By Bruce Stanfield @ Shutterstock.com
The recent major ruling by the Supreme Court against New York’s concealed carry regime has opened the door for challenges to other unconstitutional gun laws. Justice Clarence Thomas’s majority opinion created a pathway for challenging other laws that anti-gun politicians use to keep law-abiding citizens from owning firearms for their self-defense. The Wall Street Journal’s Jacob Gershman reports:
The high court previously held in 2008 that the Second Amendment guarantees an individual the right to keep handguns in the home. Justice Clarence Thomas’s majority opinion in Bruen extended that holding, striking down New York’s handgun-permitting regime that denied law-abiding residents the ability to carry a concealed weapon unless they could show a special need for self-protection. The Second Amendment, the court said, guarantees “the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.”
In doing so, the opinion waded into a more fundamental question of how courts generally are supposed to decide whether a gun law is impermissible under the Second Amendment.
For years, many appellate courts had used a two-part test: First they would determine whether a gun law falls under the historical scope of Second Amendment. And then, if so, courts would weigh the policy reasons justifying the law.
Such an inquiry often factored in statistical evidence around gun violence and mass shootings, about the perpetrators behind them and the types of weapons used in attacks. It allowed states to defend gun laws by arguing that they would prevent shootings and save lives.
Justice Thomas’s opinion stripped down the review standard, instructing judges to ask solely whether a gun regulation is “consistent with the Nation’s historical tradition of firearm regulation,” rather than make empirical policy judgments.
Within days of the opinion landing, gun-rights advocates mobilized their legal teams. The Firearms Policy Coalition, a leading Second Amendment rights organization, brought lawsuits in federal courts in New York and New Jersey, challenging the states’ bans on various types of semiautomatic firearms, citing the Bruen decision.
New York’s weapons ban—enacted in the wake of the 2012 massacre at Sandy Hook Elementary School in Newtown, Conn.—prohibits possession of AR-15-style semiautomatic rifles that can fit a detachable magazine and have one of several other listed features, like a flash suppressor, heat-shielding barrel shroud or a folding stock.
In 2015, the Second U.S. Circuit Court of Appeals in New York upheld the state’s weapons ban, noting that they “are disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown.”
The Firearms Policy Coalition’s new complaint asserts that the Bruen opinion “abrogated” that 2015 decision. New York’s weapons ban, the lawsuit states, “cannot be justified by reference to any countervailing governmental interest.”
A spokesperson for the New York state attorney general’s office declined to comment.
Citing the Bruen decision, gun-rights advocates are also asking the Ninth U.S. Circuit Court of Appeals in San Francisco to halt enforcement of a similar California law that criminalizes the sale of various models and types of semiautomatic rifles.
The Ninth Circuit ruled last year that California can continue to enforce the ban, pending the appeal of a June 2021 lower-court decision by U.S. District Judge Roger Benitez, a President George W. Bush appointee, who declared it unconstitutional.
Attorneys for California have asked the Ninth Circuit, rather than suspend enforcement, to instead toss Judge Benitez’s decision and essentially reset the case. Doing so, they argued, “would allow the district court to answer a number of important questions about how Bruen should be applied.”
The impact of Bruen has begun to reverberate in lower courts. Citing the case, a Democratic-appointed federal judge in Colorado on Friday temporarily blocked enforcement of a similar gun ban enacted in the Boulder County town of Superior.
And at least one federal appeals court judge has suggested that California’s weapons ban might not survive a post-Bruen review.
Action Line: When anti-gun politicians pass unconstitutional gun laws, the only hope for citizens is that the courts will set things right. Thanks to Clarence Thomas and the other justices on the court who joined his opinion, citizens are regaining some of their control. No matter what is happening in the courts, you should get your gun and your training now. In the meantime, click here to sign up for my free monthly Survive & Thrive letter, and we’ll weather the storm together.
E.J. Smith - Your Survival Guy
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