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State v. Ramos
STATE OF CONNECTICUT v. BRANDON RAMOS
(AC 47779)
Suarez, Westbrook and Wilson, Js.
Syllabus
Convicted, after a trial to the court, of criminal possession of a firearm in violation of statute ((Rev. to 2021) § 53a-217 (a) (1)), the defendant appealed. He claimed that the court improperly denied his motion to set aside its finding of guilty because his conviction, which was based on a prior conviction of misdemeanor assault in the third degree, rendered § 53a-217 (a) (1) unconstitutional, facially and as applied to him, under the second amendment to the United States constitution and New York State Rifle & Pistol Assn., Inc. v. Bruen (597 U.S. 1). Held:
This court concluded that the record was inadequate to review the defendant’s constitutional claims under the framework announced in Bruen, as the trial court denied the defendant’s motion without conducting an evidentiary hearing or making factual findings concerning the conduct underlying the defendant’s prior assault conviction, the nature of the conduct encompassed by the misdemeanor assault provision in (Rev. to 2021) § 53a-217 (a) (1), or the nation’s historical tradition of firearm regulation relevant to that provision; accordingly, the judgment was reversed and the case was remanded for an evidentiary hearing during which the parties were to have an opportunity to develop the factual and historical record necessary for the trial court to determine whether the challenged provision of (Rev. to 2021) § 53a-217 (a) (1) was consistent with the second amendment and withstands the constitutional scrutiny required by Bruen.
Argued June 1—officially released October 13, 2026
Procedural History
Substitute informations charging the defendant with
the crimes of murder, carrying a pistol without a permit
and criminal possession of a firearm, brought to the
Superior Court in the judicial district of New Haven,
where the charges of murder and carrying a pistol without a permit were tried to the jury before P. Brown, J.;
verdict of guilty of the lesser included offense of manslaughter in the first degree with a firearm and carrying
a pistol without a permit; thereafter, the court granted
the defendant’s motion for a mistrial; subsequently, the
charge of criminal possession of a firearm was tried to
the court; finding of guilty; thereafter, the court denied the defendant’s motion to set aside the court’s guilty
State v. Ramos
finding and rendered judgment of guilty, from which
the defendant appealed to this court. Reversed; further
proceedings.
Kayla R. Stephen, deputy assistant public defender,
for the appellant (defendant).
Jonathan M. Sousa, assistant state’s attorney, with
whom, on the brief, were John P. Doyle, Jr., state’s attorney, Seth R. Garbarsky, supervisory assistant state’s
attorney, and Alexander C. Beck, senior assistant state’s
attorney, for the appellee (state).
Opinion
WILSON, J. The defendant, Brandon Ramos, appeals
from the judgment of conviction of criminal possession of
a firearm in violation of General Statutes (Rev. to 2021)
§ 53a-217 (a) (1).1 On appeal, the defendant claims that
1
In his principal brief on appeal, the defendant challenges the constitutionality of “§ 53a-217 (a) (1) (C).” We note, however, that the offense underlying the defendant’s conviction occurred in 2021, he was arrested in 2021, and he was charged pursuant to the revision of § 53a-217 then in effect. See General Statutes (Rev. to 2021) § 53a-217 (a) (“[a] person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of . . . a violation of section . . . 53a-61”).
Number 21-67, § 6, of the 2021 Public Acts (P.A. 21-67, § 6), effective June 1, 2022, amended subsection (a) (1) of § 53a-217 by, inter alia, adding subparagraph (C), which limited the statute’s disqualifying misdemeanors to offenses committed during the preceding twenty years. The amendment did not otherwise materially alter the statute in a manner relevant to the defendant’s constitutional challenges in the present case. See P.A. 21-67, § 6 (“[s]ection 53a-217 of the general statutes is repealed and the following is substituted in lieu thereof . . . (a) [a] person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of . . . (C) a misdemeanor violation of section . . . 53a-61”).
We note, too, that § 53a-217 has been amended subsequent to P.A. 21-67, § 6. See Public Acts 2023, No. 23-53, § 1; Public Acts 2023, No. 23-203, § 1. Because the 2023 amendments have no bearing on the merits of this appeal and the addition of subparagraph (C) in P.A. 21-67, § 6, does not materially impact the defendant’s constitutional challenges, all references to § 53a-217 in this opinion are to the revision of the statute under which the defendant was charged and convicted. See General Statutes (Rev. to 2021) § 53a-217 (a) (1).
