Following the Supreme Court’s Bruen decision, Second Amendment jurisprudence is more unsettled than it has perhaps ever been. However, judges thus far appear skeptical of disrupting at least one realm of gun law: background check requirements.
Even in novel formats, background check requirements have largely escaped falling victim to the text, history, and tradition-based legal test so many other gun laws have been felled by in the courts. Most recently, the “enhanced” background check requirements for 18-20-year-old gun buyers in the 2022 Bipartisan Safer Communities Act were upheld as constitutional by the Fifth Circuit Court of Appeals.
“The [Second Amendment’s] plain text covers plaintiffs’ right ‘to keep and bear arms,’” Judge Jerry E. Smith, a Ronald Reagan appointee, wrote on behalf of a unanimous panel in McRorey v. Garland. “And on its face ‘keep and bear’ does not include purchase—let alone without background check. That is so in either the contemporary or the Founding-era context.”
As a result, there is now precedent in the country’s most conservative circuit blessing a background check scheme that effectively creates a ten day waiting period. And it’s difficult to see gun-rights challengers having better luck elsewhere.
In part, gun-rights litigants have a dicta problem. The language deployed by the Supreme Court to hedge its majority opinions in Heller and Bruen is repeatedly being used to uphold modern gun laws, even those that would seem to lack a historical analogue at first glance.
In the McRorey decision, the Fifth Circuit panel drew from a portion of Justice Scalia’s opinion in Heller that emphasized how the Court’s holding was not casting doubt on “laws imposing conditions and qualifications on the commercial sale of arms.”
That dicta, coupled with the panel’s view that purchasing firearms is merely ancillary to “keeping” or “bearing” firearms, is how it justified eschewing a historical inquiry. So, they didn’t require the federal government to provide Founding-Era analogues to a requirement that young adults go through a three-to-ten-day waiting period and background check before buying a gun.
“Bruen and Heller make clear that background checks preceding firearm sales are presumptively constitutional,” Judge Smith wrote. “Plaintiffs fail to rebut that presumption.”
The lower court decision Smith and his co-panelists were deciding on appeal reached a similar conclusion, mainly based on what the lower court viewed as the Bruen opinion’s implied blessing of objective, shall-issue carry permitting regimes and their associated background check procedures.
“The Bruen majority therefore seems to acknowledge the facial constitutionality of regimes requiring background checks and attendant waiting periods to ensure a potential purchaser is not prohibited from exercising Second Amendment rights, so long as the waiting periods are not ‘lengthy,’” District Judge Reed O’Connor wrote.
And while that practice has not only been limited to cases involving background checks and waiting periods (a federal appeals court cited the Heller opinion’s dicta about military M16s not being protected by the Second Amendment to uphold a ban on civilian AR-15s, for instance), it poses a particular hurdle for challenges to those policies. That’s because, unlike outright hardware or carry bans, background checks and, to a certain extent, waiting periods are much more popular.
Put another way, a ruling striking down the National Instant Criminal Background Check System is likely to engender far more backlash, including from people otherwise sympathetic to gun rights, than one doing away with gun-free zones or AR bans. Though judges are meant to be insulated from the whims of public opinion, they often remain sensitive to considerations beyond the letter of the law. That includes the judges on the Supreme Court.
To date, the Court’s major decisions upholding gun rights have all been broadly popular because they have more or less struck down restrictions that most of the country had long ago rejected. Handgun bans were broadly unpopular well before Heller and the vast majority of states had already adopted permissive concealed carry laws before Bruen.
Some of the conservative Justices have also shown signs they aren’t necessarily looking to get ahead of public opinion on guns in the Court’s most recent cases.
The Justices agreed to review the federal gun ban for persons subject to domestic violence restraining orders and strongly suggested they intended to overturn that ruling during oral arguments last November. Additionally, the Court has taken up a case against the ATF’s reclassification of bump stocks as machine guns. While those oral arguments were less suggestive of a particular outcome, they did feature multiple instances of conservative Justices expressing sympathy for the need to outlaw both machine guns and bump stocks.
“Look, intuitively, I am entirely sympathetic to your argument,” Justice Amy Coney Barrett said in an exchange with the Solicitor General on why bump stocks should be banned. “I mean, it seems like, yes, that this is functioning like a machinegun would.”
“I can certainly understand why these items should be made illegal,” Justice Neil Gorsuch added separately.
The Court’s Bruen opinion sets a difficult bar to clear for most gun restrictions, but that doesn’t necessarily mean the Justices will follow through in striking down many of the more popular gun laws currently on the books. So, gun-rights advocates should not count on background check challenges succeeding. At least, not until more conservative federal judges start to sound more open to expanding their view of the Second Amendment.
