Hmmm: SCOTUS orders hint at broader reach for Bruen in gun cases

AP Photo/Mariam Zuhaib

Perhaps the 6-3 majority in Bruen has only begun to flex its muscles on gun control. After issuing its last two opinions of this term, the Supreme Court published its final set of orders, and the Associated Press notices a very interesting pattern. The court has ordered lower courts to revisit cases pending action at the Supreme Court in light of its Bruen ruling, which itself isn’t surprising … but the scope may be:


The Supreme Court said Thursday that gun cases involving restrictions in Hawaii, California, New Jersey and Maryland deserve a new look following its major decision in a gun case last week.

In light of last week’s ruling — which said that Americans have a right to carry a gun outside the home — lower courts should take another look at several cases that had been awaiting action by the high court, the court said. Those cases include ones about high-capacity magazines, an assault weapons ban and a state law that limits who can carry a gun outside the home. …

One of the cases the justices sent back to a lower court Thursday involved a Hawaii statute similar to New York’s. In that case, a panel of 11 judges on the 9th U.S. Circuit Court of Appeals had ruled in 2021 that the right to “keep and bear arms” in the Constitution’s Second Amendment “does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense.” But the high court said in its latest gun case that the Constitution protects “an individual’s right to carry a handgun for self-defense outside the home.” A lower court will now have to revisit the Hawaii ruling.

This one isn’t surprising at all. I wrote about Young v Hawaii in March of last year, when the Ninth Circuit ruled that Hawaii’s “may issue” carry permit regime passed muster because — and I am not joking about this — the pre-statehood traditions of Hawaii take precedence over the Constitution. Law and Crime’s Colin Kalmbacher thought this presaged a new legal movement to get gun-control legislation back on track:


“Hawai‘i law began limiting public carriage of dangerous weapons, including firearms, more than 150 years ago — nearly fifty years before it became a U.S. territory and more than a century before it became a state,” the opinion explains in language foreshadowing the method of inquiry and eventual ruling in favor of anti-gun regulation.

To quote Mad Dog Tannen: You thought wrong, dude. In Bruen, the court stuck to the Constitution and the clear meaning of the textual definition of “bear arms.” It didn’t preclude permit laws for carrying firearms outside the home, but the court made clear that the default had to be approval of such requests unless the state found a legitimate reason to bar the exercise of that enumerated constitutional right in each case.

So a remand in Young v Hawaii is an obvious choice. In fact, I joked with Cam Edwards that the Bruen ruling was so on point that it would deprive us all of the language of a rebuking opinion that overturned that decision. Alas!

The other choices here are less obvious from Bruen, however:

The high court also told federal appeals courts to revisit cases involving laws in California and New Jersey that limit the number of bullets a gun magazine can hold. A 2018 New Jersey law limits most gun owners to magazines that hold up to 10 rounds of ammunition instead of the 15-round limit in place since 1990. A lower court upheld the law.

California law also bans magazines holding more than 10 bullets. A panel of 11 judges on the 9th U.S. Circuit Court of Appeals ruled 7-4 last year to uphold California’s ban.

The justices also sent back for further review a case from Maryland that challenged the state’s 2013 ban on 45 kinds of assault weapons. The high court had in 2017 turned away a previous challenge to the law.


None of these three cases have a direct overlay to Bruen. In fact, a search of the opinion and dissent turns up no discussion of ammunition limits or firearm limits by type or capacity. This looks as though the Supreme Court, or at least its Bruen majority, is warning that they’re not looking for “new method[s] of inquiry” to justify gun-control legislation, but instead intend to apply the single-step Heller test identified and set into precedent with Bruen to a much broader range of such legislation. It’s a heads-up to those courts that their previous rulings wouldn’t survive such scrutiny, and that this is their opportunity to apply Bruen accordingly.

Will those lower courts get the message? Maybe, but I’d guess that the same Ninth Circuit that produced the absurd Young decision will need it spelled out in small words first. The next term at the Supreme Court might be even more interesting for gun-rights advocates … and this one was interesting enough.

Ed Whelan sums it up well:

This is quite the cliffhanger for the next season of As The Supreme Court Turns, or Back To The Constitution Part II.


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