Proof that YOUR Vote Matters and that Supreme Court Rulings Matter
By Victoria Taft, PJ Media, August 4, 2022
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.”
The decision didn’t touch on the issues of licensing, background checks, training requirements, or limiting who may have a gun permit in the case of felons and the mentally incapable.
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.
More questions arise. Does the decision affecting guns “in common use” also apply to bans on certain guns, such as AR-15s, that are owned by millions of American gun owners? What about parts you put on a gun? What about restrictions on what you put in a gun? Various states around the country limit gun accouterments such as ammunition, so-called “precursor [gun] parts,” magazine sizes, ammo size, stocks, sights, changeable lowers, and other parts. Four states require that special permits be obtained before being able to buy ammo. And there are several different kinds of permits for various bullet sizes. Clearly, these are attempts to create a barrier to defending yourself.
The Key Ways Justice Thomas Vanquished Gun Grabbers in his Bruen Decision
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.
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Referring to two previous gun cases, Justice Thomas wrote that “since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one 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 a second step that applies means-end scrutiny in the Second Amendment context.”
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.
