A Second Circuit Subversion of Bruen

I’m thrilled to have Second Amendment Foundation executive director Adam Kraut join today’s Bearing Arms Cam & Co to talk about SAF’s latest lawsuit in New York, which takes on a gun ban in subsidized housing, but that’s not the only topic of discussion. On a somewhat related note, we also get into a bold attempt by the Second Circuit Court of Appeals to subvert the Bruen decision and its “text, history, and tradition” test for gun control laws.


I covered the initial filing of the SAF lawsuit against the Cortland (NY) Housing Authority over its policy barring tenants from possessing a firearm on the premises a few days ago, but it was great to get some additional insight from Kraut about this litigation and previous cases involving similar bans. This is actually the fourth such case that SAF has brought around the country, and each and every time the litigation has ended with these bans being rescinded; either through a settlement or a court order. The Heller decision made it clear that governmental entities can’t bar lawful gun owners from keeping a firearm in their home, and Kraut maintains that the housing authority’s policy is clearly unconstitutional by basing their eligibility for housing on whether or not they’re exercising a fundamental civil right.

This lawsuit should be a slam dunk for SAF, but you never know what kind of trickery might happen when these cases go before a judge. The Bruen decision was meant to stop the judiciary from treating the Second Amendment as a second-class right, but those kinds of abuses are still taking place on a regular basis. Take, for example, the rationale deployed by the Second Circuit Court of Appeals in allowing many of New York’s post-Bruen carry restrictions to remain in effect while litigation continues. In its decision, the three-judge panel in essence declared the “text, history, and tradition” test laid out by the Supreme Court to be optional. While the Court has said that in order for a modern-day gun control to be constitutional there must be historical analogues showing a similar restriction was part of the national tradition around gun ownership, the Second Circuit panel declared:


… the absence of a distinctly similar historical regulation in the presented record, though undoubtedly relevant, can only prove so much. Legislatures past and present have not generally legislated to their constitutional limits. Reasoning from historical silence is thus risky; it is not necessarily the case that, if no positive legislation from a particular place is in the record, it must be because the legislators there deemed such a regulation inconsistent with the right to bear arms.

The absence of a particular law may not mean that lawmakers believed a particular theoretical policy violated the right to keep and bear arms, but it does mean that the activity in question wasn’t regulated or criminalized in any way, and that’s what matters as far as the Bruen test is concerned. The simple truth is that there weren’t a lot of gun laws when the Second or Fourteenth Amendments were ratified, and certainly nothing like the laundry list of “sensitive places” or draconian licensing regimes that exist in New York and other blue states today. As the Court held in Bruen, “Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense,” but the Second Circuit panel has chosen to ignore what the Supreme Court has said in order to view the state’s modern restrictions in the most favorable light possible.


“The Court also said that the lack of laws, analogous or verbatim copies that existed at the time; if that issue was something that was dealt with, and certainly people were violent throughout history, and that restrictions and other things did exist, that’s probative that it was considered and settled then,” Kraut told Bearing Arms. In other words, the absence of any particular ordinance that could be seen as analogous to a modern regulation absolutely matters.

“I think it’s judges trying to be clever,” Kraut continued. “They’re looking for ways that they can help the states uphold the laws that they’ve implemented. You look at the sensitive places laws in particular that were enacted post-Bruen. A lot of these are places we’ve never seen before in any context. Even with restrictive permitting regimes the people who actually acquired a permit never had these restrictions, so all of a sudden to say ‘Oh yeah, all these places are now off limits and it comports with the nation’s history and tradition’ is just… well, it’s an interesting case study in how to potentially ignore what the Supreme Court says.”

Kraut predicts that the arguments used by those judges will draw the ire of the Supreme Court, and I suspect he’s right. Flagrant misrepresentations of Heller lead us to Bruen, and now that Bruen is being mistreated in much the same way the Court has both the motive and means to get even more specific about how their test should be applied and overturning these lower court decisions in the process.


Be sure to check out the entire conversation with Adam Kraut in the video window below, and keep up to date with all of the Second Amendment Foundation’s legal efforts (as well as helping them in their legal fights) at SAF.org.

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