States struggle to implement new firearms policies because they are limited by two major forces: the political feasibility of passing new firearms legislation and an increasingly broad and individualized Second Amendment right. Due to this conflict, states continually return to one of few constitutional yet politically popular methods of gun control: enacting possession-based firearms laws. These laws are largely ineffective at reducing gun violence. In the 2022 Supreme Court decision New York Rifle and Pistol Association v. Bruen, the Court further expanded the scope of the Second Amendment to protect the individual’s right to bear arms outside of the home. Justice Clarence Thomas’s majority established a new, historically focused test to evaluate government restrictions on the right to purchase and carry a firearm in public. This new test expanded the scope of the Second Amendment right to limit the ways a government can burden the right of a citizen to carry a firearm in public for self-defense. Bruen was a notable expansion of the Second Amendment right first framed in District of Columbia v. Heller. This Comment critiques the most common method used by lawmakers to regulate firearms—criminalizing the possession of a firearm without a license. These laws are based on the idea that by imposing harsh penalties for those who possess a firearm without a license, potential wrongdoers will be deterred from possessing or utilizing a gun in the commission of a crime. Unfortunately, these possession-based deterrence laws have repeatedly been shown to have little to no meaningful reduction in crime or gun violence. Rather, they marginalize minorities, increase disparate sentencing for victimless crimes, and justify increasingly interventionist policing tactics without corresponding reductions in crimes involving firearms. Despite these shortcomings, legislatures continually return to possession-based deterrence laws because they remain constitutional in the wake of rapidly evolving Second Amendment law. For example, the Heller and Bruen decisions endorsed licensing schemes which utilize objective criteria to determine eligibility to possess or carry a gun for self-defense. Possession-based deterrence laws are also utilized because they are largely bipartisan: it is one of the few areas of gun control popular on both sides of the aisle. As a result, lawmakers may feel like these laws are the only action available in response to their constituents’ very real worries about rising gun violence. This legislative tension has only been exacerbated after Bruen, due in large part to Bruen’s more expansive view of the Second Amendment. After the Bruen decision, California and New York implemented progressive and novel approaches to reducing gun violence, such as their “good moral character” standards required to obtain a concealed carry permit and their significant expansion of background checks. Though meant to utilize an objective standard, these approaches will likely fail as they cannot escape the high constitutional bar set by Bruen. To combat an ineffective yet likely return to possession-based deterrence laws, state and federal lawmakers should be freed to experiment with such novel and innovative ways of combatting firearms violence. This can only happen if the Supreme Court clarifies or reevaluates the contours of the Second Amendment in its future decisions.
