The constitutional framework for Second Amendment challenges changed dramatically when the United States Supreme Court released its decision on N.Y. Pistol & Rifle Association v. Bruen in the Summer of 2022. In his majority opinion, Justice Clarence Thomas rejected the lower courts’ use of strict or intermediate scrutiny, and instead replaced it with a test centered on historical evidence to justify challenged gun laws to better align the outer limits of the American peoples’ Second Amendment right with what the founding fathers intended. The use of historical justifications for present-day gun laws, however, presents several issues for lower courts dealing with the likely new influx of Second Amendment challenges post-Bruen. One major issue for present-day Second Amendment challenges is when history provides little to no insight on how the founding fathers understood the right in a particular context. For medicinal marijuana users currently prohibited from legally purchasing a firearm due to their status as a Schedule I substance user, the lack of historical justifications defending such a prohibition presents a potential avenue for a successful Second Amendment challenge under Bruen. Furthermore, this Note will discuss the implications of Justice Thomas’s new test on several categories of seemingly uncontroversial gun restrictions that would have no sensible place in our nation’s early history.
* J.D. Candidate, University of Illinois College of Law (2024); B.S., Stonehill College (2017). I would like to thank every member of the University of Illinois Law Review for their excellent work in preparing this Note for publication. Your hard work is certainly appreciated. I would also like to give a special thank you to Professor Jason Mazzone for his guidance throughout writing this Note, for which I am tremendously grateful.
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