The U.S. Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen did more than strike New York’s “may issue” subjective concealed carry permitting scheme. The ruling also told lower courts that attempting to balance the individual’s Constitutional right to keep and bear arms against the government’s interest in controlling that right violates the Constitution.
In other words, the Supreme Court told the lower courts to cut it out.
That’s significant, since this has been a practice adopted by lower courts to seemingly always justify keeping gun control laws in place that ranged from subjective “may issue” concealed carry permitting laws to bans on entire classes of commonly-owned firearms and standard-capacity magazines.
The majority 6-3 opinion specifically singled out the court’s “two-step” process that has been applied to Second Amendment cases. That was a legal theory proposed by Justice Stephen Breyer in his dissent in District of Columbia v. Heller, but which the majority expressly rejected.
‘One Step Too Many’
“Despite the popularity of this two-step approach, it is one step too many,” wrote Justice Clarence Thomas in his opinion which was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
“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 means end 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.”
Justice Thomas described the inappropriate two-part test adopted by lower courts to evaluate whether a gun control law passed Constitutional muster. First, the government always justified a law claiming the law in question fell outside of the Second Amendment protections. If the government proved the activity wasn’t protected, the examination stopped. If the law in question was within the Second Amendment’s scope – often courts would just “assume” it was protected – the courts then examined how closely the law came to cutting into the core of the Second Amendment to determine the level of scrutiny to apply, almost always determining the lesser intermediate scrutiny applied making it easier for the courts to uphold the infringement based on government interests.
Heightened scrutiny was almost never applied. Justice Thomas noted that neither the Heller nor the McDonald decision relied on – or authorized – this two-step tier scrutiny means-end (interest balancing) test for evaluating whether a law or regulation infringed on the Second Amendment rights of individuals.
The Second Amendment is the Test
“We declined to engage in means-end scrutiny because ‘[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon,’” Justice Thomas wrote. “We then concluded: ‘A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.”
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” he added.
Justice Thomas went to lengths to explain why means-end tests don’t pass Constitutional muster. In the end, the government will always find reason for the government to prevail. That strikes at the heart of enumerated rights – those rights which are endowed by an individual’s Creator and expressly belong to the individual, not the government.
“If 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,” Justice Thomas explained. “The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”
Justice Alito, in a concurring opinion, reinforced Justice Thomas’s rejection of the “tiered scrutiny” approach to Second Amendment-related cases.
“Under that approach, a court, in most cases, assesses a law’s burden on the Second Amendment right and the strength of the State’s interest in imposing the challenged restriction,” Justice Alito wrote. “This mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.”
Lower Court Impacts
“Like that dissent in Heller, the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit,” Justice Alito added.
“That argument was rejected in Heller, and while the dissent protests that it is not rearguing Heller, it proceeds to do just that. Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun.”
That’s significant since there are cases pending before the Supreme Court that hinge on lower courts applying balancing tests rejected by the Court. In Duncan v. Bonta, a challenge to California’s ban on standard capacity magazines, the U.S. Court of Appeals for the Ninth Circuit used this very test, even after a three-judge panel from the same court found that California’s law “simply cannot pass constitutional muster, whether analyzed under strict or immediate scrutiny.”
The full court, however, ignored that. The decision reads, in part, “The court applied a two-step framework to review the Second Amendment challenge…” and “…determined that intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms.”
That case is being petitioned to the U.S. Supreme Court.
There’s also Miller v. Bonta, a challenge to California’s ban on Modern Sporting Rifles (MSRs). The Ninth Circuit also heard that case but granted California’s Democratic Attorney General Rob Bonta an indefinite motion to stay a decision made by U.S. District Court Judge Roger Benitez, who found the ban unconstitutional. AG Bonta argued for the ban under an interest-weighing test. There’s a similar challenge, Rupp. v. Bonta, that was also stayed at the Ninth Circuit.
