Supreme Court Guns
(AP Photo/J. Scott Applewhite, File)
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As expected, this morning the Supreme Court disposed of a number of cases challenging gun control laws that it had been holding pending the ruling in New York Rifle & Pistol Association v. Bruen. The language in the Bruen ruling now provides clear guidance to lower courts as to how to evaluate Second Amendment-related cases.

The key aspect of Bruen that changes the legal landscape for evaluating the legitimacy of many gun control laws is the ruling’s explicit rejection of the two-step rationalization that lower courts have been using to evaluate Second Amendment cases for the last 14 years in order to sidestep the Heller decision.

The Supreme Court had for years declined to hear cases challenging laws such as “assault weapons” bans, magazine capacity limits and more, frustrating Justices who thought a clarification was well past due. Now we have that clarification.

As Josh Blackman at The Volokh Conspiracy wrote . . .

Now, New York State Rifle & Pistol v. Bruen has bid farewell to the two-step test. And it did so very, very briskly:

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. . . .  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 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.

I haven’t checked Westlaw, but this paragraph probably placed red flags on dozens of circuit court cases. And almost all Second Amendment scholarship that was premised on the two-factor test has now been vitiated.

Oh no. That’s a real shame.

Along those lines, the Supreme Court today GVR’d (granted cert, vacated the lower court rulings and remanded for reconsideration) the following cases in which the lower courts had upheld the gun control laws in question.

Young v. Hawaii — Challenges Hawaii’s ban on open carry as infringing citizens’ Second Amendment right to bear firearms outside the home.

Bianchi v. Frosh — Challenges Maryland’s “assault weapons” ban under Heller’s common use language.

ANJRPC v. Grewal — Challenges New Jersey’s “high capacity” magazine ban for violating the Second Amendment, the takings clause of the Fifth Amendment, and the equal protection clause of the Fourteenth Amendment.

Duncan v. Bonta — Challenges California’s “high capacity” magazine ban as violating the Second and Fifth Amendments as well as the two-step interest-balancing process explicitly repudiated in the Bruen ruling.

The Court’s disposition of these cases today represents the first significant crack in the foundation that lower courts have built in the last 14 years to prop up gun control laws while violating the Heller decision and the Second Amendment.

Today’s moves also show why the gun control industry’s reaction to Bruen was as panicked as it was. Their attorneys recognized what Bruen potentially means and knew that they now have an entirely different fight on their hands.

 

Clarence Thomas
(AP Photo/J. Scott Applewhite, File)

 

 

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58 COMMENTS

  1. That’s okay. They have plenty of our own money to fight us with and cities and states tend to live a lot longer than us mere mortals.

      • missed yer morning coffee? Eyes not quite yet open all the way?

        Must be.. you missed nis sixty point Sarc font.

      • Or perhaps he’s just . . . a realist??

        Bruen was a good (not perfect, by any means, but good) ruling. If you think the 9th Circus won’t play games trying to avoid it, you may not have been paying attention.

    • The tree of liberty must be refreshed from time to time with the blood of patriots’ bank accounts.

      Sure beats the alternative, though…

    • Yup. Tis shows him as a happy man with a heart. Not the dour old creep so many try and portray him to be, which he is not.

    • “Ending the article with that picture of Justice Thomas was perfect.”

      Yeah, but… 🙁

      I fear for Thomas, every one else who joined his opinion, and their extended families.

      Because that’s how the Leftist Scum ™ rolls. They will hurt who you love most to hurt you… 🙁

  2. The corrupt courts do have an entirely different fight on their hands but the only sure victory here is the death of may issue. None of these courts are going to say magazine or “assault weapons” bans are unconstitutional. They’ll use Thomas’ own words: “analagous, dangerous and unusual etc”. The reason is that the courts are committed to reshaping the world they want it to be. Quite simple. When our side is equally committed things will change very, very quickly. We’re just not there yet. Too comfortable and ethical.

    • but standard capacity magazines, semi-automatiic non-military pattern rifles, are precisely the sorts of things INCLUDED in “arms” back when that Second Article of Ammendment was drafted and ratified. How many reading here are aware of a semi-automatic repeating rifle (one trigger pull one shot, next round ready to go now) with a standard magazine capacity of forty rounds, was in existance and owned by private citizens at the time we were busily kicking out the Brotish former overlords? It was quite dear, whcih explains why few were owned. It also took a LONG time to make, hence its being so dear. But they existed, people had them and people used them.. in the 1770;s. Same time pariod as Lexington and Concord and the Bill of Rights.

