Supreme Court Justice Clarence Thomas made it clear in New York Pistol and Rifle v. Bruen that the Second Amendment is not a second-class civil right. The question now is: How far will this decision go? After consulting numerous gun and constitutional lawyers, the short answer is: Very far.
Thomas made it clear that Americans’ right to not have a firearm in their homes is second-class in modern times.
Thomas stated that “we don’t know of any other constitutional right an individual can exercise, except after demonstrating a special need to the government officials.” Thomas stated that the First Amendment doesn’t operate in this way when it concerns unpopular speech or the freedom to exercise religion. He also said that the Sixth Amendment does NOT work when it involves the defendant’s right to confront witnesses against him.
The decision didn’t address licensing, background checks, or training requirements. The decision did not limit the number of people who could be granted a gun permit for felons or mentally incapacitated.
The decision has been made public since June 23rd. I searched for the answer to this question and spoke with experts in gun law from across the country.
These are just a few of the many questions that arise. Can bans on guns that are “in widespread use” apply to guns owned by millions? Are there restrictions on accessories for guns in the United States? These restrictions include ammunition, “precursor”, [gun parts], magazine size, ammo size, stocks, sights, and changeable lowers.
Chuck Michel of the California Rifle and Pistol Association (CRPA) notified all 58 County Sheriffs that the Bruen ruling had affected the state’s ability to issue or grant concealed gun permits. Currently, CRPA is litigating California’s magazines’ limitations and “assault weapons” bans.
As it turns out, all these issues are affected by the Bruen decision.
Mike Davis is a constitutional law lawyer and the head of the Article III Project. He stated that these restrictions on guns would need to be closely monitored from now on.
He stated that now the state has the responsibility of determining if a person is a felon, unworthy, or both. However, it will have to do so with strict scrutiny and a higher standard. He stated that the same applies to laws regarding magazine sizes and semiautomatic limits.
William Kirk, Washington Gun Law, stated on the Adult in the Room Podcast that Justice Thomas’s opinion was clear — there can be no debate about it – that restrictions like those pertaining to ARs must be applied strictly. “They won’t survive constitutional scrutiny, I don’t think. ”
Dillon Harris, a Pennsylvania gun lawyer, stated to the Firearms Industry Consulting Group, that all gun-grabbing statutes are being scrutinized. Harris also said that the prior test to determine if a gun statute is constitutional was done under an immediate scrutiny threshold. This test is simpler than strict scrutiny for assessing government rules and regulations.
Justice Thomas referred two gun cases to him and stated that the Courts of Appeals had created a “two-step” framework for analyzing Second Amendment issues. This framework combines history with means-end scrutiny. Justice Thomas referred to two gun cases and said that the Courts of Appeals had developed a “two-step” framework for analyzing Second Amendment issues. Heller and McDonald’s disagree with the second step, which applies means end scrutiny to the Second Amendment context.
Harris stated, “If any litigation is in progress regarding gun registration bans and age limits,” those cases would still be “live” and have to be reopened under the Bruen decision parameters. Depending upon where the court is located it could mean that new litigation will be required in certain instances.
Hannah Hill is the director of policy research and policy at the National Foundation for Gun Rights. She said to Pew Trust Stateline that the test would have “major consequences” and that many gun laws will not be able to withstand scrutiny under Section 2_
Harris disagrees with Hill’s description that the strict scrutiny of all gun legislation is “a radical test.” Harris disagrees with Hill’s description of the strict scrutiny test for all gun legislation as “a radical test.” However, the appellate courts did not really consider this and simply did what they wanted for a few more years.
He stated that he believed the program could be used to gain ground with states with stricter regulations. He stated that there was no way to do it right now and that it would be hard to keep the program alive under the historical test that Justice Thomas imposed in his decision.
Red flag laws will also be under scrutiny due to this decision. Harris predicts Harris will say that there are “first amendment problems”, second amendment issues, and fourth, fifth, and sixth amendment issues in these laws.
Kevin Starrett of the Oregon Firearms Federation said that officials would try to circumvent Bruen’s decision by making a lot more shady moves. ”
Starrett thinks it will take “several years” to amend gun laws. However, he warns that political prosecutions from the feds and other forms of lawlessness could make matters worse. ”
Are Americans expanding gun rights? Can those rights be extended to gun control restrictions? Yes. But only if they’re not ignored by the courts and attorneys general.
We’ll see you in court.