All will now be subject to the Supreme Court’s explicit rejection of interest-weighing tests.
There is now enough popcorn in the world to watch the show that’s about to begin.
Personally, I’d much rather be an “actor” than a spectator. Seriously, everyone should join in. Let the Left have the popcorn,
Interest-balancing always seems to tilt toward the lowest common denominator.
Like, in the interest of not upsetting the retards we’re going to drug your smart kid.
The “balancing” part is we could have just executed your kid so you should thank us for indulging this compromise.
Pay attention to West Virginia vs EPA too. SCOTUS may very well strike down the federal alphabet soup agencies vast regulatory powers. If so that would be huge not only for gun rights but also the entire republic. Personally I believe that would be bigger then the recent abortion and gun control rulings, as federal agencies making up new law is the most tyrannical aspect of the current government I can think of.
This. I am surprised how little I have heard about this case due to the overwhelming consequences that hangs in the balance.
I agree! Tyranny often happens in mundane, snore-inducing ways, which I suppose is why this case hasn’t gotten much attention. I guess the left doesn’t find EPA regulations all that exciting a reason to riot, set fires, and expose their insanity online.
Anyway, it sounds like a pretty important case to me, but the media only started mentioning it within the last day or two. Before that, crickets, leaving me woefully ignorant. I have heard a lot about Johnny Derp and company though, so fortunately I remain a well-read man of intellect and culture (snort).
Oh their going to get the coal plants making electricity again.
No way are they going to build 300 Nuke generators to supply the lectric for all the Ecars we are being forced to buy.
theBiden jumped off the bridge before seeing how deep the water was.
I would love to have that many nuke plants both for reliability of generation and the jobs for vets (DOE related security is actually pretty wild) But in the end coal and gas are about all we can rely on being available anytime soon.
The lack of interest in nuclear power is how I know the left is lying when they start spouting their eco-panic nonsense. When properly regulated, nuclear power is a safe, reliable, and excellent energy source that addresses the majority of climate change concerns.
If a man is dying of thirst but throws the water you’ve offered him back into your face… and then he goes ahead and bans water for good measure… is he really dying of thirst?
The Attorney General of West Virginia Patrick Morrissey, although not as well known as those of some bigger red states, is without a doubt one of the best in the nation and is just as Second Amendment friendly as he is Coal friendly. He comes from that part of West Virginia that is part of the DC Metropolitan area and knows his way around Washington. It is my opinion that he lost our last election to the Senate by a narrow margin to Joe Manchin, not because of Joe’s popularity, but because he is such a good Attorney General. What I am getting at is you can not only count on this guy to get it right, but he will optimize the win! None of this surprises me.
“Pay attention to West Virginia vs EPA too. SCOTUS may very well strike down the federal alphabet soup agencies vast regulatory powers.”
Does anyone know what that would mean to ATF ‘rulings’ like arm braces?
Would all of the BATF’s special rulings be wiped out in one stroke?
“Would all of the BATF’s special rulings be wiped out in one stroke?”
We may, or may not, learn what rules the ruling will erase, or not erase.
Dissecting agency powers is trickier than dealing with 2A matters. The basic question must surely revolve around the distinction between “enabling regulations”, and unauthorized absorption/extension of agency power. It is to the advantage of elected and appointed officials that legislation be as vague as can be acceptable to the greatest number of elected and appointed officials, letting the heat be faded by agencies defending the agency policies and rulings. “Chevron” is a huge tool for agencies to justify decisions/usurpations.
Probably not all, but certainly those being challenged. The Founders and Framers did not intend for Unelected Bureaucrats to write the Laws. That job lies solely with the Legislature. Congress’ handing over of their power to faceless, unelected Flunkies is Unconstitutional, because a Bureaucrat is then making the Law. Bureaucratic offices can ask for and petition Congress for Laws, but that’s supposed to be the limit. Even if McSniffy signed an EO granting that power to the bureaus it’s still not in his power to do so (Obutthead and McSniffy have ignored that again and again)..
