Clarence Thomas wrote for the court.
Then-Attorney General Maura Healey issued a biting response and immediately told licensing authorities to stop enforcing the “good reason” provision of the state license-to-carry statute.
“In a country flooded with firearms, today’s reckless and anti-democratic decision poses a grave danger to Americans as they go about their daily lives in public spaces like supermarkets, hospitals, and playgrounds,” Healey wrote. “Gun violence is a public health epidemic, and I remain committed to doing everything I can to keep our residents and our communities safe.”
Jim Wallace, executive director of Gun Owners Action League of Massachusetts, said at the time that the Bruen ruling marked “a good day for civil rights.” He predicted that legal and legislative challenges to firearm laws would surge post-Bruen – and they have over the last two years in Massachusetts and other states with restrictive firearms laws.
Playing historian
In practice, Bruen means prosecutors must prove that any regulation restricting the use of weapons has roots in the nation’s “historical tradition” of firearm restrictions. Attorneys in Massachusetts – and in other states – are now spending considerable time sifting through 18th- and 19th-century records to justify modern policies.
Officials from the attorney general’s office have changed their entire approach to defending laws challenged on Second Amendment grounds, bringing in historical experts and availing themselves of resources like the Duke Center for Firearms Law. The center is a searchable database of gun laws from the medieval age to 1776 in England, and from the colonial era to the middle of the 20th century in the United States.
Gun rights groups, meanwhile, are challenging the state’s “gun roster” and handgun safety regulations in federal court. The Firearms Policy Coalition argues in one of its briefs that “in the approximately 400-year history of the colonies and later the United States, no regulations at all like the Handgun Ban appeared until recently and then in only a few states. That is hardly a historical tradition of such regulations.”
In a brief, Campbell argued that the “regulations are fully consistent with the nation’s historical tradition of firearms regulation, as evidenced by historical laws throughout the states, from the colonial period through the end of the 19th century.” The office points to laws requiring inspection of guns before sale and safe storage, as well as bans on unusually dangerous weapons.
Massachusetts and other blue state courts, long inclined to uphold weapons restrictions on policy grounds, are now hemmed in by historical analogue analysis. When a weapons ban came back to the Massachusetts high court, this time focused on switchblades, justices evinced no desire to be overturned by the US Supreme Court.
Kaitlyn Gerber, the attorney for a man charged with possessing but not brandishing a switch-blade style knife, reminded the justices at oral arguments that Heller and Bruen apply to weapons other than guns as long as they were in existence at the time of founding.
“Well,” Justice Frank Gaziano remarked, “we found that out the hard way in the stun gun case.”
The justices are at times openly wrestling with the new rules.
Justice David Lowy, who left the bench earlier this year to become general counsel for the University of Massachusetts, prodded the “national historic tradition” metric in the switchblade case. Other courts, like the Northern District of California, spent significant amounts of time on that question.
“I will tell you, for one, I do not know what national historic tradition means,” Lowy said, “and if we can consider regulation after the Fourteenth Amendment or not.”
The SJC declared the switchblade ban unconstitutional, citing Bruen, and looking at knife usage traditions up until the Fourteenth Amendment.
States looking to uphold their weapons laws say they have some hope that not all firearms restrictions are necessarily going to fail under a historical analysis, as this year’s United States v. Rahimi case showed. In the 8-1 decision, in which only Bruen author Thomas dissented, all nine justices of the US Supreme Court wrote opinions analyzing the case of a man barred by statute from possessing a firearm because he was currently subject to a restraining order.
The 103-page Rahimi decision, finding that the law was constitutional, wrestled with the long tail of Bruen and its muddled application around the country.
“[S]ome courts have misunderstood the methodology of our recent Second Amendment cases,” Chief Justice John Roberts wrote. “These precedents were not meant to suggest a law trapped in amber.” The test, he said, is if a law is “relevantly similar” to “laws that our tradition is understood to permit,” applying founding generation principles to a modern era.
Some of his fellow justices don’t see that as a straightforward ask.
“It is not clear what qualifies policymakers or their lawyers (who do not ordinarily have the specialized education, knowledge, or training of professional historians) to engage in this kind of assessment,” Justice Ketanji Brown Jackson wrote in a Rahimi footnote. “And dutiful legislators are not the only stakeholders who are far outside their depth: Bruen also conscripts parties and judges into service as amateur historians, casting about for similar historical circumstances.”
In gun law cases before the Massachusetts high court since Bruen, justices have tossed convictions or elements of convictions based on the state’s gun licensing requirements. But the limitations of the new historical analytical framework can twist arguments into pretzels.
This term, justices are considering two cases about New Hampshire residents who were driving in Massachusetts with guns in their vehicles. The guns were legally licensed by New Hampshire but not Massachusetts. After car crashes, police found the guns in each car and charged the men for carrying firearms without state permits.
