McLellan v. Brown: The Second Amendment Permits Categorical, Temporary Disarmament of Recidivist DUI Offenders Without Individualized Dangerousness Findings

1. Introduction

In McLellan v. Brown (Wash. June 11, 2026), the Washington Supreme Court reviewed an as-applied Second Amendment challenge to RCW 9.41.040(2)(a)(i)(D), which temporarily prohibits firearm possession by individuals convicted of two or more driving under the influence (DUI) offenses within seven years. Respondents Geoffrey G. McLellan (three DUI convictions within seven years) and Jackson W. Holloway (two within seven years) were denied concealed carry permits and filed a declaratory judgment action alleging the statute was unconstitutional as applied to them.

The trial court denied judgment on the pleadings and allowed further factual development, indicating there were material factual issues—particularly whether each respondent posed a “credible threat to public safety,” relying on United States v. Rahimi. The State sought direct interlocutory review. The Supreme Court accepted review to decide whether the Second Amendment requires an individualized dangerousness determination before applying this postconviction, time-limited firearms disability.

2. Summary of the Opinion

The court held that RCW 9.41.040(2)(a)(i)(D) is constitutional under the Second Amendment as applied to recidivist DUI offenders and that no individualized assessment of McLellan’s or Holloway’s dangerousness is required. The court reversed and remanded with instructions to enter judgment on the pleadings for the State.

Applying the N.Y. State Rifle & Pistol Ass’n v. Bruen historical-tradition framework and drawing on Rahimi, the court concluded that the statute fits within the Nation’s historical tradition of disarming groups presenting a “special danger of misuse,” particularly when the regulation is temporary and is triggered by repeated serious criminal conduct involving intoxicants. The court treated the legality as a question resolvable on the pleadings because the relevant inquiry is the nature of the regulation and the conviction category that triggers it—not case-specific dangerousness evidence.

3. Analysis

3.1 Precedents Cited

  • District of Columbia v. Heller, 554 U.S. 570 (2008): The court relied on Heller for two propositions: (1) the Second Amendment protects an individual right for lawful purposes (notably self-defense), but (2) “the right is not unlimited,” and certain “longstanding prohibitions” are “presumptively constitutional,” including restrictions concerning concealed weapons and “possession of firearms by felons and the mentally ill.” The majority used this language—without treating it as dispositive—to situate Washington’s law within a tradition of disarming persons deemed especially dangerous.
  • United States v. Miller, 307 U.S. 174 (1939): Cited through Heller for the “in common use” limitation and the tradition of prohibiting “dangerous and unusual weapons,” reinforcing the broader point that the Second Amendment has historically recognized limits.
  • N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): This decision provided the controlling method. The court emphasized Bruen’s allocation of the burden to the government and its requirement of “affirmatively” proving consistency with historical tradition through relevantly similar analogues focusing on “how” (burden) and “why” (justification). The court also invoked Bruen’s warning against deference to legislative interest balancing, while recognizing that analogical reasoning is not a “regulatory straightjacket.”
  • McDonald v. City of Chicago, 561 U.S. 742 (2010): Used to confirm the Second Amendment’s status as a fundamental right, heightening the need for historically grounded justification rather than means-end scrutiny.
  • United States v. Rahimi, 602 U.S. 680 (2024): The centerpiece for the parties’ dispute over individualized dangerousness findings. The trial court read Rahimi to require a “credible threat” assessment. The majority rejected that reading in the postconviction context, treating Rahimi as validating “temporary disarmament” of dangerous persons and as illustrating permissible analogues (surety and affray/going-armed laws), but not as requiring individualized findings whenever the government disarms a group based on criminal convictions.
  • Drummond v. Robinson, 9 F.4th 217 (3d Cir. 2021): Quoted by Bruen and reiterated here for the caution that courts should not uphold every modern law that only “remotely resembles” a historical analogue.
  • Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting): Cited for the historical/common-sense thesis that legislatures may prohibit “dangerous people” from possessing guns. The majority used this to bolster the proposition that categorical disarmament can be historically grounded, even as it recognized Bruen rejects simple legislative “interest balancing.”
  • United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc), cert. denied (2026): Important to the majority’s categorical approach. The court relied on Duarte for the proposition that disarmament may apply to a class “without having to perform an individualized determination of dangerousness as to each person in a class of prohibited persons,” particularly where the class bears a close relationship to physical danger.
  • Range v. Att’y Gen. U.S., 124 F.4th 218 (3d Cir. 2024): Cited as a contrast case noting the lack of evidence that certain nonviolent offenses (e.g., “food-stamp fraud”) are “closely associated with physical danger.” The majority used Range to frame “physical danger” as a key differentiator supporting categorical disarmament.
  • Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), cert. granted in part (2025), and Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), cert. denied (2025): Cited to show that courts have recognized a long historical tradition (including Reconstruction-era evidence) of regulating carrying firearms while intoxicated—supporting the “why” of preventing harm from intoxication interacting with weapons.
  • Medina v. Whitaker, 913 F.3d 152 (D.C. Cir. 2019): Cited for the historical observation that founding-era felony punishment (including death and forfeiture) suggests some offenders were understood to fall outside the protected scope of arms-bearing, reinforcing the “serious crimes” tradition.
  • United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024), cert. denied (2025): Used for the proposition that certain serious offenses, even if not classically violent, can pose a “real danger of public injury,” supporting a historical analogue for regulating serious, dangerous conduct that threatens public safety.
  • United States v. Connelly, 117 F.4th 269 (5th Cir. 2024): Addressed and rejected as setting the ceiling at only “present intoxication.” The majority instead accepted broader alcohol-related regulatory traditions and emphasized that Washington’s statute is triggered by repeated dangerous conduct, not mere “status.”
  • Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961): Quoted through Bruen for the phrase “unqualified command,” reinforcing that conduct can fall outside the command when historically justified.
  • State v. Huntly, 25 N.C. 418 (1843), and Blackstone: Appeared in the discussion of affray/going-armed laws in Rahimi, supplying historical content for analogical reasoning about preventing threats to public order and violence.
  • United States v. Hemani (cert. granted 2025): Not controlling, but noted as a pending Supreme Court case involving 18 U.S.C. § 922(g)(3), signaling ongoing doctrinal development around intoxication/substance-use-related firearms disabilities.

