By Scalpel or Chainsaw: The Status of Pre-Bruen Case Law in the Lower Courts

The Second Amendment is in a state of flux. After the U.S. Supreme Court decided District of Columbia v. Heller, the lower federal courts coalesced around a means-end scrutiny test to judge the constitutionality of gun control laws. But enter New York State Rifle & Pistol Association v. Bruen. The analysis now centers around a test that focuses on text, history, and tradition. Courts have a new test with few guidelines about how to apply it. Given the lack of guidance, courts have struggled to answer a key question: What pre-Bruen case law is still valid? Utilizing the undocumented immigrant prohibitor, 18 U.S.C. § 922(g)(5), this Note answers that question. Before Bruen, eight federal courts of appeals had the opportunity to address the constitutionality of § 922(g)(5), and all of them upheld the statute using three different methods. After Bruen, some courts have treated each method differently, demonstrating the particularity with which they analyze Bruen and its implications—what this Note calls the “scalpel approach.” Others have abrogated all pre-Bruen precedent, thus starting the Second Amendment analysis anew—the “chainsaw approach.” In the end, this Note argues that the scalpel approach better reflects core judicial values like uniformity and institutional legitimacy and thus is the correct path for courts applying Bruen to take.