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Bruen Gun Decision Is Even Bigger Than You Think


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https://pjmedia.com/news-and-politics/victoria-taft/2022/08/04/the-supreme-courts-bruen-gun-decision-is-even-bigger-than-you-think-n1608747

 

The Supreme Court's Bruen Gun Decision Is Even Bigger Than You Think

BY VICTORIA TAFT AUG 04, 2022 6:36 PM ET

 

Since Supreme Court Justice Clarence Thomas made crystal clear in his ruling in New York Pistol and Rifle v. Bruen that the Second Amendment is not a second-class civil right, the question becomes: how far does this decision go? After consulting several gun and constitutional lawyers, here’s the short answer: very far. Read on.

 

Thomas stated unequivocally that Americans’ right to carry a gun outside the home has been treated as a second-class right in modern times. Indeed, the whims of politicians have been treated with more respect than bedrock constitutional principles surrounding Americans’ right to defend themselves with guns.

 

Thomas wrote, “we know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”

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Since the decision came out on June 23, I’ve sought the answer to the question I posed above. I’ve spoken to gun law experts around the country and sought to put things in perspective.

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Chuck Michel of the California Rifle and Pistol Association (CRPA) notified all 58 county sheriffs that the Bruen decision changed the state’s “may issue” or “good cause” to acquire a concealed gun permit. CRPA is already litigating California’s magazine limitation and assault weapons” bans, as well as bans on certain semi-automatic weapons, age limitations on the purchase of semi-automatic guns, and so-called “large capacity” ammo magazines.

 

 

And it turns out that all of those issues are impacted by the Bruen decision.

 

Constitutional law attorney Mike Davis, head of the Article III Project, told the Adult in the Room Podcast that from now on these kinds of limitations on guns will be required to be measured by “strict scrutiny.”

 

“The state has the heavy burden now of determining we’re a felon, unworthy, that we have a dangerous mental illness that puts the community in danger,” he said. “Governments can still regulate guns just like they can regulate speech but it’s going to be with a more exacting standard, strict scrutiny.” And he said, so are the laws about magazine sizes, semi-automatic limits, and bans.

 

William Kirk of Washington Gun Law said on the Adult in the Room Podcast that “Justice Thomas’s opinion makes it clear — there can be no debate about this – that when we are talking about these sorts of restrictive gun measures, the only analysis to use is strict scrutiny. [A]nd if that is the standard moving forward, if all the federal courts follow this very clear direction from the Supreme Court, then I don’t see how magazine bans survive. I don’t see how AR bans survive. I don’t see how many of these restrictive gun measures around the country … I don’t see how they’re going to survive constitutional scrutiny.”

 

Pennsylvania gun attorney Dillon Harris of the Firearms Industry Consulting Group, a division of the Civil Rights Defense Firm, indicated that all of these gun-grabbing laws are in the crosshairs. He told the Adult in the Room Podcast that previously the test to determine whether a gun law was constitutional was done under an immediate scrutiny threshold, which is a much easier test to measure government rules and regulations than strict scrutiny.

...

 

Harris says that if there was litigation in the pipeline concerning all of the gun bans, registrations, and age limitations then those cases are still “live” and will basically have to start over using the Bruen decision parameters. That’s good news for gun rights. Still, in some instances, “it may be the case that new litigation will have to be started again” depending on the jurisdiction the court is in.

 

Hannah Hill, director of research and policy at the National Foundation for Gun Rights, told Pew Trust Stateline that the “text, history and tradition” test eventually will lead to a day when people in every state can carry firearms without a permit. “This is going to have massive implications,” Hill said, adding that “it’s a radical test, and if applied accurately it will have radical results. A lot of gun laws will not be able to withstand Second Amendment scrutiny.”

 

Harris doesn’t agree with Hill’s characterization that the strict scrutiny test for all gun laws is “a radical test.” He thinks it’s constitutional. “I don’t agree that it’s a radical test. Heller proposed something like this and announced something like this and specifically rejected scrutiny tests, but the appellate courts never really took into that and they just kinda did what they wanted for the last few years.” They basically thumbed their nose at the law. That’s why the Supreme Court took the Bruen case.