3.2 Legal Reasoning

  1. Framing the question as categorical and legal (not individualized and factual). The court’s pivotal move was procedural and conceptual: it held that, in a postconviction firearms-disability case, the Second Amendment inquiry focuses on whether the regulation fits within historical tradition, which turns on the nature of the law and the category of conviction that triggers disarmament. Therefore, the trial court erred by treating individual dangerousness as a material fact requiring development under Rahimi.
  2. Applying Bruen’s “how” and “why” analogical framework. The respondents conceded the statute satisfied the “why” (the public-safety rationale aligns with traditions regulating intoxication and firearms), but argued it failed the “how” (a total prohibition for years rather than a narrow ban while intoxicated). The court rejected a “historical twin” demand and accepted multiple strands of tradition as jointly supplying a sufficiently “relevantly similar” analogue.
  3. Three historical principles, assessed cumulatively. The court accepted the State’s argument that RCW 9.41.040(2)(a)(i)(D) fits within: (1) a tradition of restricting firearms for categories at heightened risk of violence (especially with a “plausible link to physical violence”); (2) a tradition of restricting firearms after serious criminal convictions; and (3) a tradition of regulating firearms in relation to intoxication and alcohol abuse. The court emphasized that “none of these traditions in isolation might be sufficient,” but together they justify the law, particularly as the legislature addresses “a uniquely modern problem.”
  4. Temporary, restorability, and recidivism mattered. The law is time-limited and allows restoration after five years of law-abiding behavior (RCW 9.41.041). The triggering condition is also recidivist—two DUI convictions within seven years—supporting the court’s view that the statute targets a demonstrated pattern of dangerous conduct, not a one-off lapse or “status.”
  5. Rejecting a broad “irresponsibility” theory while sustaining “danger” and “law-abidingness.” Aligning with Rahimi, the court rejected disarmament merely because a person is not “responsible.” But it accepted that repeated DUI convictions show a person is not “law-abiding” and that the conduct poses a “real danger of public injury,” fitting within historically recognized grounds for restricting arms from dangerous persons or serious offenders.

