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.
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.
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.
Hannah Hill, director of research and policy at the National Foundation for Gun Rights, told Pew Trust Stateline that the “text, history and tradition” test eventually will lead to a day when people in every state can carry firearms without a permit. “This is going to have massive implications,” Hill said, adding that “it’s a radical test, and if applied accurately it will have radical results. A lot of gun laws will not be able to withstand Second Amendment scrutiny.”
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Harris doesn’t agree with Hill’s characterization that the strict scrutiny test for all gun laws is “a radical test.” He thinks it’s constitutional. “I don’t agree that it’s a radical test. Heller proposed something like this and announced something like this and specifically rejected scrutiny tests, but the appellate courts never really took into that and they just kinda did what they wanted for the last few years.” They basically thumbed their nose at the law. That’s why the Supreme Court took the Bruen case.
But, he said, “I do think we’ll use it to gain a lot of ground in states with novel and onerous [regulations]. For example, microstamping… requiring newly manufactured firearms to have the capability to imprint that firearm’s serial number onto a shell casing when the gun is fired.” He says there’s no way to do that right now, and it would be “difficult to sustain under this historical test” imposed by Justice Thomas in his decision.
Red flag laws will come under new scrutiny under this decision as well, predicts Harris, who says, “there are first amendment issues, second amendment issues, and fourth, fifth, and sixth amendment issues” involved in these laws.
Oregon Firearms Federation leader Kevin Starrett told PJ Media that as a result of the Bruen decision there will be a wave of unscrupulous moves by officials trying mightily to get around it. “I think we are going to see chaos and massive disrespect for the law by elected officials. As you know, California just released all the private info of [concealed weapons permit] holders. There will be more vindictive actions like that.”
Starrett believes that changes to the current gun laws will take “several years before they get to SCOTUS” but cautions that the political prosecutions and other lawlessness by the feds will get worse. “I suspect that everything we have ever assumed about our legal processes will soon be history. We are basically in a lawless phase now where leftists ignore the law and the established rules and anyone who tries to live by them could find themselves in prison.”
Do Americans have expanded gun rights? And do those rights expand to other gun control limitations? Yes, but only if judges and attorneys general don’t ignore them.
See you in court. Again.