In light of its decision in New York State Rifle & Pistol Association, Inc., et al., v. Bruen,[1] the United States Supreme Court issued an order vacating and remanding four Circuit Courts of Appeals judgments involving the Second Amendment’s application to various state laws.  In Bruen, the Supreme Court deemed a New York state law’s requirement that applicants for concealed carry weapons permits must establish “proper cause” for issuance of the permit unconstitutional under the Second and Fourteenth Amendments.  The Court explained that historical analogs for such a requirement did not exist.  In doing so, the Court also struck down the two-step process involving tiered scrutiny employed by the Courts of Appeals in analyzing Second Amendment claims since District of Columbia v. Heller,[2] noting that it “was one step to many.”

The Supreme Court vacated and remanded the following cases for further consideration in light of the Bruen ruling:

  1. Bianchi v. Frosh (21-902)

Maryland’s Firearm Safety Act of 2013 (the “FSA”), banned the AR-15 and other military-style rifles and shotguns (referred to as “assault weapons”) and detachable large-capacity magazines.  In Bianchi v. Frosh,[3] the Fourth Circuit Court of Appeals denied plaintiffs challenge of the FSA ban as squarely foreclosed by the Fourth Circuit’s prior decision in Kolbe v. Hogan,[4] which held that because the banned assault weapons and large-capacity magazines were like M-16 rifles—weapons that were most useful in military service—they were among those arms that the Second Amendment did not protect.  Kolbe also held that even assuming that the assault weapons and large-capacity magazines prohibited by the FSA were entitled to Second Amendment protection, the FSA was constitutional under the intermediate scrutiny standard of review because its prohibitions were reasonably adapted to Maryland’s substantial governmental interest in the protection of its citizenry and the public safety.

The Supreme Court vacated the Fourth Circuit’s Bianchi decision and remanded to the Fourth Circuit in light of Bruen.

  1. Duncan v. Bonta (21-1194)

Amended after the passage of Proposition 63, California Penal Code section 32310 banned possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition.  An en banc Ninth Circuit Court of Appeals[5] applied the tiered-scrutiny framework, found that intermediate scrutiny applied, and determined that the ban was a reasonable fit for the California’s compelling goal of reducing gun violence.

The Supreme Court vacated the Ninth Circuit’s decision and remanded to the Ninth Circuit in light of Bruen.

  1. Young v. Hawaii (20-1639)

Hawai’i’s firearm licensing law[6] requires that residents seeking a license to openly carry a firearm in public must demonstrate “the urgency or the need” to carry a firearm, must be of good moral character, and must be “engaged in the protection of life and property.”  After being denied a license, a plaintiff challenged the licensing law.  The en banc Ninth Circuit Court concluded that Hawai’i’s restrictions on the open carrying of firearms reflected longstanding prohibitions, and therefore, the conduct they regulated was outside the historical scope of the Second Amendment.  The en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense.

The Supreme Court vacated the Ninth Circuit’s decision and remanded to the Ninth Circuit in light of Bruen.

  1. Ass’n. of N.J. Rifle & Pistol Clubs, Inc. v. Bruck (20-1507)

New Jersey plaintiffs had challenged a New Jersey statute[7] which, like California’s Penal Code section 32310, banned possession of magazines capable of holding more than ten rounds of ammunition.  The Third Circuit Court of Appeals affirmed[8] a lower court’s decision granting summary judgment to the New Jersey state defendants because a prior Third Circuit panel had already reviewed the New Jersey statute and held, among other things, that the statute did not violate the Second Amendment.

The Supreme Court vacated the Third Circuit’s decision and remanded to the Third Circuit in light of Bruen.


These orders demonstrate the effects of the Supreme Court’s rejection of the tiered-scrutiny analysis in favor of the analysis set forth in Bruen: “[T]he standard for applying the Second Amendment is as follows:  When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”  “The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”  We can anticipate that the Bruen decision will have a profound effect on analysis of Second Amendment claims.  The contours of Second Amendment rights undoubtedly will be re-defined through further litigation and reconsideration of many prior decisions applying the tiered-analysis approach widely accepted since Heller and now undermined by Bruen.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.


[1] New York State Rifle &Amp v. Bruen, Superintendent of N.Y. State Police, 2022 U.S. LEXIS 3055. See Client Alert Vol. 37 No. 9.

[2] 554 U. S. 570 (2008).

[3] 858 F. App’x 645 (4th Cir. 2021).

[4] 849 F.3d 114 (4th Cir. 2017) (en banc).

[5] Duncan v. Bonta, 19 F.4th 1087 (U.S. 9th Cir. 2021); see also Client Alert Vol. 36 No. 26.

[6] Hawai’i Revised Statutes § 134-9(a).

[7] The New Jersey statute is known as Assembly Bill No. 2761 and codified at N.J. Stat. Ann. § 2C:39-1.

[8] Ass’n. of N.J. Rifle & Pistol Clubs Inc. v. AG N.J., 974 F.3d 237 (3d Cir. 2020).