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In the wake of the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen that drastically changed courts’ framework for evaluating 2nd Amendment challenges, criminal defense lawyers are using Bruen to challenge the constitutionality of their clients’ firearms convictions.
Nearly two years after the nation’s highest court created a new, two-part test for courts to use when considering 2nd Amendment challenges — which includes requiring the government to show that the regulation at issue is consistent with the country’s “historical tradition of firearm regulation” — criminal defense and appellate lawyers have raised numerous constitutional challenges to firearms convictions under this theory.
The Maryland Office of the Public Defender has approximately 20 appeals pending in the Maryland Appellate Court and one appeal pending before the state’s high court that cite Bruen to argue a firearms charge or conviction is unconstitutional, said Brian Zavin, chief of the OPD’s appellate division.
The case pending before the Maryland Supreme Court, Fooks v. State of Maryland, is stayed pending the U.S. Supreme Court’s ruling in United States v. Rahimi. In Rahimi, a case from the U.S. Court of Appeals for the 5th Circuit, the U.S. Supreme Court will decide whether a law that prohibits a person subject to domestic violence restraining orders from possessing a firearm facially violates the 2nd Amendment.
Zavin and other lawyers said that many state and lower federal courts are waiting for a decision in Rahimi, but Rahimi may not resolve all of the challenges that defense counsel have raised for the last two years, Zavin said in an email on Tuesday.
“Following Bruen, I have seen challenges to convictions brought in several ways,” Zavin said. “Most involve arguments that the government may not prohibit an individual from obtaining or carrying a firearm based on the individual’s particular status, for example because of certain prior conduct or orders against them or the fact that they are under the age of 21.”
Other challenges, Zavin said, involve individuals who are licensed to carry a firearm in another state.
James Astrachan, a partner at Goodell DeVries who also teaches courses focused on the 2nd Amendment, said Bruen “stood the world of gun laws on its head” by tasking courts with looking back to 1791 to determine what laws were in existence at that time.
“I don’t see these courts tossing these convictions out, and I don’t see the (U.S.) Supreme Court doing anything to reverse these convictions because I think the Supreme Court has opened up a Pandora’s box with this Bruen decision and is very happy that some of these circuit courts are trying to nail the box down right now,” Astrachan said.
Though courts will likely be — and have been — reluctant to reverse firearms convictions on this basis, Astrachan said, there could be one avenue for a successful 2nd Amendment challenge under Bruen.
“If you do see any movement in this area, it’s not going to be a court finding a violent criminal to be unconstitutionally prosecuted for holding a gun,” Astrachan said. “It’s going to be a situation where a nonviolent criminal — somebody who is a fraudster — somebody who may break the law without any sort of violent actions at all.”
Katie Kronick, assistant professor of law at the University of Baltimore School of Law and director of the school’s criminal defense and advocacy clinic, said there are a few issues ripe for challenge under Bruen in Maryland.
One area is Maryland’s prohibition on 18-to-20-year-olds obtaining firearms licenses, Kronick said.
“That issue has been litigated across several states and in some jurisdictions with success because there is no historical analog, and in fact the history indicates that people as young as 16 were able to own firearms lawfully,” Kronick said, noting other courts have also seen challenges raised under Bruen where a firearm is defaced or the serial number is scratched off.
“I think that’s sort of the low-hanging fruit in Maryland,” Kronick said. “I think that the serial number issue is bound to continue to pop up.”
So far, courts in Maryland have not found any firearms conviction to be unconstitutional under Bruen, with a federal court in the district of Maryland denying a defendant’s motion to dismiss a firearm conviction as unconstitutional under Bruen last year in U.S. v. Costianes. More recently, the Maryland Appellate Court in an April unreported opinion denied a Bruen challenge because the claim was not raised before the lower court.
But many defense lawyers will likely and should be raising these issues, Astrachan said.
“This is a whole new era, and I’m not really sure that the Supreme Court quite understood what it was bringing forth when it created this new standard in Bruen, where the burden is on the state to show that the regulation is in the nation’s historical tradition of firearm regulation or analogous,” Astrachan said.