Taking the alphabet agencies to task is long, long overdue – though the crushing proliferation of regulations and policy decisions are yet another example of the Legislature’s purposeful abdication of their role in our Republic. Why pass a law that’s clearly contrary to your constituent’s best interests and then be held accountable (by ending up unemployed next election) when you can get some faceless, untouchable bureaucrats to do your dirty work for you? That the public employee unions dump millions of dollars into (mostly) Democrat campaign funds is just a tasty bit of gravy for our porky Congresscritters.
Interest balancing is not in jeopardy, it is dead. The Ninth Circuit is just going to have to live with it, and finally impose a real burden of proof on the government to justify its regulation. There are two many cases where no actual evidence supporting the regulation is adduced, but instead that “interest in public safety” is given a veto over the competing interest of the individual.
The cases listed will no doubt address the question, but there is one more on the horizon: AG Bonta has sent a letter to all the issuing agencies stating that although “good cause” is dead, California law still provides for a) “good moral character” and b) a mental health inquiry that may include the review of psychiatric records and/or a mental health examination. Quite frankly, I think that GMC is dead too. As the Supreme Court held, “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.” I am aware of no history or tradition of mental health examinations or tests for “good moral character” ever being applied prior tho the 20th century for the possession of firearms.
“As the Supreme Court held, “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.””
Would the same logic apply to gun registration?
For that matter, home gun-building was done from the earliest days of this country, and I doubt that anyone put serial numbers on them, so 80 percent kits should be expressly protected… 🙂
“Would the same logic apply to gun registration?”
The impact of “Bruen” can only be determined one law suit at a time. FUD is a thing, and given the reluctance of the SC to deal with the Second Amendment, it is likely that the SC will avoid future 2A cases for at least a decade (precedent, doancha know?).
First of all, GMC is about as subjective as it gets so in the bizarre parameters of social reality these days, one could be as foul in moral character as you can get, merely for judging how bad or good someone else’s moral character is.
And secondly, It still amazes me how many stupid persons knee-jerk to the notion that mentally ill people should Not have the right to protect themselves.
For all the unwashed brainwashed out there, Mental Illness is NOT a fucking CRIME! It is a sickness just like any other illness. Most people with such illnesses function adequately in society with treatments.
And the criminal ‘adjudication’ of such behavior almost always rises to a necessity term of incarceration in an institution with medical supervision and treatments for very dangerous mentally ill individuals. This is usually referred to as the ‘criminally insane’. Just like the extremely dangerous criminal killers and bad violent actors.
But this falls into that mind-fuck trap that so many holier-than-thou self-righteous pillars of society always parroted: They take it upon themselves from their higher positions of moral platiude to divinely decree that “There are some people who simply should Not have a firearm!”.
So the racist Marxist LBJ cartel seized upon the ignorant perverted mentality of all those ‘good decent folk’ who are shocked at all the criminal violence and anti-war demonstrations and anti-G rhetoric running rampant among college students and minorities in the late 60’s who were starting to get politically organized to create a serious challenge to LBJ’s re-election chances with their strong anti-government dissent so Johnson & Co devised a little scheme to help turn that around.
He knew that most of these people were dope heads so they began a plan in 1968 to disarm this rapidly growing anti-G element in society before they could become a problem by stepping up drug penalty and felony level enforcement efforts. Later to be officially confirmed in 1971 as the national War on Drugs effort.
But the ’68 Gun Control Act was the kick in the balls of the 2nd/A that ‘we, the stupe-fuck people brought upon ourselves.
I mean how the fuck could anybody fall for this unless they themselves were brain warped from having too many late-night conversations with ‘Jack’ because they had nobody else to talk to?
