Blog - SCOTUS Reinvents the 2A for the Modern Age by Looking at History

The SCOTUS decision in NYSRPA v. Bruen is going to send shockwaves through Congress and the state legislatures around the country. Most gun policy wonks had expected the Court to clarify the balancing test Courts of Appeal could use when determining whether gun law restrictions were constitutional or not. Instead, the Court announced an entirely separate analysis that must be used for 2A cases. Specifically, the Court found: When the Second Amendment’s plain text covers an individual’s conduct, the  Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” The Court then struck down New York’s “may-issue” licensing scheme for issuing concealed carry permits, finding the law ” prevents law-abiding citizens with ordinary self-defense needs from exercising their right
to keep and bear arms.” The implications of this decision are wide-reaching. First, it’s safe to say that blanket may-issue laws are now unconstitutional. However, the Court was also clear that laws such as prohibiting firearms in schools and bars are likely to survive as these have historical precedent.  In other words, you may be able to get a permit to carry, but the government will still be able to put some restrictions on where, based on reasonable historical interpretations of such restrictions. But what about other laws?  The list of what could be erased is, frankly, mind-boggling. First, laws such as state-specific restrictions on having NFA items are a likely candidate for being struck down, although the NFA seems likely to survive. Likewise, California’s inane handgun roster will likely go by the wayside.  The Court also specifically called out numerous types of laws that are not likely to survive.  These include waiting periods for firearms purchases and exorbitant licensing fees. On the flip side, we expect numerous types of laws to survive. Do not expect to see Red Flag laws disappear, and we would expect the Lautenberg Amendment and similar to be kept in place.  Background checks such as NICS will be allowed to continue, and rules regarding FFL licensing as well, as could education requirements, as the court found these go to determining whether one is a law-abiding and responsible citizen.  In short, the new bill coming out of the Senate likely would survive under this new framework, while the bills passed by the House would not. There are some areas that also remain unclear.  Magazine bans for example are murkier as the arguments have to depend on historical precedent around firearms and magazines, in the context of many of these laws, are fairly modern.  Likewise, we would expect there to be a hard-fought battle over AWBs as there are arguments on both sides regarding the history and use of such firearms and whether such bans impact the right of self-defense at all.  This is especially true as in dicta (essentially language in the case that explains the holding but is not part of it), the Court suggested that this case applies to laws regarding citizens’ rights to carry handguns for self-defense, possibly opening the door to different interpretations for rifles.  Regardless, the justifications used for upholding these restrictions by previous Courts of Appeal decisions are now improper and all such restrictions will have to be reexamined through the new framework set forth today. The decision is 134 pages long and we have not fully digested it yet, so expect to see more on this in the coming days. However, the seismic change this decision will have in the 2A world cannot be understated.  

Source: ... t-history/

Re: Blog - SCOTUS Reinvents the 2A for the Modern Age by Looking at History

Holy moly...
AWB may survive but this federal decision definitely opens the floodgates to handguns in all states. Lawmakers and DA’s in NY and CA will be plenty pissed. I admit I’m frankly flabbergasted to read this development and feel somewhat conflicted.
"It is better to be violent, if there is violence in our hearts, than to put on the cloak of non-violence to cover impotence. There is hope for a violent man to become non-violent. There is no such hope for the impotent." -Gandhi

Re: Blog - SCOTUS Reinvents the 2A for the Modern Age by Looking at History

Newsom is already out condemning the decision. ... n-00041740

NY governor to call a special session of the legislature over the SCOTUS decision. ... n-00041715

Not surprising, Democratic governors and Democratic big city mayors will be out wringing theirs and yelling that the sky is falling.

CA's AGs have used "compelling interest" in arguing for all the state firearms restrictions, that will be challenged in court.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: Blog - SCOTUS Reinvents the 2A for the Modern Age by Looking at History

featureless wrote: Thu Jun 23, 2022 3:43 pm
highdesert wrote: Thu Jun 23, 2022 3:34 pm
CA's AGs have used "compelling interest" in arguing for all the state firearms restrictions, that will be challenged in court.
Yup. And the circuit courts created two-step ate it up. The problem states face now is that they don't have any real evidence that these regulations work. Which suddenly makes them very hard to defend.
Exactly, the circuit courts have been complicit in the fiction of the "state's compelling interest". The "two step" was a way of upholding at least in CA, state firearms laws instead of federal judges overturning them with the exception of Benitez. Thomas wrote what many of us have stated here on the forum, the 2A is not a lesser constitutional amendment and he went further in stating that exercising a constitutional right shouldn't be up to the discretion of some government official.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: Blog - SCOTUS Reinvents the 2A for the Modern Age by Looking at History

The concurring opinions by Alito and jointly by Kavanaugh and Roberts have some added details. Alito in a footnote references the RAND metadata study we've discussed.
See RAND Corporation, Effects of Concealed-Carry Laws on Violent Crime (Apr. 22,
2022), ... /concealed
Many of the amicus briefs filed in this case tell the story of such people. Some recount incidents in which a potential victim escaped death or serious injury only because carrying a gun for self-defense was allowed in the jurisdiction where the incident occurred. Here are two examples. One night in 1987, Austin Fulk, a gay man from Arkansas, “was chatting with another man in a parking lot when four gay bashers charged them with baseball bats and tire irons. Fulk’s companion drew his pistol from under the seat of his car, brandished it at the attackers, and fired a single shot over their heads, causing them to flee and saving the would be victims from serious harm.” Brief for DC Project Foundation et al. as Amici Curiae 31 (footnote omitted). On July 7, 2020, a woman was brutally assaulted in the parking lot of a fast food restaurant in Jefferson City, Tennessee. Her assailant slammed her to the ground and began to drag her around while strangling her. She was saved when a bystander who was lawfully carrying a pistol pointed his gun at the assailant, who then stopped the assault and the assailant was arrested.
Alito goes on to list others. The Austin Fulk incident was the catalyst for founding the Pink Pistols.

Kavanaugh and Roberts clarify the court's decision.
First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for
self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States. The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes,
that are employed by 6 States including New York. As the Court explains, New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.
Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.
Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall issue States. ... 3_7j80.pdf
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

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