State v. Ramos
the trial court improperly denied his motion to set aside
its guilty finding, rendered after a trial to the court,
because § 53a-217 (a) (1) is unconstitutional, both facially and as applied to him, under the second amendment to
the United States constitution and the United States
Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). We conclude that the judgment of
the trial court must be reversed and the case remanded
for an evidentiary hearing on the defendant’s motion.
The following undisputed facts and procedural history
are relevant to the present appeal. Following the shooting death of the victim, Jyineez Cruz, on August 22, 2021,
the defendant was charged in a substitute information
with criminal possession of a firearm in violation of
§ 53a-217 (a) (1). The defendant elected to be tried to the court on that charge. At the conclusion of the evidence,
on March 25, 2024, the court, P. Brown, J., found the
defendant guilty of criminal possession of a firearm. In
articulating the basis for its finding, the court stated
that the fact that the charge had been tried to the court
did not affect the validity of the parties’ stipulation as to the defendant’s previous misdemeanor conviction of
assault in the third degree and specifically referenced the stipulation, which was admitted as court exhibit 6 and
stated: “As to the [t]hird [c]ount of the [i]nformation in which the defendant is charged with [c]riminal [p]ossession of a [f]irearm, the parties hereby stipulate that the defendant had been previously convicted (on August 17,
2018) of a misdemeanor offense, to wit: [a]ssault 3rd.”2
2
In a separate substitute information, the defendant was charged with murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes (Rev. to 2021) § 29-35 (a). The defendant elected a jury trial on these charges. The jury found the defendant not guilty of murder but guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a and carrying a pistol without a permit.
After the jury delivered its verdict and was excused, and as the trial court began to render its finding on the criminal possession of a firearm charge, the clerk notified the court and the parties that court exhibit 6 had been included in the evidence that was brought to the jury
State v. Ramos
Subsequently, on May 30, 2024, the defendant filed a
motion to set aside the trial court’s finding of guilty on the charge of criminal possession of a firearm, arguing
that his conviction violated the second amendment to the
United States constitution both facially and as applied to him.3 Specifically, the defendant argued that the state
could not satisfy its burden of proving, pursuant to New
York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 1, that criminalizing his possession of a firearm based on his prior conviction of misdemeanor assault in
the third degree, in violation of General Statutes § 53a61,4 is consistent with the nation’s historical tradition of firearm regulation because, according to the defendant,
assault in the third degree is a nonviolent, nondomestic
violence misdemeanor. The defendant “[requested] that
the court set aside the defendant’s conviction, order further briefing on the merits of this nuanced legal issue,
and [hold] an evidentiary hearing thereafter.”
deliberation room along with the other “full” exhibits. The defendant immediately moved for a mistrial due to the jury’s exposure to the information regarding his prior misdemeanor conviction. The prosecutor opposed the motion and, instead, requested that the court recall the jurors to inquire whether they had considered court exhibit 6 during their deliberations. After hearing argument from the parties, the court granted the defendant’s motion for a mistrial on the jury’s verdict.
3
The defendant also asserted in his motion to set aside the trial court’s guilty finding that it violated article first, § 17, of the Connecticut constitution. The defendant has not raised or briefed any state constitutional claim on appeal, and, therefore, we deem any such claim abandoned. See, e.g., State v. Elson, 311 Conn. 726, 766, 91 A.3d 862 (2014) (“to receive review, a claim must be raised and briefed adequately in a party’s principal brief, and . . . the failure to do so constitutes the abandonment of the claim”); State v. Thompson, 98 Conn. App. 245, 248, 907 A.2d 1257 (“[o]ur practice requires an appellant to raise claims of error in his original brief” (internal quotation marks omitted)), cert. denied, 280 Conn. 946, 912 A.2d 482 (2006).
4
General Statutes § 53a-61 (a) provides: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”
State v. Ramos
On May 31, 2024, prior to the defendant’s sentencing, the trial court heard oral argument on the defendant’s motion. Defense counsel argued that, although
no Connecticut court has addressed whether criminalizing firearm possession based on a prior conviction of
misdemeanor assault in the third degree is consistent
with the second amendment, several federal jurisdictions have invalidated “felon-in-possession” statutes in
cases where those disqualifying felonies were nonviolent.