Besides all the other unconstitutional illegal mandates of the 68 GCA, they come up with a life time gun prohibition punishment for anybody convicted of a felony. Never mind that throughout history and criminal justice and punishment, When you did your time, you were back in line. You don’t continue to get punished for Life for one bad mistake? Especially if you continued on in life as a law-abiding value producing citizen? How is that justified by any standard of fairness and justice and the concept of forgivenss and second chances…especially to you religionists?
Yes, if a person is that viciously dangerous then they have to be taken out of general society for public safety. But if they are safe enough to walk around in public, then why should their rights remain suspended? OBTW, they also then prohibited voting for ex-felons after the 68 GCA. Can anyone guess why?
The tip off in .1968 to this Marxist Gun Control scam by Johnso should have been to all you ‘good upstanding pillars of society that the permanent firearm prohibition for felons just didn’t make sense?
You could machete chop a half dozen people at Micky-D’s do 5-10, come out with a lifetime ban on gun ownership, but go out and buy as many swords as you want!
You could hit and run and kill a child and do 20 years for negligent vehicular homicide and never be able to buy a gun but you could go right out and buy and own a car!
You can poison and kill half your family with anti-freeze laced with rat poison passing off as a nice sweet lime green iced cool aid… and when you get out there’s nothing prohibiting you from selling the deadly stuff, that is if you can get a job with a felony on your record. The ,68 GCA destroyed so many young lives that someday it will go down in history as one of the greatest socially deletarious Commie frauds ever pulled on a severely cognitively obstructed populus. A corrupted justice system atrocity that creaed an entire subculture of 2nd class citizens, Intentionally!
You see the G benefited from a little side windfall from this 68 GCA disarmament move. It may have been planned also, knowing how intrepid these Marxists have been at disarming us, I don’t know because I was one of those ‘underage’ 19 year olds almost getting my ass blown off on a daily baisis in the wretched stinking snake and spider infested jungles of the Central Highlands of VN with an M-16 and a canteen full of beer when we didn’t have clean water. Nobody told us we couldn’t?
Since any felony qualifies to disarm you, How mother fucking easy does it then become for these above the law racist nazis to simply make the appropriate laws with felony charges that target focus on particular political enemies to disarm them to prevent any possibility of the proverbial ‘armed resistance’ to a Tyrannical Government’?
Very Easy. You are seeing it right now in living technicolor. Hundreds of thousands of law-abiding persons buying gun related parts, but NOT Firearms, now becoming criminal felons by illegal fiat laws! And there’s much more on the horizon.
Yeah, everybody’s in a good mood because of this decision But don’t abuse your own asses too vigorously when you finger massage your prostates over your euphoria.
A few years ago when Obama was chief Marxist i knew a doctor who worked at one of these drug testing and physical exam for CDL clinics and he told me that he heard talk that they might be gearing up to do testing for mental health evaluations. It would relatively be easy to simply add a few facility clinical psychologists He didn’t know exactly for the purpose. And we never found out as it obviously wasn’t implemented. But I figured it out later on.
A clinical psychologist or psychiatrist can determine in less than 20 minutes if you have some kind of psychological issues, potential organic or disease-induced physical mental problems, high stress, substance abuse, anger management, depression, PTSD, phobias, anti-social tendencies, chronic anxiety etc., to determine if you are a danger to yourself or anyone else. A qualified medical professional can notify the police after a determination and inform them of their assessment. The usually perform a friendly ‘welfare check’ and take your guns. The police having already been routinely doing a below radar version of Red Flag seizures for years in this capacity.
They will never stop. Because they cannot complete their totalitarian agenda without first completely disarming the American people.
The only way to stop them is to beat them back to being powerless in Congress and the Senate this fall in the midterms and flipping back as many State governors as well.
The Mayo Clinic says that 7 out of every 10 people are on some kind of prescription drug. Most have side effects that can affect behavior.