      • These courts are committed to reshaping the world the way they want it to be. I understand you were taught about truth and justice in school. Their definition of justice is how they want things to be. You will see. When the dust settles those bans will still be here.

        • “When the dust settles those bans will still be here.”

          Then make the price they will have to pay for those unconstitutional bans so onerous they will think 3 times before doing it again.

          Alinsky 101, rule number 10 : “The major premise for tactics is the development of operations that will maintain a constant pressure upon the opposition.”

          Legally, of course… 🙂

  3. Also, the court said open carry can be banned, which is unconstitutional. But Hawaii will have to allow a very hard to get concealed weapon permit.

    • I don’t think they did say open carry could be banned. Feel free to quote it.

        • Stateisevil, I don’t see it in the decision. There’s discussion of banning open or concealed carry in the historical review. Page 44-45 states “Respondents’ cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry”.

          Footnote 16 on page 45 states “During this period, Georgia enacted a law that appeared to prohibit both concealed and open carry, see 1837 Ga. Acts §§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibition could not extend to open carry consistent with the Second Amendment.”

          And again on page 60, “When States generally prohibited both open and concealed carry of handguns in the late-19th century, state courts usually upheld the restrictions when they exempted army revolvers, or read the laws to exempt at least that category of weapons.”

  4. Yeah, baby! Let’s have the Nutty Ninth re-examine Duncan v. Becerra Bonta and uphold Judge Benitez’ original ruling that magazine bans are unconstitutional!

    This is why you never get rid of your gear, and never register your items. Even if one day the political winds change in our favor, the State still knows what you have if you let them.

    • even if the illegal bans remain in place, the HAVING them may yet come in handy one day. There is talk of brigning in those UN rapists to “keep order”. But those bright blue domes are SURE pretty, and VERY easy to spot at long distances.

  5. Bruen is Clarence Thomas’ gift to Liberty. And it’s going to be a gift that keeps on giving. 🙂

      • Heller and McDonald both have been a gift to liberty that has kept on giving. In consideration of Heller and McDonald some states went constitutional carry, they saw the handwriting on the wall as to the intent of Heller and McDonald. Now with Bruen even more so that intent of liberty in terms of the second amendment has been more clearly defined.

        • Heller had nothing to do with constitutional carry. Bruen reinforced that at every turn. Licensing is acceptable completely and the 2A is still a second class right. Read the opinion.

        • @Stateisevil I did read the opinion, and with respect, I think you’re being far too pessimistic. It establishes a clear, historically-based test for 2A cases, with not a lot of wiggle room for gun control laws that don’t adhere to historical precedent from the time of the founding. The fact that several states immediately changed their permitting regimes, that NY is about to get sued (again) over ghost guns and who knows what else, and that these cases (all of which deal with very common restrictions like magazine capacity bans, etc.) are being sent to circuit courts with clear instructions to reassess based on Bruen is clear evidence that this ruling is having a major impact. Changes won’t happen instantly, and yeah, there’s a chance that things will peter out. But there are a lot of people on our side who are willing to take states to court repeatedly in order to undo every last gun control law in the land. Bruen is some extremely potent and helpful ammo in that fight. Why the long face?

        • State is confused. Yes the progs will attempt to circumvent the ruling. The higher courts will have no real alternative to “fixing” the errors and confusion of lower courts on the issue.

          A few judicial impeachments in 2023 would cure many ills. Has been WAY too long.

      • Not the cases theirselves in words, but the intent towards carry outside the home did and was cited in intent by some states as a reason they went constitutional carry.

  6. It would have been nice if SCOTUS would have also removed any stays on these cases until they are decided and SCOTUS either denies Cert or hears them in the future and decides. Otherwise it will take 5-7 years to get back to them.

    Rights delayed are rights denied.

  7. So SCOTUS is sending those cases back to the same lowlife judges who screwed us in the first place and expect a different result?

    Hey, SCOTUS, pass the bong. We all want some of what you’re smoking.

    • IANAL, but isn’t “granted cert, vacated, and remanded” equivalent to ruling against the lower court? Or am I missing something?

      • it is in a way ruling against the lower court with “Hey, you need to take these back and do it the right way.”

        • It does not mean that. They will reconsider the cases in light of Bruen. I predict some very creative writing to uphold the bans. The scotus could have reversed and chose not to.

        • But other than that of sending it back to be redone, no its not a legal ruling against the court.

        • Does “reversed” not have meaning here? Again, IANAL, but doesn’t “reversed” mean, “we undo the decision the lower court previously made”? Yes, it is also remanded, but it seems some of this pessimism robs “reversed” of any teeth or relevance.