Defense counsel again requested that the court set aside
its finding “or, at a minimum, order further briefing
and a hearing on [the] matter given the recent influx
of cases addressing these types of issues.” In response,
the prosecutor argued that the court should deny the
motion because there was “nothing specifically about [the
defendant’s] case that should set him apart from other
individuals who have been convicted of a violent offense,
albeit a misdemeanor.” The court denied the motion,
stating: “Having considered the defense argument in
support of its motion to set aside the verdict, the court
denies the motion on the grounds that the charge of which
the defendant was found guilty, criminal possession of a
firearm, [§] 53a-217, is constitutional both facially and
as applied to [the defendant].” Thereafter, the court
sentenced the defendant to ten years of incarceration,
execution suspended after eight years, two years and one
day of which were mandatory, followed by five years of
probation. This appeal followed.
On appeal, the defendant claims that § 53a-217 (a) (1)
is unconstitutional both facially and as applied to him,
and, therefore, his conviction of criminal possession of
a firearm must be vacated.5 Specifically, the defendant
argues that the state cannot satisfy its burden of demonstrating, pursuant to Bruen, that criminalizing his
5
In his motion to set aside the trial court’s finding of guilty on the criminal possession of a firearm charge, the defendant specifically stated that he is challenging only the portion of § 53a-217 (a) (1) that applies following a conviction of assault in the third degree under § 53a-61. The defendant is not challenging any other portion of § 53a-217 (a) (1).
State v. Ramos
possession of a firearm based on his prior conviction of
assault in the third degree is consistent with the nation’s historical tradition of firearm regulation because, according to the defendant, assault in the third degree is a
nonviolent, nondomestic violence misdemeanor. As to
the defendant’s facial challenge, the state contends that
the defendant cannot establish that § 53a-217 (a) (1) is
facially unconstitutional because, even assuming that
the second amendment protects individuals convicted
of misdemeanor assault, there may be circumstances
in which the violent nature of the conduct underlying
such a conviction constitutionally permits disarmament.
With respect to the defendant’s as applied challenge,
the state advances three arguments: (1) the defendant
has inadequately briefed the claim; (2) the defendant
failed to present sufficient evidence to support it; and
(3) the collateral bar rule precludes our review of the
claim.6 We conclude that, because the record was not
adequately developed in the trial court as to whether
§ 53a-217 (a) (1) is unconstitutional, either facially or as applied to the defendant, the case must be remanded to
the trial court for further proceedings, specifically, an
evidentiary hearing on the defendant’s constitutional
challenge to § 53a-217 (a) (1) as raised in his motion to
set aside the court’s guilty finding.
Before addressing the parties’ arguments, we set forth
the applicable standard of review and relevant legal
principles. Generally, “[t]he proper appellate standard
of review when considering the action of a trial court
granting or denying a motion to set aside a verdict . . .
is the abuse of discretion standard.” (Internal quotation
marks omitted.) State v. Sunila, 98 Conn. App. 847,
6
The collateral bar rule generally applies when a defendant seeks to challenge “the validity of a [prior] court order” in a subsequent proceeding arising from the defendant’s violation of that order. (Internal quotation marks omitted.) State v. Enrrique H., 353 Conn. 823, 840, 347 A.3d 1156 (2025); see also State v. Wright, 273 Conn. 418, 426–27, 870 A.2d 1039 (2005). In the present case, however, the defendant does not challenge the validity of his prior conviction of assault in the third degree. Rather, he challenges the constitutionality of § 53a-217 (a) (1)
State v. Ramos
850, 911 A.2d 773 (2006). “The constitutionality of a
statute [however] presents a question of law over which
our review is plenary.” (Internal quotation marks omitted.) State v. Meadows, 185 Conn. App. 287, 302–303,
197 A.3d 464 (2018), aff’d sub nom. State v. Cody M.,
337 Conn. 92, 259 A.3d 576 (2020).
It is well established “that [l]egislative enactments
carry with them a strong presumption of constitutionality. . . . A party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable
doubt. . . . In the absence of weighty countervailing
circumstances, it is improvident for the court to invalidate a statute on its face. . . . This burden is especially heavy in the context of a facial challenge. . . . Additionally, we indulge every presumption in favor of the
constitutionality of the statute and approach a claim of
unconstitutionality with caution, examine it with care,
and sustain the [statute] unless its invalidity is clear.” (Citations omitted; internal quotation marks omitted.)
