In 2022, the Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen rejected the means-end analysis that federal circuits had applied to Second Amendment challenges to firearm regulations in favor of a new, burden-shifting analytical framework. 597 U.S. 1 (2022). Post-Bruen, if the Second Amendment’s plain text covers an individual and their conduct, the Constitution “presumptively protects that conduct.” Bruen, 597 U.S. at 24. The government must then justify its regulation by demonstrating that it is “consistent with the Nation’s historical tradition of firearm regulation.” Id.

In June 2024, the Court of Appeals for the Ninth Circuit, in United States v. Duarte, 101 F.4th 657 (9th Cir. 2024), reviewed the conviction of Steven Duarte under a provision of the Gun Control Act of 1968 that bars the possession of a firearm by any person “who has been convicted of a crime punishable by imprisonment for a term exceeding one year.” See 18 U.S.C. § 922(g)(1).

In 1989, the Supreme Court found in DeShaney v. Winnebago County Department of Social Services that State officials have no obligation to protect private citizens from violence or injury caused by other private citizens. DeShaney v. Winnebago Cnty. Dept. of Soc. Services, 489 U.S. 189, 194 (1989) (finding county authorities not liable when a child in its custody was seriously injured by his father). Writing for the Court, Chief Justice Rehnquist explained the Due Process Clause limits a state’s power to deprive individuals of “life, liberty, and property without due process,” but does not create an affirmative duty to protect individuals. Id. at 194, (quoting U.S. Const. amend. XIV, § 1). Thus, state actors cannot be held liable for harm caused to private citizens under 42 U.S.C. § 1983. However, in DeShaney, the Court identified two possible exceptions in which a private citizen may be entitled to protection. The first, known as the Special Relationship Exception, is often applied when a state incarcerates, institutionalizes, or restrains a person involuntarily. DeShaney, 489 U.S. at 198-99; see Christopher M. Eisenhauer, Police Action and the State-Created Danger Doctrine: a Proposed Uniform Test, 120 DICK. L. REV. 893 (2016).

In District of Columbia v. Heller, the Supreme Court ruled the Second Amendment confers an individual right to keep and bear arms to law-abiding, responsible citizens and “members of the political community” District of Columbia v. Heller, 128 S. Ct. 2783, 2790 (2008). In McDonald v. City of Chicago, the Court held the individual weapon-owning right to be a fundamental right incorporated against the states by the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chi., 130 S. Ct. 48 (2009).

More recently, many of the U.S. Circuit Courts of Appeal have examined precisely who can be considered a law-abiding citizen and members of the political community in this context. These cases have examined the constitutionality of 18 U.S.C. § 992(g), a provision of the amended Gun Control Act of 1968 that prohibits the sale or possession of firearms to nine categories of individuals, including undocumented immigrants. Specifically, these cases have questioned whether the Second Amendment and the right to bear arms apply to undocumented immigrants, thereby making § 992(g) unconstitutional.