 

But, he said, “I do think we’ll use it to gain a lot of ground in states with novel and onerous [regulations]. For example, microstamping… requiring newly manufactured firearms to have the capability to imprint that firearm’s serial number onto a shell casing when the gun is fired.” He says there’s no way to do that right now, and it would be “difficult to sustain under this historical test” imposed by Justice Thomas in his decision.

 

Red flag laws will come under new scrutiny under this decision as well, predicts Harris, who says, “there are first amendment issues, second amendment issues, and fourth, fifth, and sixth amendment issues” involved in these laws.

 

Oregon Firearms Federation leader Kevin Starrett told PJ Media that as a result of the Bruen decision there will be a wave of unscrupulous moves by officials trying mightily to get around it. “I think we are going to see chaos and massive disrespect for the law by elected officials. As you know, California just released all the private info of [concealed weapons permit] holders. There will be more vindictive actions like that.”

 

Starrett believes that changes to the current gun laws will take “several years before they get to SCOTUS” but cautions that the political prosecutions and other lawlessness by the feds will get worse. “I suspect that everything we have ever assumed about our legal processes will soon be history. We are basically in a lawless phase now where leftists ignore the law and the established rules and anyone who tries to live by them could find themselves in prison.”

 

Do Americans have expanded gun rights? And do those rights expand to other gun control limitations? Yes, but only if judges and attorneys general don’t ignore them.

 

See you in court. Again.

 

 

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I beg to differ, the new standard is not strict scrutiny, it's higher!

 

Scrict scrutiny would still allow the government to argue a compelling governmental interest on it's own as the entire defense of the law, the new test clearly requires historical context first then that historical context allowable infringement would be bound by scrict scruntiny second.  A scrict scrutiny argument alone should not be able to prevail under the Bruen test.

 

I firmly believe that Bruen put the 2nd in a class of it's own as far as government infringements are concerned due to the fact it literally says "shall not be infringed" implying our founding fathers wanted to make it clear this was as close to an absolute right as any right could be.

 

 

Edited by Flynn
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On 8/6/2022 at 3:26 PM, Flynn said:

I beg to differ, the new standard is not strict scrutiny, it's higher!

 

Scrict scrutiny would still allow the government to argue a compelling governmental interest on it's own as the entire defense of the law, the new test clearly requires historical context first then that historical context allowable infringement would be bound by scrict scruntiny second.  A scrict scrutiny argument alone should not be able to prevail under the Bruen test.

 

I firmly believe that Bruen put the 2nd in a class of it's own as far as government infringements are concerned due to the fact it literally says "shall not be infringed" implying our founding fathers wanted to make it clear this was as close to an absolute right as any right could be.

 

 

I have come across several lawyers that say Bruen requires strict scrutiny.    And if you bring up the THT, and mention Bruen disallows interest balancing they will argue THT is the same as strict scrutiny.   

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That may be because their thinking is bound by prior precedent.  There's been no case law developed yet using text history and tradition as a standard of review.  It will need to evolve, and SCOTUS may need to help that evolution along if the lower courts refuse to recognize it.  If that happens I believe Justice Thomas will have more to say about how to make these decisions.  A lot more.  He's tired of being ignored.

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On 8/6/2022 at 6:26 PM, mauserme said:

If that happens I believe Justice Thomas will have more to say about how to make these decisions.  A lot more.  He's tired of being ignored.

 

I feel this was as well, Thomas did not author a simple strict scrutiny decision, he created a new test over and above strict scutiny, it certainly would have been easier for him to simply tell the  courts to apply strict scrutiny and be done, but he intentionally and deliberately created a new test for the 2nd.

 

Thomas laid it out pretty clear, and I'm honestly surprised that claimed 'Constitutional lawyers' can't even seem to "get" what he said.

 

Quote

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution 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 Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

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Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying meansend scrutiny in the Second Amendment 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.

 

The dissent by Breyer pointed this out, so it's real hard to argue that is not the test to be applied going forward and it's not strict scutiny.

 

Quote

At the first step, the Courts of Appeals use text and history to determine “whether the regulated activity falls within the scope of the Second Amendment.” Ezell v. Chicago, 846 F. 3d 888, 892 (CA7 2017). If it does, they go on to the second step and consider “‘the strength of the government’s justification for restricting or regulating’” the Second Amendment right. Ibid. In doing so, they apply a level of “means-ends” scrutiny “that is proportionate to the severity of the burden that the law imposes on the right”: strict scrutiny if the burden is severe, and intermediate scrutiny if it is not. National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F. 3d 185, 195, 198, 205 (CA5 2012). The Court today replaces the Courts of Appeals’ consensus framework with its own history-only approach. That is unusual.