State v. Russo, 221 Conn. App. 729, 757, 303 A.3d 279
(2023), cert. denied, 348 Conn. 938, 307 A.3d 273 (2024).
“The United States Supreme Court has noted
that to mount a facial challenge to a statute, one
must establish that no set of circumstances exists
under which the [statute] would be valid. The fact
that the [statute] might operate unconstitutionally under some conceivable set of circumstances
is insufficient to render it wholly invalid . . . .”
(Internal quotation marks omitted.) Shawmut Bank,
N.A. v. Valley Farms, 222 Conn. 361, 368, 610 A.2d 652,
cert. dismissed, 505 U.S. 1247, 113 S. Ct. 28, 120 L. Ed.
2d 952 (1992). “A facial challenge . . . means a claim that the law is invalid in toto—and therefore incapable of any
valid application. . . . A facial challenge, as compared to an as applied challenge is not dependent on the facts of a particular case.” (Citations omitted; internal quotation
marks omitted.) State v. Long, 268 Conn. 508, 522 n.21,
insofar as it criminalizes possession of a firearm based on that conviction. The collateral bar rule, therefore, does not apply.
State v. Ramos
847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424,
160 L. Ed. 2d 340 (2004).7
“On the other hand, [a]n as-applied attack . . . does
not contend that a law is unconstitutional as written
but that its application to a particular person under
particular circumstances deprived that person of a constitutional right.” (Internal quotation marks omitted.)
United States v. Mitchell, 652 F.3d 387, 405 (3d Cir.
2011), cert. denied, 565 U.S. 1275, 132 S. Ct. 1741, 182
L. Ed. 2d 558 (2012). “An as applied challenge requires
an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the [defendant] to whom it
was applied of a protected right.” (Internal quotation
marks omitted.) Goe v. Zucker, 43 F.4th 19, 30 (2d Cir.
2022), cert. denied sub nom. Goe v. McDonald, 598 U.S.
1211, 143 S. Ct. 1020, 215 L. Ed. 2d 188 (2023).
The second amendment to the United States constitution provides: “A well regulated Militia, being necessary
to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In District of Columbia v. Heller, 554 U.S.
570, 595, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008),
the United States Supreme Court held “that the [s]econd
[a]mendment [confers] an individual right to keep and
7
To successfully challenge the facial validity of a statute, however, “a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 515, 871 A.2d 986 (2005); see also State v. McKenzie-Adams, 281 Conn. 486, 499–500, 915 A.2d 822 (limiting analysis to defendant’s as applied challenge in case in which defendant’s claim encompassed both facial challenge and as applied challenge to constitutionality of statute) (overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014), and overruled in part on other grounds by State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012)), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007); Ramos v. Vernon, 254 Conn. 799, 849 n.4, 761 A.2d 705 (2000) (Sullivan, J., concurring in part and concurring in the result) (“although the nonexistence of a factual record is not fatal to a facial challenge, the perilous endeavor of forging constitutional doctrine in a factual vacuum should cause us to consider facial challenges only in exceptional circumstances”).
State v. Ramos
bear arms” and “elevates above all other interests the
right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” Thereafter, in McDonald
v. Chicago, 561 U.S. 742, 750, 130 S. Ct. 3020, 177 L.
Ed. 2d 894 (2010), the Supreme Court reaffirmed Heller
and extended the individual second amendment right to
the states through the fourteenth amendment.
After Heller and McDonald, courts coalesced around
a two step framework for assessing second amendment
challenges. “That two step framework required a court
first to assess whether the challenged statute burdened
conduct protected by the second amendment. . . . If the
first step was satisfied, the court would move to the second step of the inquiry, at which it would [evaluate] the
law under some form of means-end scrutiny. If the law
passe[d] muster under that standard, it [was] constitutional. If it fail[ed], it [was] invalid.” (Citation omitted; internal quotation marks omitted.) State v. Giannone,
228 Conn. App. 11, 16–17, 323 A.3d 360 (2024).
In Bruen, however, the Supreme Court concluded
that “Heller and McDonald do not support applying
means-end scrutiny in the [s]econd [a]mendment context.
