Before 2008, American courts interpreted the Second Amendment as authorizing states the freedom to regulate their militias – today’s National Guard. In Heller, the Court invalidated the District of Columbia’s handgun ban and requirement that rifles in the home be stored with trigger locks and unassembled. This was the first time the Court found such a right existed. 

Today, New York requires every gun owner to obtain a license to own or possess a gun and to meet certain character standards. If a person wants to carry a concealed firearm outside the home, he or she has to demonstrate “good cause,” which courts have found is “a special need for self-protection distinguishable from that of the general community,” such as specific threats.

New York’s concealed handgun ban dates to 1905 and it was one of only six states where concealed carry permits are discretionary. In Virginia, concealed carry permits must be issued unless you fall within one of 18 exclusions such as a felony conviction, mental illness or have specific misdemeanor convictions. 

The NY Rifle case abandoned tests that had been settled on by the federal appellate courts and set aside the New York rule by creating a new test stipulating that all firearms rules must be “consistent with this Nation’s historical tradition … when the people adopted them” and consistent with the “public understanding” of the amendment.   

This “historical tradition” test is preposterous. At the time our country was founded, it took eight to 10 seconds to put one bullet in a musket. The effective range of an 18th century musket was 50 to 100 meters. George Washington would not recognize today’s firearms, you could not carry a pistol with 33 bullets in your pocket, and it is unlikely James Madison ever stuffed his musket rifle in his jacket while he perused grocery store aisles.  Concealable guns did not exist.

The Court also discussed what kinds of “sensitive places” firearm regulation might be allowed including some “government buildings,” such as courthouses, but it did not clarify the scope. Given this discussion, Virginia’s rules prohibiting firearms on school property, in Richmond’s Capitol Square or in state government buildings could be at issue.

In 2020, I helped pass several historic laws that could be at issue because * Universal background checks;

* “Red Flag” laws allowing police to seize guns from mentally unstable people in an emergency;

* Allowing only one handgun purchase per month; and

* Allowing localities to regulate firearms on government property and at government-permitted events.

I was especially proud to carry the local authority bill after several men from Hopewell, Virginia, carried AR-15 rifles around the Alexandria Farmers Market while my father and son tried to buy a baguette and ham biscuits.  Since then, many Virginia localities have adopted ordinances prohibiting firearms in government centers, libraries, local parks and during parades, protests or other government-permitted events.  

All of these ordinances are now at risk. Background checks, red flag laws and gun purchase limits did not exist in 1776 and I have no idea what the Supreme Court thinks the “historical record” says about these rules. 

The Court has also created this new legal regime out of thin air. It effectively requires legislators and judges to become historians. History is often written by the victors, filled with the period’s prejudices and interpretation is subject of debate. Law schools do not teach historical analysis and our system is wholly unprepared for this new “legal test” which is going to result in a legal feeding frenzy which is one reasons courts often avoid overruling precedents.

Confidence in the Supreme Court is at an all-time low today because today’s Court operates more as a legislature instead of nine impartial jurists who follow the U.S. Constitution or law enacted by democratic legislatures.