        • There is a reason they say “vacated” and not “reversed,” Chip. All GVR does is to wipe the slate clean and for the former decision to be reconsidered. It is not a conclusion that the lower court got it wrong, but rather they must apply the new substantive law or procedural rules announce by SCOTUS.

      • “IANAL, but isn’t “granted cert, vacated, and remanded” equivalent to ruling against the lower court?”

        And, doesn’t “granted cert.” mean that whatever the end ruling is, it applies nation-wide, and the territories like Guam?

  8. Dan,

    You missed the big one, that on the surface did not mention guns, West Virginia vs Environmental Protection Agency. It has the potential to curb or, with luck, throw out the work of all of these little nameless, faceless “rule makers” as in those at ATF, who are redefining everything to suit their needs and wants or writing rules banning Bump stocks, certain triggers, etc. The administrative state desperately need to be be put in their places and this just might do the job.

    • Really, overall, is more meaningful nationally. REJECTS the man made “climate” change BS and the empire of the swamp state. Let Freedom Ring.

    • “Dan – You missed the big one, that on the surface did not mention guns, West Virginia vs Environmental Protection Agency.”

      LKB commented on that earlier, unfortunately, “It’s not the droid we’ve been looking for”.

      As he explained, that ruling applied to big-ticket, big-money over-reach this time.

      But he closed with – “The writing is on the wall.”

      A few years back, LKB wrote of the need to build as solid of a legal foundation as possible to insulate it from a potential summary SCotUS reversal the next time they control the court…

  9. It doesn’t matter when the supreme court will completely be ignored and every single decision will remain the same.

    These courts would if it came down to would rule the complete had total ban of all private gun ownership with door to door confiscation and the mandated extermination of every single gun owner in the state along with the mandated execution without trial of every single solitary person in a home with a gun that oppose there family being murdered with the mandated execution without trial of anyone and everyone that opposes it in any way shape or form as constitutional. Most of the judges on these courts want quite literally nothing less than the complete and total ban of all private gun ownership with door to door confiscation and the mandated extermination of every single gun owner Indian tire United States as well as the execution of the entire population of the United States that would be against that.

    Nothing is going to change because these same judges hate us and want nothing less than every single one of us dead. I wouldn’t be surprised if most of them would fully support the full deployment of the nuclear Arsenal to kill every single gun owner in the country viewing the tens if not hundreds of millions of other lives that are taken as simply necessary collateral damage to bring about gun free utopia.

    I say these things because the left does not give me a reason not to.

    • I concur 100%. The LEFT wants total control over their subjects. Living or dead. Hopefully, they stop pushing their agenda, before it goes too far. Sadly, I believe they will not and it will be a sad day in America. I don’t want to see it and pray it never happens, but blood may have to be spilled.

  10. I’m very happy that we got what we got out of the court. Incrementalism works both ways. Now it’s time to start clawing back the rights we had up till about 1933.

    Will the “Evil 6” states fight us all, every step of the way? Yes.
    Will our own party betray us every chance they get? Yes.

    We fight on anyway.

    • Progs stated in the late 1800s as eurowussie marxism spread like a plague to the US. Teddy and Wilson were 2 of the biggest/worst of the lot.

  11. Duncan v. Bonta — if I were a SCOTUS justice and heard that case… I just know that somewhere in the back of my mind I’d be tempted to write a one line opinion that read…

    “Mr. Bonta, California’s high capacity magazine ban is unconstitutional you twit. ”

    Yeah, I know it’s not that simple.

  12. “And almost all Second Amendment scholarship that was premised on the two-factor test has now been vitiated.”

    A correction is in order. No constitutional scholar ever used the two-factor test. There are no two steps in the constitution. History gives no basis on which to establish any two-step method to determine constitutionality. There is no precedent. It is far more proper to assert that anyone using the two-factor test was intent on undermining the constitution.

    • “is far more proper to assert that anyone using the two-factor test was intent on undermining the constitution.”

      9th circuit.

  13. I look at these 4 “vacated” decisions as something a kind math teacher would do for a student on their homework.

    “Here is the correct formula to use, you used the wrong formula. Now redo your work and then hand it in for me to look at.”

    Maybe the student still screws it up, either through ignorance or malice. But they’re gonna gave to give their answers up and when they do, it’ll be subject to review. Review by a body that JUST said “Redo your work, you used the wrong formula”.

    I’m not much of a gambling man, but I’ll bet a Glock against a 1910 Bergmann (I really want one of those) that if the lower courts don’t come to a different conclusion on these four cases, that the SC WILL.

  14. Those lower courts will just find a different way to go around the Bruen decision as they did with Heller.

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