Instead, the government must affirmatively prove that
its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep
and bear arms.” New York State Rifle & Pistol Assn.,
Inc. v. Bruen, supra, 597 U.S. 19. The court held that,
“when the [s]econd [a]mendment’s plain text covers an
individual’s conduct, the [c]onstitution presumptively
protects that conduct. To justify its regulation, the
government may not simply posit that the regulation
promotes an important interest. Rather, the government must demonstrate that the regulation is consistent
with this [n]ation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with
this [n]ation’s historical tradition may a court conclude
that the individual’s conduct falls outside the [s]econd
[a]mendment’s unqualified command.” (Internal quotation marks omitted.) Id., 17.
State v. Ramos
Thus, Bruen “requires courts to assess whether modern
firearms regulations are consistent with the [s]econd
[a]mendment’s text and historical understanding.” Id.,
26. “When confronting such present-day firearm regulations, this historical inquiry that courts must conduct
will often involve reasoning by analogy—a commonplace
task for any lawyer or judge.” Id., 28. “[A]nalogical
reasoning requires only that the government identify a
well-established and representative historical analogue,
not a historical twin.” (Emphasis in original.) Id., 30.
In other words, “a modern-day regulation” need not be
a “dead ringer for historical precursors . . . to pass constitutional muster.” Id. Instead, the regulations must be
“relevantly similar” in light of “at least two metrics: how and why the regulations burden a law-abiding citizen’s
right to armed self-defense.” Id., 29.
More recently, in United States v. Rahimi, 602 U.S.
680, 690, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), the
United States Supreme Court again addressed the scope
of the second amendment and held that, when an individual has been found by a court to pose a “credible threat to the physical safety” of others, that individual may
be temporarily disarmed “consistent with the [s]econd
[a]mendment . . . .” In so holding, the court provided some additional guidance on the Bruen test and explained that
“the appropriate analysis involves considering whether
the challenged regulation is consistent with the principles that underpin our regulatory tradition. . . . A
court must ascertain whether the new law is relevantly
similar to laws that our tradition is understood to permit, apply[ing] faithfully the balance struck by the founding generation to modern circumstances. . . . Why and
how the regulation burdens the right are central to this
inquiry.” (Citations omitted; internal quotation marks
omitted.) Id., 692.
Accordingly, under Bruen and Rahimi, “[t]he initial
step requires that the defendant, as the party challenging the statutes at issue . . . show, by a preponderance of the evidence, that his conduct falls within the plain text of
State v. Ramos
the second amendment, i.e., that the items at issue, first, are ‘arms,’ and second, are in common use or typically
possessed for lawful purposes like self-defense. . . . If the defendant makes the necessary threshold showing as to
any of the firearms or related components at issue, then
the plain text of the second amendment ‘presumptively
protects’ the defendant’s right to keep and bear that
firearm or related component.8 . . . The second step then
requires the state to affirmatively prove, by presenting
‘relevantly similar’ historical analogues, that its regulation of the protected ‘arm’ is nonetheless ‘consistent with the [n]ation’s historical tradition of firearm regulation’ and is, therefore, constitutional.” (Citations omitted;
footnote added.) State v. Giannone, supra, 228 Conn.
App. 38–39.
In the present case, the defendant first claims that
§ 53a-217 (a) (1) is facially unconstitutional because it
categorically prohibits firearm possession by individuals
who have been convicted of misdemeanor assault in the
third degree, including persons whose prior convictions
involved nonviolent, nondomestic violence conduct.
The state responds that the statute cannot be held to be
facially unconstitutional because there may be circumstances in which the conduct underlying a misdemeanor
assault in the third degree conviction is sufficiently
violent to justify disarmament under the second amendment. We conclude that the present record is inadequate
to resolve the parties’ competing constitutional claims.
8
We note that the analysis of the historical tradition is relevant “only if the [s]econd [a]mendment’s plain text covers an individual’s conduct . . . and this threshold inquiry requires courts to consider three issues: whether the conduct at issue is protected, whether the weapon concerned is in common use, and whether the affected individuals are ordinary, law-abiding, adult citizens and thus part of the people whom the [s]econd [a]mendment protects.” (Citation omitted; internal quotation marks omitted.) Antonyuk v. James, 120 F.4th 941, 981 (2d Cir. 2024), cert. denied, ___ U.S. ___, 145 S. Ct. 1900, 221 L. Ed. 2d 646 (2025); see also New York State Rifle & Pistol Assn., Inc. v. Bruen, supra, 597 U.S. 31–32 (resolving all three of these questions before proceeding to historical analysis).
