The U.S. Supreme Court’s Second Amendment jurisprudence has given birth in recent years to some ugly progeny, which the court has so far been reluctant to acknowledge as legitimate offspring of its reckless rulings. A New Hampshire man, abetted by the state’s attorney general, is now providing the court’s conservative majority with another opportunity to adopt the logical extension of its dangerously abstract theories about firearms.
Philip Marquis, a Rochester, N. H., resident, is asking the Supreme Court to hear his constitutional challenge to Massachusetts’ firearm licensing regulations as they pertain to out-of-state residents. John Formella, New Hampshire attorney general, has joined the attorneys general of 24 other Republican-led states in support of Marquis’ petition for a writ of certiorari to hear his case.
Briefly stated, the underlying facts are these: Marquis was involved in a car accident on Interstate 495 in Massachusetts in 2022. When police arrived, he informed them that he had an unloaded pistol on him. He was allowed to carry a concealed weapon in his home state, as is any New Hampshire resident not otherwise disqualified from firearm possession under federal law. But because he did not possess a Massachusetts license to carry a gun, he was charged with carrying a firearm without a license.
The District Court in Lowell, Mass., dismissed the charge against him on the grounds that the Massachusetts regulations failed to comport with the standard enunciated by the U.S. Supreme Court in a 2022 decision, New York State Rifle & Pistol Association v. Bruen. The court’s majority has held that any state licensing regime that awards licenses on a discretionary basis is unconstitutional; only laws that adhere to strict criteria are deemed to be constitutional under the Second Amendment. In Bruen, the justices also discovered, or invented, a rule that to be constitutional any firearms restriction must adhere to the historical tradition of firearms regulation dating from the nation’s earliest days. Of course, historians can and do differ on what that tradition consists of, and hard-pressed trial judges often lack the time and resources to delve into it.
Marquis’ quest for vindication next landed at the Massachusetts Supreme Court after the state appealed the dismissal of the charge. That court declared that the Bay State’s licensing system was in fact consistent with the Second Amendment because the criteria used are specific and objective, and because keeping guns out of the hands of demonstrably dangerous people is within the country’s historical tradition.
Marquis and the attorneys general are now asking the U.S. Supreme Court to overturn that ruling on the grounds that the licensing system in fact affords the state police licensing official substantial discretion to determine dangerousness; that the fees charged for a license are excessive; that the long waiting times to process applications are unduly burdensome for out-of-state residents; and that the licensing requirements impede the constitutional right to travel freely.
For all we know, they might have a point under the analysis applied in the Bruen case. It is worth noting, however, that while the plaintiffs disclaim any intention of overturning the Massachusetts law as it pertains to that state’s residents, a ruling in favor of Marquis would undoubtedly have that effect in that it undermines the whole rationale that a state may act to protect the public from potentially dangerous people. It makes little difference if you are shot by an out-of-state resident as opposed to someone living in the same state.
Perhaps such practical considerations have stayed the hand of the Supreme Court since Bruen. As the New Hampshire Bulletin news site has reported, the court has declined to hear other challenges to gun regulations imposed by states and in 2024 came to its senses long enough to find that disarming defendants in cases of domestic violence does not run afoul of the Second Amendment, despite there being little historical tradition of doing so.
But as Joseph Blocher, a law professor and co-founder of the Duke Center for Firearms Law, pointed out to the Bulletin, many unanswered questions are vexing lower federal courts in light of the Bruen decision: Do felons have a constitutional right to possess firearms? Are age restrictions permissible? What about caps on high-capacity magazines and state bans on assault rifles? Are locale-based restrictions such as gun-free school zones OK?
The U.S. Supreme Court has historically been looked to to provide clarity where legal confusion reigns. But when it comes to the Second Amendment, the current court has only sown confusion. And so far, it has ducked responsibility for clarifying it. Maybe the best we can hope for is the court continuing to shrink from endorsing the practical effects of its theoretical abstractions.