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Abstract

This Note examines the evolving interpretation of the Second Amendment in light of recent Supreme Court precedent, with a particular focus on the constitutionality of 18 U.S.C. § 922(g)(3) under the test set forth in New York State Rifle & Pistol Ass’n v. Bruen. The Court has had relatively limited occasion to undertake a comprehensive interpretation of the Amendment; of the four major decisions to date, three have been issued within the past two decades. In United States v. Miller, the Court anchored its analysis in the context of militia service, establishing a precedent that would go largely unchallenged for nearly seventy years. That changed in 2008 with District of Columbia v. Heller, in which the Court explicitly recognized an individual right to bear arms. The Heller decision faced significant criticism for its departure from established precedent. Notably, while Heller affirmed the individual right, it concurrently endorsed a sweeping exception: legislatures could bar firearm possession by certain categories of persons, such as felons or the mentally ill, without offering any discernible limiting principle for such disqualifications.

In 2010, McDonald v. City of Chicago reaffirmed Heller and deemed the right to bear arms so fundamental as to warrant incorporation of the Amendment against the states through the Fourteenth Amendment. However, McDonald failed to clarify the significant caveat articulated in Heller. Between 2008 and 2022, lower courts applied a patchwork of meansend scrutiny that evaluated firearm regulations by balancing the degree of burden imposed on the core Second Amendment right against the government’s asserted interests. In 2022, the Supreme Court revisited the issue in Bruen, once again reaffirming Heller and McDonald, while rejecting means-end scrutiny in favor of a new test: (1) whether the regulated conduct falls within the Second Amendment’s scope, and (2) whether the regulation is consistent with the Nation’s historical tradition of firearm regulation through the use of regulatory historical analogues.

Since Bruen, few courts have meaningfully delineated the contours of what qualifies as a valid “historical analogue.” In 2024, the Eighth Circuit in United States v. Veasley addressed the constitutionality of § 922(g)(3), which prohibits firearm possession by individuals who are unlawful users of or addicted to controlled substances. Applying Bruen, the court upheld the statute, concluding that it comported with the Nation’s historical tradition of firearm regulation. Specifically, the court analogized § 922(g)(3) to prohibitions on possession of firearms by the mentally ill and to early affray laws—both of which, in the court’s view, reflected a permissible tradition of disarming those deemed dangerous or irresponsible.

This Note contends that the Eighth Circuit misapplied the Bruen test and that, although Bruen does not demand a historical analogue to be an exact twin, it demands more than generalized resemblances or abstract analogical reasoning. This Note asserts that courts ought to prioritize the subject matter, or essential conduct, of historical laws rather than their purported overarching purposes. Once this foundational similarity is established, the Bruen test operates with greater doctrinal coherence. Moreover, this Note argues that § 922(g)(3) represents the first federal attempt to disarm individuals based on drug use, and given that drug abuse has historically been addressed through materially distinct legal mechanisms, § 922(g)(3) should have failed the Bruen test even under existing jurisprudential standards. Finally, this Note argues that although § 922(g)(3) should be unconstitutional under the Second Amendment, it nonetheless reflects biblical principles concerning sobriety, responsibility, and the moral use of weapons, and is thus a morally appropriate law.

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