State v. Ramos
As previously outlined, a facial challenge presents
the question of whether a statute is unconstitutional
in all of its applications. See State v. Long, supra, 268
Conn. 522 n.21. Thus, to resolve the defendant’s facial
challenge, we must determine whether § 53a-217 (a) (1)
categorically requires the disarmament of persons with
qualifying misdemeanor convictions and, if so, whether
that is “consistent with this [n]ation’s historical tradition of firearm regulation.” New York State Rifle & Pistol
Assn., Inc. v. Bruen, supra, 597 U.S. 17. In making that
determination, we must consider the historical evidence
presented by the parties and determine whether the
challenged regulation is “relevantly similar” to historical regulations that our tradition permits. See United
States v. Rahimi, supra, 602 U.S. 692.
In the present case, however, the trial court denied the
defendant’s motion to set aside its guilty finding without conducting an evidentiary hearing or making factual
findings concerning the challenged statute, the nature
of the conduct encompassed by its misdemeanor assault
disqualification, or the historical tradition of firearm
regulation relevant to that disqualification. Rather,
without conducting an evidentiary hearing and applying the Bruen test, the court, in a conclusory manner,
simply stated: “Having considered the defense argument
in support of its motion to set aside the verdict, the court denies the motion on the grounds that the charge of which
the defendant was found guilty, criminal possession of
a firearm, [§] 53a-217, is constitutional both facially
and as applied to [the defendant].” The court, therefore,
did not make the necessary factual findings to conclude
that the second amendment presumptively protects the
defendant’s conduct; see Antonyuk v. James, 120 F.4th
941, 981 (2d Cir. 2024) (noting that, under Bruen, court
must first consider whether second amendment’s plain
text covers individual’s conduct), cert. denied, ___ U.S.
___, 145 S. Ct. 1900, 221 L. Ed. 2d 646 (2025); nor did
it conduct the historical analysis required to determine
whether the challenged categorical disqualification is
State v. Ramos
“consistent with this [n]ation’s historical tradition of
firearm regulation.” New York State Rifle & Pistol Assn.,
Inc. v. Bruen, supra, 597 U.S. 17. Consequently, the
record before us is inadequate to review the defendant’s
constitutional claims under the framework announced
in Bruen and Rahimi.
In State v. Giannone, supra, 228 Conn. App. 11, this
court confronted a similar deficiency. There, the trial
court had rejected the defendant’s constitutional challenges under the pre-Bruen framework without holding
an evidentiary hearing or making the factual findings
necessary to apply the framework established in Bruen.
See id., 31. This court concluded that it was “necessary
to remand” the case “to the trial court to give the parties the opportunity to develop the evidentiary record and to
allow the court to consider the defendant’s claim under
Bruen in the first instance.” Id., 31–32. We further
explained that, on remand, the trial court was required
to consider evidence presented by the parties and to make
factual findings consistent with Bruen. See id., 35–39.
The same considerations apply in the present case. As
in Giannone, the parties here have presented competing arguments concerning the constitutionality of the
challenged firearm regulation, but the trial court has
not afforded the parties an opportunity to develop the
factual and historical record necessary to resolve those
arguments, nor has it made relevant findings in this
regard. Bruen instructs that courts “are not obliged
to sift the historical materials for evidence to sustain
[a] statute.” New York State Rifle & Pistol Assn., Inc.
v. Bruen, supra, 597 U.S. 60. Rather, “[c]ourts are . . .
entitled to decide a [second amendment] case based on
the historical record compiled by the parties.” Id., 26
n.6; see also State v. Giannone, supra, 228 Conn. App.
35 (“we decline to resolve the present appeal by applying other courts’ factual findings and sifting through
historical materials as a substitute for the development
of an evidentiary record compiled by the parties, which
we find is necessary to conduct the analysis that Bruen
State v. Ramos
requires”). We therefore decline to undertake the historical inquiry in the first instance on the basis of a record that was never developed.
