Litigating gun rights: an interview with Pete Patterson

A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

The Supreme Court has already agreed to hear two cases this term involving Second Amendment challenges to firearms regulations, with several more petitions pending. Given that the Second Amendment is at the forefront of Supreme Court litigation, I could think of no one better to speak to than Pete Patterson, a partner at Cooper & Kirk PLLC (where I am of counsel).

Pete, in addition to being a great colleague and accomplished litigator, is one of the top Second Amendment experts in the country. He has represented parties raising Second Amendment challenges in scores of cases, including before the Supreme Court in Snope v. Brown, where the Supreme Court last term narrowly denied cert in a case challenging Maryland’s ban on AR-15 rifles. He has also argued nearly 20 Second Amendment cases in the federal courts of appeals in the two-and-a-half years since the court decided New York State Rifle & Pistol Ass’n v. Bruen, in which it held that New York’s concealed carry law violated the Second Amendment.

Pete agreed to speak with me about his experience litigating those cases and his perspective on some of the most pressing questions in Second Amendment law. Our conversation is below, which has been edited for length and clarity.

This is not your first SCOTUSblog interview. You previously spoke with Nate Mowry about Bondi v. VanDerStok, which you argued before the court last term. What surprised you most about appearing before the justices?

I have been fortunate enough to be at counsel table for other Supreme Court arguments, so there was not much about the argument itself that came as a surprise. One thing that I did really come to appreciate about the process is the support that goes into making an effective day at the court possible, including colleagues at the firm doing everything they could to help prepare me, lawyers at other firms going out of their way to participate in moots, and staff at the court ensuring that my wife and kids could be at the argument.

VanDerStok involved firearms, but not the Second Amendment. You did not get to put the Second Amendment on the back burner while you prepared for that argument, though, did you?

I did not. While VanDerStok primarily was a statutory interpretation case in which the court upheld a government regulation redefining when an item becomes a “firearm” under federal law, I also argued Range v. Garland before the en banc [full court] 3rd Circuit the day after VanDerStok. I therefore had the privilege of arguing before 24 federal judges in a 24-hour period. Range was a case challenging the federal ban on the possession of firearms by felons not wholesale but in the specific case of an individual who had a decades-old conviction for excluding lawn mowing income from a food stamp application. The 3rd Circuit ultimately ruled for our client by a vote of 13-2. The federal government did not seek Supreme Court review, and the issue of whether and in what circumstances a non-violent offender can seek as-applied relief from the federal felon-in-possession ban is one that is the subject of disagreement in the federal courts of appeals and that the Supreme Court has yet to resolve.

When and how did you become involved in Second Amendment litigation?

Cooper & Kirk has a longstanding and distinguished Second Amendment practice. For example, Chuck Cooper, the firm’s chairman, argued in the 5th Circuit in [the 2001 case of] United States v. Emerson, which was the first modern federal court of appeals decision to hold that the Second Amendment protects an individual right to keep and bear arms. I joined Cooper & Kirk in 2009, shortly after the Supreme Court decided District of Columbia v. Heller [in which it held that the District of Columbia’s ban on possessing handguns was unconstitutional].

How has Second Amendment doctrine and practice changed since then?

At that time, and until the court’s 2022 decision in Bruen, the biggest Second Amendment issues were what standard would apply to Second Amendment cases and whether ordinary Americans had a right to carry firearms in public. Bruen resolved both of those issues, holding that Second Amendment claims are to be resolved based on text and history and that ordinary Americans do have a right to carry firearms in public. The three years since have been spent working out the implications of that decision, including essentially redoing litigation over issues that had been resolved under the wrong standard before Bruen.

As a reminder for readers, the Bruen text-and-history analysis has two stages. At the outset, the court asks whether the plain text of the Second Amendment covers the conduct in which the law’s challenger wishes to engage. If so, the court proceeds to ask whether the law that burdens that conduct is part of the nation’s historical tradition of firearm regulation. Some have worried about the burden the court’s decision in Bruen places on lower courts to do historical research. How has that been?

It has been less of a change than one might think. Even before Bruen, the first thing courts would ask is whether the conduct in question fell within a historically established exception to the scope of the Second Amendment right. If it did not (or if it was unclear), they would then go on to ask whether the government nevertheless had a good-enough reason for restricting the right, which typically involved the government advancing public-safety justifications allegedly supported by social scientific evidence. Bruen did away with this second step, so if anything the court reduced the burden on courts and litigants. 

Under Bruen, the government bears the burden to identify historical traditions of firearm regulation that support the law. Do you think that is an onerous burden for the government?