Ryan Rall, assistant district attorney with the Middlesex District Attorney’s office, argued that surety laws and “going armed laws,” also known as brandishing arms laws, are relevant historical analogues.
Those laws presume that the state has a right to make sure – through licensing – that a person does not pose a danger to others before being armed, he said. But the justices pointed out that those laws tend to involve some display of public danger and may not be the best historical analogue for people legally licensed by other states traveling across Massachusetts.
“Massachusetts, as all colonies and states – whether we’re talking about the founding area, or moving forward into the passage of the 14th Amendment – have this foremost prerogative and sovereignty to create their own criminal code and enforce it as a general principle against all who go within its borders,” Rall argued.
But those general arguments about federalism aren’t necessarily relevant “analogues” for the specific laws at play. In the Rahimi case, where the US Supreme Court considered whether a person could be prohibited from carrying a gun if they were actively under a restraining order, all justices delved into history for signals that this was the kind of policy consistent with founding-era principles and practices.
“[T]he Second Amendment permits more than just regulations identical to those existing in 1791,” the court concluded. “Under our precedent, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation’s regulatory tradition.”
Considering the New Hampshire cases, SJC justices wondered how to square practical public policy interests with historical tradition, if that was at all possible. Justice Dalila Wendlandt explored part of attorney Kathryn Hayne Barnwell’s argument as the court considered both cases.
“Your position is that the Second Amendment prohibits a state from temporarily disarming somebody, period, unless [officers] then determine that they’re a prohibited person,” Wendlant said. “While they’re armed they may or may not be prohibited, but we don’t have a time at all – zero time to determine?”
Barnwell tentatively agreed, “unless and until the person is actually found dangerous” or the state “puts up a historical analog” for allowing that disarming.
Justice Serge Georges Jr. broke in, saying “that can’t be right … How would they ever know? If we just limit it to prohibited persons, and you’re saying that every state could just enact a statute that says if you’re a prohibited person, you can’t carry, who’s walking into the state saying, ‘hey, here by the way, I’m a prohibited person?’”
That may be a compelling administrative reason to allow for temporary disarming, Barnwell acknowledged, “and if we were in a ‘means-end scrutiny’ world, that would probably be dispositive. But the body of Bruen says you gotta do historical tradition.”
Law professor Jacob Charles, the former executive director of the Duke Center for Firearms Law, worried in 2022 that “courts are now “entitled” to strike down democratically enacted legislation if whatever responsible government officials defending a given law neglect to insert relevant historical evidence into the record, even if that history would have supported the law.”
He foresaw two outcomes: that the Second Amendment right changes over time as new historical evidence is unearthed, or that the high court’s pronouncement about historical facts becomes “binding for all time.”
Historians on Beacon Hill
Historical defenses are being baked into new gun law legislation, with lawmakers assuming there will be legal attacks based on these grounds. That’s what happened with the latest gun legislation to gain approval on Beacon Hill.
“The bill is consistent with the rights afforded under the Second Amendment,” Senate Majority Leader Cynthia Creem of Newton said during debate on the Senate’s version of the bill. To ensure it was constitutional, she said, “We consulted with legal experts on constitutional law who specialize in the Second Amendment-related issues, including the attorney general’s office, the head of their constitutional law department. Constitutional experts within the AG’s office, who would be the ones charged with defending this legislation, stated to us that they were comfortable with the constitutionality of the provision.”
Recent US Supreme Court cases, she said, allow states to impose regulations that keep firearms out of the hands of criminals and those who pose a threat to themselves or others, which ties into the “red flag law” expansions.
Rulings from the nation’s high court have also allowed restrictions on carrying weapons in “sensitive” places. As a result, the new Massachusetts law criminalizes carrying firearms in government buildings, courts, and election/polling areas.
Creem noted that the Supreme Court still permits the regulation of abnormally dangerous weapons, so the Massachusetts law updates state prohibitions on assault weapons and weapons that function like them.
“That’s what the provisions of this bill do, and I’m confident that they are consistent with the Bruen decision,” Creem said.
Gun rights advocates and gun sellers profoundly disagree.
Two federal lawsuits now target the gun package, which was given an emergency gubernatorial preamble to take effect immediately last week. One suit filed in August by a group that includes the Gun Owners Action League focused on the overhaul of gun licensing requirements. Another newly filed complaint from Gino Recchia and his Bellingham gun shop, Mass Armament, argues that the law’s assault weapons section runs afoul of Second Amendment protections and would affect roughly 70 percent of his store’s sales.
Changes to the licensing regime, GOAL argues in its initial claim, involve “objective, subjective, and discretionary preconditions” which, “including their attendant burdens, expenses, and delays, are not consistent with this nation’s historical tradition of firearms regulation.”
Campbell’s office can file its answer any day up until November 6, one day after the presidential election.
Regardless of the outcome of the election, state courts will continue to grapple with the winding tail of Bruen. To protect or attack Massachusetts gun laws, advocates on both sides will continue to hit the history books.