The defendant next argues that § 53a-217 (a) (1) is
unconstitutional as applied to him. As to his as applied
challenge, the defendant argues that “[t]he only facts
necessary for this court to conduct the necessary [as
applied] Bruen analysis here are that: the defendant was
previously convicted of assault in the third degree . . .
§ 53a-61; assault in the third degree is not a crime of
family violence, nor does it contain any elements related
to the assault of an intimate partner; the defendant
possessed a firearm; Connecticut’s criminal possession
of a firearm statute . . . § 53a-217 (a) (1) criminalized
the defendant’s possession of a firearm because of his
predicate misdemeanor assault conviction; and the relevant history and tradition of firearms regulation in
this nation.”
We disagree that the existing record is sufficient
to resolve the defendant’s as applied challenge. An as
applied challenge requires the trial court to analyze
“the facts of a particular case to determine whether the
application of a statute, even one constitutional on its
face, deprived the [defendant] to whom it was applied
of a protected right.” (Emphasis added; internal quotation marks omitted.) Goe v. Zucker, supra, 43 F.4th 30.
Here, however, the court did not afford the defendant an
opportunity to develop and present evidence concerning
the particular circumstances of his predicate misdemeanor conviction or to explain why, in light of those
circumstances, application of § 53a-217 (a) (1) to him is
inconsistent with the second amendment. The court did
not conduct an evidentiary hearing, did not make findings concerning the conduct underlying the defendant’s
prior assault conviction, and did not otherwise develop
a record concerning the facts relevant to his as applied
claim. Because those facts bear directly on whether the
state can establish through “relevantly similar” historical analogues that disarming the defendant is “consistent
State v. Ramos
with this [n]ation’s historical tradition of firearm regulation”; New York State Rifle & Pistol Assn., Inc. v. Bruen, supra, 597 U.S. 17; the trial court’s failure to afford the defendant an opportunity to develop that factual record
precludes us from resolving his as applied challenge in
the first instance. Consequently, the record before us is
inadequate for our review of the parties’ as applied claims under the framework announced in Bruen and Rahimi.9
Accordingly, we remand the case to the trial court
for an evidentiary hearing and further proceedings on
the defendant’s facial and as applied challenges consistent with Bruen, Rahimi and Giannone.10 See, e.g.,
Atkinson v. Garland, 70 F.4th 1018, 1020, 1022 (7th
Cir. 2023) (“the best course is to remand to allow the
[D]istrict [C]ourt to undertake the Bruen analysis in the
first instance” and to allow “proper, fulsome analysis of
the historical tradition”). On remand, the parties shall
have an opportunity to develop the factual and historical
record necessary to determine whether the challenged
9
The state contends that the defendant inadequately briefed his as applied constitutional challenge. We recognize that the defendant does not identify the specific facts underlying his prior conviction of assault in the third degree, explain how the circumstances of that offense affect the constitutional analysis, or otherwise distinguish his as applied claim from his facial challenge. Nevertheless, under the unique circumstances of this case, we decline to deny appellate review on this ground. The defendant did not have an opportunity in the trial court to develop the factual record underlying his as applied claim because the trial court denied his request for an evidentiary hearing and summarily rejected his constitutional claims without making the appropriate factual findings. Under these circumstances, the limitations in the defendant’s briefing are, at least in some part, a consequence of the trial court’s failure to provide the parties with an opportunity to develop the record necessary for the claim. Therefore, we conclude that the appropriate course is to remand the as applied challenge, as well as the facial challenge, to permit the parties to develop the factual and historical record and to allow the trial court to consider the claims in the first instance under Bruen and Rahimi.
10
Although the court in Giannone “construe[d] the defendant’s claim as to each statute to be that it is unconstitutional as applied to the particular facts of his cases,” the court “[d]id not . . . intend to preclude the defendant from arguing on remand that the statutes are unconstitutional on their face . . . .” State v. Giannone, supra, 228 Conn. 21 n.12.
State v. Ramos
provision of § 53a-217 (a) (1) is consistent with the second amendment both facially and as applied to the defendant.
The trial court shall consider the evidence presented by
the parties, make such factual findings as are necessary,
and determine in the first instance whether the statute withstands the constitutional scrutiny required by
Bruen, Rahimi and Giannone.
The judgment is reversed and the case is remanded for
further proceedings consistent with this opinion.
In this opinion the other judges concurred.