Full Impact

Almost 11 Months After Bruen, Courts Lay Down Law

It’s been almost 11 months since the U.S. Supreme Court handed down its landmark ruling in New York State Rifle & Pistol Association v. Bruen, a decision authored by Associate Justice Clarence Thomas, which could be the most important Second Amendment victory in recent memory.

Bruen builds nicely on the groundwork already put down by the 2008 Heller ruling and the 2010 McDonald decision. Heller established decisively that the Second Amendment protects an individual right to keep and bear arms in the home for self-defense. McDonald affirmed that local governments cannot outright ban possession of firearms and more importantly, incorporated the Second Amendment to the states via the 14th Amendment. Henceforth, whether a state has a right to bear arms provision in its state constitution, all states must comply with the Second Amendment.

Then, 12 years after McDonald, along comes Bruen, which declared New York State’s restrictive concealed carry law — designed more to prevent lawful carry than license and allow it — unconstitutional. And it has a critical section, which did away with what amounted to an invention by the lower federal courts to protect restrictive gun control laws by establishing “means-end” scrutiny in addition to the historical meaning and perspective.

Supreme Court Associate Justice Clarence Thomas authored the 2022
Bruen ruling, and it has had a dramatic effect on lower court rulings on
Second Amendment cases. (Image in public domain.)

In Thomas’ words, “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,” Thomas continued. “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.”

A few paragraphs later, the Justice added, “Despite the popularity of this two-step approach, it is one step too many.”

Naturally, the gun prohibition crowd has been in hysterical withdrawal ever since, with many anti-gunners clinging to the myth that the high court was wrong, and that the amendment clearly applies only to a state’s “right” to maintain a militia. It is a thoroughly discredited position, but people opposed to legal gun ownership are a stubborn lot.

Minnesota Ruling

The Bruen ruling came down on June 23, 2022. About two months ago, in a Second Amendment Foundation (SAF) case known as Worth v. Harrington, U.S. District Judge Katherine Menendez — relying on the Bruen decision — struck down a state law restricting handgun carry permits to citizens over age 21.

Alan Gottlieb is founder and executive vice president of the Second
Amendment Foundation. His motto: “Winning firearms freedom, one lawsuit at a time.”

Judge Menendez infuriated the gun ban bunch, writing, “In the decade of litigation following Heller, Courts of Appeals around the country adopted a variety of balancing tests which weighed a government’s interest in a particular gun control measure against the extent and nature of that law’s infringement of Second Amendment rights … Indeed, every Circuit Court to address the issue prior to Bruen gave weight in the analysis to the societal goals served by the regulation at issue … But Bruen rejected any ‘two-step,’ ‘means-end scrutiny’ entirely. Instead, the Court adopted the following test for evaluating whether a government regulation of firearms is permissible:

“[W]e 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.”

Judge Menendez lowered the proverbial boom by stating, “The Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen … compels the conclusion that Minnesota’s permitting age restriction is unconstitutional, and Plaintiffs are entitled to judgment as a matter of law.”

Long story short: Constitutional rights apply to young adults, same as they apply to older citizens.

Garden State Victory

Back in January, New Jersey’s restrictive gun control law prohibiting the carrying of handguns in certain “sensitive places” earned a temporary restraining order from U.S. District Court Judge Renée Marie Bumb in another SAF case, known as Koons v. Reynolds.

This one went over with gun banners like a dog drinking from the punchbowl. Judge Bumb’s 60-page ruling was full of bad news for the anti-gun Legislature in Trenton.

Among her observations, she wrote, “The Bruen Court was clear in its instruction to this Court when undertaking a constitutional analysis of a state’s gun control legislation. This Court must rely on history to inform the meaning of constitutional text rather than make empirical judgments about the costs and benefits of firearms restrictions. As the Court explained, “[i]f the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of ‘intermediate scrutiny’ often defer to the determinations of legislatures.”

And there was more: “Again, Defendants must be able to rebut the presumption that the challenged conduct is constitutionally protected by ‘demonstrat[ing] that the regulation is consistent with this Nation’s historical tradition of firearm regulation.’ To reiterate, Defendants ‘may not simply posit that the regulation promotes an important interest. Rather, the [Defendants] must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.’”

No Wiggle Room

Depending upon the specific court and judge(s), the Bruen ruling established a new guideline for the lower courts which hopefully put an end to rulings that always seemed tilted in favor of the gun control laws being challenged.

That doesn’t leave much wiggle room for the individual rights deniers, and it’s a cinch they don’t like it. Get out the crying towels.

For generations, gun control proponents have been ratcheting down on the right to keep and bear arms, but over the course of the past 14 years, from June 2008 to June 2022, the sea has changed dramatically. The gun prohibition lobby, with its billionaire backers, will keep trying to dance around the high court’s affirmative rulings. Just how long the Supreme Court will let them get away with it remains to be seen.

Death in the Cemetery

We’ve heard of ironic shootings over the years, but one that happened two months ago in Ambler, Penn. was downright strange, involving a fellow who was shot dead in — of all places — a cemetery, and authorities say it was self-defense.

According to NBC News in Philadelphia, Montgomery County District Attorney Kevin Steele decided not to charge a man identified as Arian Davis, 33, of Philadelphia in the shooting death of 29-year-old Daniel Hawkins, also from Philly.

Steele determined that Davis fired in self-defense when he apparently was attacked by Hawkins, who reportedly “showed up alone at a birthday party at the grave of Tyrek Fairel — who was killed in a Norristown shooting in 2013 — in a stolen vehicle, armed with a handgun that had been illegally modified into a fully automatic weapon.”

According to the report, Hawkins apparently spotted Davis sitting in a car with a friend. Hawkins approached the vehicle and opened fire with the altered pistol. Bad luck for Hawkins because Davis was legally armed, and he fired back. He had been injured in the hand, leg and jaw.

So, let’s recap. A guy shows up at a birthday party, in a cemetery, in a stolen car with an illegally altered gun, only to be shot dead by somebody he was apparently trying to kill. I can hardly wait to see the movie.

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