So New York doesn’t give a fuck about ‘Bruen’. They are already setting up to get around it with the idea that, “Okay, we’ll issue no cause to EVERYBODY who wants a carry permit…as long as they’re exhibiting/displaying abnormal mental issues and not on any medications that might affect their mental state. You know, with all the nuts running around we gotta be a little bit cautious. Right? It’s just a quick interview. Nobody can’t agree with that?
Because You all know that “There are some people who simply should not have a firearm.”
Wow, as in just, WOW!
You have a few serious issues to deal with. Are you on probation? Or is it something about that last IED in Iraq? I bet the feds are looking closely at you (without opening the blinds, check outside and see if there is a generic repair van with smoked glass windows parked across the street). Have you discussed these issues with your therapist?
The above is just kidding! I do believe you hit nearly every hot button the pet media has written off as conspiracy theory. You also hit, point for point, almost every problem I have with the feds and their phobia about civilian gun ownership. Almost, because you didn’t start with the patently unconstitutional 1934 NFA.
While NY is looking to make carry more restrictive I find a lot of humor in the potential disaster that is looming for our attempts to limit a civil right. Soon soon.
I worry for you all in NY (including my own family). I think it’s going to get worse before it gets better. Many lawsuits on the horizon…
We get to see if our Tyrants are petty or full on and it will quickly become undeniable that they are tyrants. Mission for near term is survive outside of prison despite whatever stupid laws get passed then press lawsuits and elections until we resemble a merely left of center state (gotta start somewhere)
I wonder how the ruling will effect the up coming pistol brace rule. It seems like that rule would be an opportunity to challenge the legality of regulating SBR’s under NFA. And if SBR’s can be challenge than everything else can challenge under the NFA. The enter NFA could potentially fall apart. Something I am sure Biden and the ATF do not want. So I wonder if the ATF will pull the new rule or roll the dice and see what happens in the courts. Going to an interesting second half of the year!
three decisions ago, chevron was ignored.
look to w. va.
Wait until they realize that the decision applies to the entire BoR, and not just to 2A…
it’s almost as if i can say what i want.
I love my President Joseph Robinett Biden.
I hate Trump
Gunms are bad
Protest are peaceful
Hang the Jan 6 inserectionist
,,,,, uh yeah freedom of speech as long as you say what you should.
…and this is exactly why I simply disassembled and stored any “gray area” items in the back of the safe…waiting for this day. I have gunns that were “legal” until they suddenly weren’t. I also have a couple of items that are “legal” according to some, but not according to others and their interpretation of CA law.
Madness. Madness, I say!!
Yessir. I have some stashes as well.
Reminds me I probably should start up a wish list at Aero/Midway/wherever else for the near/mid term planning.
“’simply cannot pass constitutional muster, whether analyzed under strict or immediate scrutiny.’”
typo, he meant intermediate.
I was hoping that the ruling would just flatly declare that all laws infringing were ipso facto void. After reading the rulings and concurrences, I have hope that it might just be the case. We shall see. I would specifically like to see the Gun control acts of 1934 and 68 declared null and void.
Gunm control acts of 1934 and 68 declared null and void.
I’ll bet my ammo stash against your two dollar bill that’ll never happen.
Be a few really pissed off collectors …….but the stamped steel style smg and intermediate select fires would very quickly drop in price and quickly develop into very neat variations. Could probably scale back on ear pro after a while as well. Nice to dream but roadkill in training is probably right.
Sit for a moment and think this through. Read carefully what Justice Clarence Thomas wrote, with the support and concurrence of four other Associate Justices and the Chief Justice. Now apply Thomas’ words and intent to the NFA, not just bits and pieces, the whole law. Don’t jump in too fast, think!
I think Clarence Thomas’s later musing about what else might be coming, was less general talk and more specific warning of things to come.
You are so right Georgia Bob. I read all 135 pages of the ruling, even the boohoos on the dissenting side, twice. Justice Thomas has some great words that we will have to use to fight the tyranny from the left.
