Challenging Kentucky Firearms Laws After Bruen: Text,...

A New Framework for Second Amendment Challenges

The Supreme Court’s decision in NYSRPA v. Bruen, 597 U.S. 1 (2022), established a new analytical framework for evaluating firearms regulations under the Second Amendment. Under this framework — known as the text, history, and tradition test — the government bears the burden of demonstrating that any firearms restriction is consistent with the Nation’s historical tradition of firearms regulation. This represents a fundamental shift in Second Amendment jurisprudence, and it has opened the door to constitutional challenges that were previously impossible. At Clark + Harris in Lexington and Louisville, our attorneys apply this framework to challenge firearms restrictions on behalf of Kentucky clients.

How the Test Works

The Bruen test operates in two steps. First, the court determines whether the Second Amendment’s plain text covers the individual’s conduct. If it does — if the individual seeks to “keep” or “bear” “arms” — the conduct is presumptively protected. Second, the burden shifts to the government to justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearms regulation.

Step One: Plain Text

The first step is usually straightforward. The Second Amendment protects the right to “keep and bear arms.” If a regulation restricts an individual’s ability to possess or carry a firearm, it burdens conduct covered by the plain text. This step encompasses virtually all firearms regulations, from felon-in-possession laws to concealed carry restrictions to magazine capacity limits.

Step Two: Historical Tradition

The second step is where the real work happens. The government must identify historical analogues — firearms regulations from the founding era (1791) or the Reconstruction era (1868) — that are relevantly similar to the challenged modern regulation. The analogues need not be identical to the modern regulation, but they must be similar in both “how” they burden the right and “why” they do so.

For example, a modern regulation that prohibits possession of firearms by individuals found to be dangerous might be justified by historical surety laws that required individuals who had threatened violence to post bonds or forfeit weapons. The “how” is similar (temporary disarmament of specific individuals) and the “why” is similar (public safety from identified threats).

Applying the Test to Kentucky Firearms Laws

KRS 527.040 — Felon in Possession

Kentucky’s felon-in-possession statute is the most obvious candidate for a Bruen challenge. The statute imposes a blanket prohibition on all convicted felons, regardless of the nature of their offense, the time since their conviction, or their current circumstances. Under the text, history, and tradition test, the government must demonstrate that this blanket prohibition is consistent with historical tradition.

The historical evidence is contested. While there is evidence of founding-era laws disarming specific categories of dangerous individuals, there is less evidence of laws that permanently disarmed all persons convicted of any felony. The strongest challenges focus on non-violent felons, for whom the historical case for disarmament is particularly thin.

Kentucky DVO Firearms Restrictions

Kentucky’s DVO statutes (KRS 403.740 et seq.) can include provisions requiring the surrender of firearms. Under Rahimi, the federal analogue — § 922(g)(8) — has been upheld as constitutional. State-level DVO firearms restrictions likely survive under the same analysis, given the historical tradition of disarming individuals who pose credible threats of violence.

Building a Strong Historical Argument

The success of a Bruen challenge depends heavily on the quality of the historical analysis presented to the court. This requires deep research into founding-era and Reconstruction-era firearms regulations, legal treatises, state constitutions, and other historical sources. It also requires the ability to present this research persuasively — distinguishing favorable precedents, addressing unfavorable ones, and crafting a narrative that connects the historical evidence to the modern constitutional question.

At Clark + Harris, our attorneys invest significant resources in developing historical arguments for our Bruen-based challenges. We work with historians, legal scholars, and other experts to build the strongest possible case for our clients’ Second Amendment rights.

The Evolving Landscape

The post-Bruen legal landscape is changing rapidly. New decisions are issued regularly, and the Sixth Circuit — which covers Kentucky — is actively shaping the law in this area. Staying current on these developments is essential for anyone considering a Second Amendment challenge or evaluating their firearms rights in light of Bruen.

Don’t risk a federal firearms charge by assuming your rights are restored. Call Clark + Harris at 859-474-0001 for a legal analysis of your specific situation. Our Lexington and Louisville attorneys are at the forefront of post-Bruen Second Amendment litigation and can evaluate whether a constitutional challenge may benefit your case.

Frequently Asked Questions

How soon should I contact Clark + Harris after being charged in Kentucky?

As soon as possible. Early representation protects your rights during questioning, preserves evidence, and often leads to better outcomes. Call 859-474-0001 — we respond promptly to new inquiries.

Does Clark + Harris represent clients throughout Kentucky?

Yes. We represent clients in all 120 Kentucky counties, both state District and Circuit courts, and federal courts in the Eastern and Western Districts of Kentucky.

What happens during a free consultation with Clark + Harris?

We review the specific charges and evidence, discuss available defenses, explain the likely process in the relevant court, and give you a clear roadmap of next steps — at no cost to you.

Related Resources

If this information applied to your situation, the following Clark + Harris guides may also be helpful:

Challenging Kentucky Firearms Laws After Bruen: Text, History, and Tradition Test