3.3 Impact

  • Clarifies postconviction Second Amendment methodology in Washington. The decision establishes that, for firearms disabilities triggered by criminal convictions, Washington courts should generally resolve constitutionality as a question of law by examining historical analogues for the category-based restriction—without requiring individualized dangerousness findings.
  • Expands “danger-based” disarmament beyond classic violent predicates (at least temporarily). While insisting on a “plausible link to physical violence” and rejecting mere “irresponsibility,” the court upheld disarmament grounded in repeated nonviolent conduct (DUI) viewed as sufficiently dangerous. This may encourage legislatures and litigants to debate which other nonviolent but high-risk convictions can qualify as historically analogous “danger” predicates (e.g., reckless endangerment-like offenses, repeated threats, or certain substance-related crimes), especially where the disability is temporary and restoreable.
  • Provides a template for defending modern public-safety firearm laws using multiple historical “strands.” The court’s cumulative-analogy approach—treating separate traditions as collectively sufficient—may be influential in future litigation involving mixed justifications (serious-crime tradition + intoxication tradition + dangerousness tradition), particularly when a direct founding-era twin is absent.
  • Signals limits: danger must be more than speculative. The majority’s “plausible link to physical violence” language attempts to cabin the doctrine by requiring more than a “possible or speculative connection.” Future cases may test the rigor of this requirement and the evidentiary/analytical showing needed to satisfy it under Bruen.
  • State constitutional questions remain open. Because respondents did not develop an argument under WASH. CONST. art. I, § 24, the decision leaves open whether Washington’s constitution could demand a different analysis in a future case.
  • Dissent frames an ongoing fault line after Rahimi. The dissent argued Rahimi requires a “credible threat” finding and that historical analogues (surety/affray laws) were tied to individualized dangerousness and firearm-related misuse, not nonviolent DUI conduct. That disagreement previews continued litigation over (1) whether “danger” must be individualized, (2) whether danger must be “violent” in a narrower sense, and (3) whether intoxication traditions support multi-year bans rather than moment-of-intoxication restrictions.

4. Complex Concepts Simplified

As-applied challenge
A claim that a law is unconstitutional as applied to these particular people, even if it might be valid in other situations. Here, the respondents argued the DUI-based firearm prohibition was unconstitutional specifically as applied to them.
Bruen’s “historical tradition” test
Instead of balancing public safety against individual rights, courts ask whether the government can prove the modern firearm regulation is consistent with historical regulations that are “relevantly similar.” The comparison focuses on “why” the law exists (its justification) and “how” it burdens the right (its severity and mechanism).
Analogical reasoning (not a “historical twin”)
The government does not need to find an identical founding-era statute. It needs a well-established, representative analogue that is similar in relevant ways—enough to show the modern law fits within accepted historical limits.
Surety and affray/going-armed laws
Historical laws used to prevent violence. Surety laws could require someone suspected of future misbehavior to post a bond (a financial guarantee) to keep the peace. Affray/going-armed laws punished carrying weapons in a manner meant to terrorize others and disturb public order. In Rahimi, the Supreme Court treated these as evidence that temporary disarmament of dangerous people can be consistent with the Second Amendment.
“Presumptively constitutional” prohibitions
Language from Heller indicating some longstanding restrictions (e.g., felon-in-possession) are generally lawful. The debate is how far that presumption extends and what historical proof is still required under Bruen.
Judgment on the pleadings
A procedural ruling decided from the complaint and answer alone, without trial evidence, when there are no material factual disputes necessary to resolve the legal issue. Here, the court held the constitutionality question could be answered as a matter of law.
Interlocutory review
Appellate review of a non-final trial court order. The court accepted immediate review rather than waiting for a full trial-court record.

5. Conclusion

McLellan v. Brown establishes a significant Washington precedent for Second Amendment litigation after Bruen and Rahimi: when a firearm prohibition is triggered by criminal convictions, courts should primarily evaluate the historical pedigree of the category-based regulation, and individualized dangerousness findings are not required to sustain a temporary postconviction firearms disability. Upholding RCW 9.41.040(2)(a)(i)(D), the court endorsed a cumulative-analogy approach that links recidivist DUI conduct to historical traditions regulating intoxication and weapons, serious offenses, and disarmament of groups posing a special danger of misuse—while leaving the dissent’s narrower “credible threat” reading as a focal point for future debate.