It is onerous in the sense that there should be a high bar for finding an exception to the right to keep and bear arms, but it is not onerous in the sense of putting an unusual or atypical burden on the government. In fact, the analysis is similar to that in the First Amendment context. There, the court has recognized several historical exceptions to the right to free speech – things like obscenity, defamation, and incitement. The courts are now in the process of identifying similar exceptions in the Second Amendment context. For example, in United States v. Rahimi the court recognized an exception allowing temporary disarmament of those found by a court to pose a credible threat to the physical safety of another.

Because Bruen rejected the lower courts’ old way of approaching Second Amendment challenges, courts are still figuring out how to proceed. You have recently written about two recurring challenges for the Harvard Journal of Law & Public Policy. Your first one is called Common Use Is Not a Plain-Text Question. Can you please explain what the “common use” inquiry is?

In Heller, and again in Bruen, the Supreme Court explained that the Second Amendment protects the right of citizens to possess arms that are in common use for lawful purposes. Therefore, to justify a law banning a certain type of arm, the government should have to prove that the arm is not in common use – in other words, that it is a dangerous and unusual weapon. If the government cannot make that showing, then the people have a right to possess that arm and it cannot be banned.  

Some courts have concluded that the “common use” inquiry is part of the plain text analysis, but you argue that it is the ultimate question to be decided under the historical tradition analysis. Why?

The first part of the Bruen analysis is whether a law implicates the “plain” or “bare” text of the Second Amendment. And Heller explained that at the founding as at present, the term “arms” meant weapons of offense or armor of defense. That’s it. Nothing in the plain text turns on the commonality of a particular weapon. Instead, Heller indicated that the common use test was supported by the historical common law barring the carry of dangerous and unusual weapons in a terrifying manner.

Another recurring problem you’ve written about: how to handle laws that are only partially supported by a historical tradition of firearm regulation. To use an example from your piece: Let’s say hypothetically there was a historical tradition of prohibiting firearms in urban parks. And let’s say a state today enacts a law that prohibits carrying firearms in all parks, rural parks included. What do we do about that?

The law should be declared facially unconstitutional because the state has not established from history that it can ban carrying firearms in parks. That is the restriction that is in the statute, and that is the restriction that the state should have to defend. It shouldn’t matter that the state potentially could justify a narrower restriction. Because the law is facially unconstitutional, it would not be constitutional to apply it in any circumstances.  

This is the only answer that is consistent with Heller. There, the Supreme Court declared that the District of Columbia’s ban on possessing handguns was facially unconstitutional, despite simultaneously suggesting that at least some handguns could be banned – namely, automatic ones.

And just to be clear: Is there a tradition of excluding firearms from urban parks?

We have argued that there is not, but even if there were, that would not support rejecting a challenge to a ban on firearms in all parks.

What does it take to make a sufficient showing of a history of firearms regulation? How many laws or practices do you need, from what historical period, and how do we describe the tradition those laws represent?

These are all issues that are hotly contested, but I will give you what I think is the view most consistent with Bruen and Supreme Court precedent generally.

First, the relevant historical period should be centered on 1791, when the Second Amendment was ratified. The court has held in many cases that when provisions of the Bill of Rights apply to the states, they have the same meaning as they have against the federal government. It should follow that the meaning was set in 1791, when those provisions were first ratified and applied to the federal government. To be sure, those rights were not incorporated against [applied to] the states until the passage of the Fourteenth Amendment in 1868, but that amendment did not purport to change the substantive meaning of the Bill of Rights. This conclusion is consistent with the court’s practices, including its holding in Espinoza v. Montana Department of Revenue that the laws of over 30 states from the second half of the 19th Century could not alone “establish an early American tradition” that would inform the meaning of the First Amendment’s establishment clause.   

Second, what the government should have to establish is a limitation that was widely understood by Americans at ratification to qualify the scope of the right to keep and bear arms. The common law frequently will be a primary resource in this inquiry, as that was law that was understood to be generally applicable. The common law is reflected in sources like case law and prominent secondary sources such as Blackstone’s Commentaries. Of course, the focus should be on the prevailing American understanding rather than British understandings that Americans may have repudiated, so consulting American sources like Tucker’s Blackstone is an important part of the inquiry. Statutes also play a role, of course, but the government should have to show that any statutes it relies on are consistent with the prevailing, general understanding and not a departure from it. That presumably is why Bruen repeatedly emphasizes that a handful of outlier statutes cannot establish a tradition of regulation.

Third, the tradition should be described at a level of generality that is general enough not to make arbitrary distinctions, but specific enough not to risk eviscerating the right. If readers are interested in the level-of-generality question, I recommend the brief my colleague John Ohlendorf filed in Wolford on behalf of professor [Joel] Alicea, which address that question at some length.  

