WASHINGTON, D.C. — In a recent opinion piece on SCOTUSblog, renowned legal scholar and University of California, Berkeley Law School Dean Erwin Chemerinsky argues that the U.S. Supreme Court has created widespread confusion in the criminal justice system through its modern Second Amendment jurisprudence.
Chemerinsky writes that lingering ambiguity, caused by the Supreme Court’s abandonment of its traditional constitutional analysis, has left lower courts uncertain about how to apply gun laws. He cites Justice Ketanji Brown Jackson’s concurring opinion in the court’s most recent Second Amendment decision, United States v. Rahimi, in which she stated that “lower courts are struggling” with recent precedent concerning the amendment and that “confusion plagues the lower courts.”
Chemerinsky also notes that two additional Supreme Court cases involving gun laws are currently on the docket, warning that they “likely will exacerbate, not clear up, the confusion.” Still, he leaves open the possibility that the court could resolve the issue, writing, “The court could — and should — solve much of this problem by treating the Second Amendment like other rights in the Constitution.”
According to Chemerinsky, the confusion stems from a break with long-standing judicial precedent that prevailed from 1791 until 2008, when the Supreme Court ruled in District of Columbia v. Heller. He explains that during that 217-year period, “the Supreme Court did not strike down one federal, state, or local gun regulation.”
That precedent shifted after District of Columbia v. Heller in 2008, when the court struck down Washington, D.C.’s handgun ban in a 5-4 decision. Chemerinsky emphasizes, however, that even in Justice Antonin Scalia’s majority opinion, the court acknowledged limits on gun rights. He cites Scalia’s statement that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
Despite those assurances, Chemerinsky writes that lower courts struggled to apply Heller, in part because the Supreme Court did not decide another major gun rights case for 14 years.
The next significant Second Amendment ruling came in New York State Rifle and Pistol Association v. Bruen in 2022. In a 6-3 decision, the court rejected a New York law requiring a permit to carry a firearm in public and the need to show a specific safety justification for that permit, according to Chemerinsky.
In Bruen, Justice Clarence Thomas wrote for the majority that courts may no longer evaluate whether gun laws serve an important or compelling government interest, a practice known as intermediate scrutiny that lower courts had frequently used in Second Amendment cases. Chemerinsky interprets Thomas’ reasoning as concluding that intermediate scrutiny “was not sufficient to protect gun rights.”
Thomas wrote that the Second Amendment “is the very product of an interest balancing by the people” and that it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense,” language Chemerinsky interprets as an apparent rejection of traditional constitutional balancing tests.
Chemerinsky argues that this approach incorrectly assumes that “the absence of a particular type of regulation historically means that the Second Amendment was meant to prohibit it,” when, in reality, historical practices often fail to provide clear answers to modern regulatory questions. He writes that “historical practices often were divergent and not useful in analyzing modern weapons and contemporary needs for regulation,” and adds that the court was unclear about which history was relevant and how it should be interpreted.
The consequences, Chemerinsky writes, were immediate. He notes that Bruen “unleashed challenges to every type of gun regulation,” including laws prohibiting firearm possession by people with felony convictions. He adds that post-Bruen courts have issued conflicting rulings, underscoring persistent uncertainty in the application of Second Amendment law within the criminal justice system.
As a remedy, Chemerinsky urges courts to abandon the history-only test and instead treat the Second Amendment as they do other constitutional rights. He writes that “if the Second Amendment is deemed a fundamental right, the questions should be whether the government has a compelling interest and whether its action is necessary to achieve that interest,” concluding that such a framework would bring clarity and consistency to criminal justice decision-making.
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