I’m in CA and see so many laws that do not pass muster when it comes to the 2nd A. The very first law that needs to be stricken is Section 25850 Ca PC, after that, everything else falls like dominos.
Clarence Thomas did not write the majority opinion. There is no evidence the five justices in the majority opinion concurred with his concurring opinion.
Understanding that writers and columnists don’t usually write their own headlines, “Bruen Puts Lower Courts’ Interest-Balancing Rationales for Upholding Gun Control Laws in Real Jeopardy”.
Real jeopardy. REALLY? That’s your take???
No, Larry, Justice Thomas EXPLICITLY stated that such tests are not constitutional. Now, whether and to what extent lower courts and the Deep State will actually adhere to this is a legitimate question, but . . . “in jeopardy”???? No, it’s a little more definitive than that.
That second clause “the right of the people to keep and bear arms shall not be infringed” is about as clear as the founders could get, and going forth with a little luck the second amendment will become the first class right it deserves to be. If it does liberal heads will explode.
The first commenter is right there probably isn’t enough popcorn.
more like “toe tag time”?
And theBiden is pacing the floor making phone calls. “This just cant be, we’ve got to do something about the SCOTUS and that damned Constitution.”
What does it take before America demands he be impeached?
“Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test…”
Then, how did “Bruen” end up before the SC? Why did the lower courts insist that, after “Heller”, the “two-step” analysis of Second Amendment cases was/is, indeed, appropriate, and in compliance with “Heller”?
And why does the majority in “Bruen” believe the behavior of lower courts is now effectively constrained in the review of 2A cases?
At this point the magazine ban will need to be pushed either by CA, or perhaps another circuit. The MSR ban, and special handgun list will also now fall under that scrutiny. My hope is these can now move forward with proper endings.
Larry Keane: “That strikes at the heart of enumerated rights – those rights which are endowed by an individual’s Creator and expressly belong to the individual, not the government.”
I’m afraid you have made an error by conflating very important but distinct things. ENUMERATED rights are those explicitly recognized in the Constitution. Those rights endowed by the Creator are UNALIENABLE rights.
“which demands a test rooted in the Second Amendment’s text, as informed by history.”
NFA and CGA of 68 certainly violate this standard. Overturn in 23.
In a big fat, “told you so”, it was I who stated (have stated for the longest) that the SC would rule not on infringement, but process for infringement.
The SC is ever-mindful of preserving its power and prerogatives. By ruling on “process”, the SC reinforces the judicial fiction that the Constitution is generally constrained by “common sense” limits, and that the central government has authority to discard the constitution for “compelling government interests”. That concept unequivocally declares that the populace serves the government, and that government is the final arbiter in establishing the freedoms and liberties to be granted (by government) the populace.
And tomorrow NYS legislators will vote on things like a 20 hour training class with live fire, increased background checks for getting a permit , limiting where guns can be carried and oh , every business that would allow CC must post a sign saying so , to name a few .
It doesn’t put a “hold’ on the lower courts’ two stage methodology. It eviscerates it! Read the decision.
“It doesn’t put a “hold’ on the lower courts’ two stage methodology. It eviscerates it!…”
Academically, that might sound correct. Time alone will tell the tale. Lower courts remain free to ignore/defy “Bruen”, with impunity.
Heller and McDonald were sufficient in themselves to direct the lower courts to remove infringements on the Second Amendment. “Bruen”, a decade later, is simply a stern note to the lower courts, “This time we really mean it.” Yet, the SC is powerless to enforce its opinion (an opinion that leaves certain infringements in place, and with SC stamp of approval). And defiance of the lower courts remains a viable option, starting the process all over again; rinse and repeat.
Decided early this morning that I need to make some memorable, clever and unforgettable comment on “Bruen”.
Without being supported, or sustained by any amount of morning coffee: “Bruen is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
(Sometimes the height of my intellect, and the strength of my literary power, scares even me.)