These questions are front and center in Wolford v. Lopez. That case involves a Hawaii law that prohibits carrying firearms onto private property open to the public, such as gas stations and grocery stores, without the express permission of the property owner. I think a lot of people might hear about that law and think, “That’s sensible. I have no right to bring a gun onto someone else’s property.” But courts have repeatedly held that this sort of law does implicate the Second Amendment. Can you explain why?

As a matter of plain text, the Second Amendment protects the general right to carry firearms. Hawaii’s law prevents the carriage of firearms in certain places unless certain conditions are met. It therefore implicates the plain text of the Second Amendment in a straightforward way.  

The upshot is that the government must come forward with a historical tradition into which this law falls. In upholding Hawaii’s law, the 9th Circuit drew on a few historical regulations, but let’s focus on one: a Louisiana law that was enacted right around the time that the Fourteenth Amendment was ratified. It looks pretty similar to Hawaii’s law in that it prohibited carrying firearms on at least some private property without advance permission. Does it support Hawaii’s law?

It does not, for a multitude of reasons.

First, it was enacted in 1865, which is much too late to establish a founding-era history of regulation.

Second, it is a single statute, which is not sufficient to establish a history of regulation.

Third, it is not analogous to Hawaii’s law, as historical context indicates that it was meant to restrict where people could hunt without advance permission, not where people could carry firearms more generally.

Fourth, it was not a valid part of our nation’s history at all. The law was enacted by Louisiana before that state was readmitted to the Union after the Civil War. It was part of Louisiana’s notorious Black Codes. The Black Codes were laws passed by Southern states after the Civil War that sought to restrict the freedoms of the newly freed former slaves. This particular provision was aimed at restricting the ability of former slaves to support themselves through subsistence hunting instead of returning to plantations to be employed by their former masters.  

We do a deep dive into this history in an amicus brief Cooper & Kirk has filed in Wolford.

The Supreme Court will have plenty of opportunities to tackle these questions over the next several years. There are quite a few petitions for certiorari that are currently pending, and many challenges working their way through the lower courts. Can you tell us about your pending cases and the questions they raise?

There are several issues that are ready for Supreme Court review. I will mention a few examples to provide an idea of the types of issues that may be coming soon to the court, while making clear that this is not a comprehensive list.

First is the constitutionality of bans on semiautomatic rifles like the AR-15. Under Heller’s common use test, it should be clear that AR-15s are protected and cannot be banned. Indeed, in a unanimous opinion last term the Supreme Court described the AR-15 as “the most popular rifle in the country.” Yet the lower courts have generally upheld bans on AR-15s. The Supreme Court should take this issue soon. There were three votes for cert last term in Snope v. Brown, and a fourth Justice, Justice Kavanagh, voted to deny cert but explained that “this Court should and presumably will address the AR-15 issue soon, in the next Term or two.” There are several petitions currently before the court presenting this issue, and there are several in the pipeline behind them, including pending cases in the 3rd, 7th, and 9th Circuits.

Second is the constitutionality of bans on purchasing or carrying firearms by 18-to-20-year-old adults. There is a circuit split on these issues, with several circuits holding that such restrictions violate the Second Amendment, and several circuits holding that they do not. There are several cert petitions pending at the court presenting this issue.

Third is the constitutionality of so-called “sensitive place” restrictions. Notably, the Wolford case before the court does not involve such a restriction. Rather, the presumptive ban at issue in Wolford only is material in locations that Hawaii has not deemed sensitive, because in those “sensitive” locations members of the public cannot lawfully carry even if a property owner authorized them to. Cooper & Kirk has a petition before the court in a case from the 7th Circuit challenging Illinois’ ban on carrying firearms on public transportation, and there are several cases presenting these types of restrictions in the courts of appeals, including before the en banc 3rd Circuit.  

Fourth is the constitutionality of the federal law barring felons from possessing firearms. Several circuits have held that the law is subject to as-applied challenges by certain felons, while other circuits have held that the law is constitutional in all of its applications, regardless of the nature of the predicate offense. Again, there are several cert petitions before the court on this issue. United States v. Hemani, one of the cases the court will hear this term, involves a related provision prohibiting individuals who unlawfully use controlled substances from possessing firearms.  

Any closing words on where things stand?

I would say that we are in the “normal science” part of Second Amendment litigation. Heller and Bruen were paradigm-shifting decisions that established the framework for evaluating Second Amendment claims. The courts and litigants are now in the process of working out the implications of those decisions. And while things may seem a bit chaotic at times as we work out what the historically informed limits are on the Second Amendment, eventually we should reach a state that is similar to that of the First Amendment, where the exceptions are well-defined and litigation frequently starts with those exceptions rather than going back to historical first principles in every case.