 

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Not a lawyer, but the historical angle seems to me like it might be vulnerable in the long run.

 

What piece of history do you go to for reference? Which segment of our society do you look to? How do you weigh the sometimes contradictory approaches?

 

Those and many other questions seem to make this approach potentially problematic.

 

But strict scrutiny -- yes!!!

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On 8/6/2022 at 8:40 PM, richp said:

What piece of history do you go to for reference?

 

The court seemed to imply the late 1700s (formation of the country) and secondly the late 1800s (the reconstruction era) I would suspect with a preference given to the formation era, certainly nothing after 1900.

 

Quote

Which segment of our society do you look to? How do you weigh the sometimes contradictory approaches?

 

I believe that is when scrict scrutiny comes into play aka weighting the historical text to see if it slaps 2nd rights or other rights on the face or not, as some (most) of the historal laws they passed were clearly racisted, sexist and/or punishment for those the government deemed not worthy or ordinances passed by lawless sheriffs in some remote town as they attempted to exert authority over the riff-raff, thus using those laws to support a similar law now is on a faulty foundation and nothing but strict scrutiny applied to the historical law should be applicable before it's appliled to to the Bruen test.

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On 8/6/2022 at 9:23 PM, mauserme said:

SCOTUS and some of the appellate courts have already done historical analyses in Heller, McDonald, Shepard/Moore, etc.  In cases where an analysis exists it may come down to simply applying it without any interest balancing.

 

Personally I find that flawed, the historic law has to be scrutinized at minimum to assure it's constitutional in other respects in addition to the the core 2nd right, take for example the plethora of laws banning blacks (both free and slave() from owning guns that existed before the civil war, I personally don't see how those laws could be cited in the Bruen test to allow gun bans, as they are built upon a flawed foundation, one that could theoretically pass a low level scrutiny test.

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Interest balancing for civil liberties protected by amendments other than 2A is about not committing crimes by the exercise of those liberties.

 

For example, freedom of speech does not mean freedom to incite riots or to defame. Freedom of religion does not mean freedom to practice FGM on minors (or anyone else without consent). Similarly, freedom to keep and bear arms does not mean freedom to commit violent crime.

 

The difference is that, for the most part, laws prohibiting hate speech, defamation, and FGM have not suspended the civil liberties of speech and the practice of religion, since such liberties also predominantly serve legal, productive purposes. Yet somehow laws prohibiting violent crime have been translated into suspending the civil liberty of keeping and bearing arms, even though that liberty also predominantly serves legal, productive purposes (e.g., defense of self and others to prevent violent crimes).

 

So when the Bruen decision tossed interest balancing for the 2A, I think that might have been overstated. Nobody is going to advocate making murder legal if it's committed with any arm. Clearly, that interest still gets balanced in favor of the prohibition against murder. To put it in more modern terms, there has been much comparatively recent legal formalization around the use of lethal force by private individuals (e.g., justified only to address lethal threats). I doubt that formalization will be swept away by Bruen just because it happened in the latter half of the 20th century.

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On 8/6/2022 at 10:04 PM, Flynn said:

 

Personally I find that flawed, the historic law has to be scrutinized at minimum to assure it's constitutional in other respects in addition to the the core 2nd right, take for example the plethora of laws banning blacks (both free and slave() from owning guns that existed before the civil war, I personally don't see how those laws could be cited in the Bruen test to allow gun bans, as they are built upon a flawed foundation, one that could theoretically pass a low level scrutiny test.

 

Are you saying that, if they try to argue that the Army and Navy Law prohibited ownership of most handguns for example, then the racist nature of that law would disqualify it as a basis for modern law?  Perhaps implicate current Saturday night special sorts of laws?
 

 

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On 8/7/2022 at 8:24 AM, mauserme said:

 

Are you saying that, if they try to argue that the Army and Navy Law prohibited ownership of most handguns for example, then the racist nature of that law would disqualify it as a basis for modern law?  Perhaps implicate current Saturday night special sorts of laws?

 

Yep, I believe that should be the case, many of the historical gun laws were nothing short of open and clear racism and discrimination and those laws should not be able to use to justify a new laws enactment.

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