A Second Amendment With Teeth
The Court’s Bruen decision actually protects Americans’ Second Amendment rights.
Democrat-controlled state governments may finally be starting to realize the precedent problem standing in the way of their gun-control agenda. As I wrote when the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen in June, the Court declared in that ruling a strong restoration of the Second Amendment: “the Second Amendment protects the rights of law-abiding, adult citizens (“the People”) to keep and bear arms, particularly weapons in common use. Therefore, any law restricting that right needs to be consistent with the Nation’s ‘historical tradition of firearm regulation.’”
The Court laid out a very strict and specific rule to which gun-control laws must conform in order to avoid being declared unconstitutional. As history shows, there were very few (if any) regulations concerning commonly used weapons at the time the Second Amendment was ratified. Therefore, it stands to reason that there are very few regulations concerning commonly used weapons that will survive Second Amendment analysis post-Bruen.
Of course, that will not stop the left from trying. But perhaps they will finally start to see the pattern. At the end of the 2021-2022 Supreme Court term, the Court issued a series of summary decisions in four cases, including Bianchi v. Frosh, vacating lower-court decisions principally involving “extended” magazines and assault-rifle bans. The Court’s decisions required the lower federal courts to rehear the cases in light of the decision in Bruen.
On October 5, the Supreme Court vacated a lower-court decision in a case called Morin v. Lyver. The lower court upheld the constitutionality of a Massachusetts statute that included strict licensing standards to purchase or possess a pistol. The law included a lifetime ban on licensing to those convicted of certain non-violent offenses involving possession or use of firearms. The Supreme Court used language identical to that in Bianchi v. Frosh and the other cases mentioned above: the case was “remanded to the United States Court of Appeals for the First Circuit for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen.”
These results are not surprising. The U.S. Supreme Court takes cases and writes extensive opinions when there are difficult questions of law that have not been answered, when bad precedent needs to be revisited and overwritten, and when different federal circuit courts disagree on interpretation of law. The Court will not waste its time hearing cases that have already been clearly decided—a category that will include most Second Amendment cases post-Bruen.
The Bruen test is clear. If a law restricts the right to keep and bear arms, especially weapons in common use, that law is unconstitutional unless the law is consistent with traditional, historic firearm regulations. Laws that ban or severely regulate weapons in common use are simply not going to survive scrutiny under Bruen. Both handguns and long rifles such as AR-15s are objectively weapons in common use.
Despite the obvious, the left will keep trying. Immediately after the Bruen case was decided, New York passed new gun legislation that, among other things, severely restricts where guns may be carried and requires vetting of one’s social-media accounts to determine fitness to possess a firearm. Some of these new restrictions are actually more severe than those struck down by Bruen, and courts will likely strike these down as well. There is already a legal challenge to the new laws progressing through the courts.
It is worth asking: what are these progressive state governments trying to do? Are they merely making a political statement, knowing the legislation will be struck down as unconstitutional? Are they legitimately testing the waters to find out which restrictions will pass muster post-Bruen? Are they just losing their collective minds at the fact that they no longer have free rein to pass gun-control laws that clearly violate the Second Amendment? Perhaps time will tell as we see how legislatures in blue states behave as they get one “remanded to the United States Court of Appeals for the First Circuit for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen” after another.
It is fascinating—but not in the least bit surprising—that the same voices on the left that scream about Dobbs overruling a cherished and sacred precedent are now repeatedly bashing their heads in disbelief against the constitutional precedent of Bruen. One would think by the left’s reaction to Dobbs that Supreme Court precedent is absolute and sacrosanct—Curia locuta, causa finita. But when it receives a precedent enshrining the constitutional right to bear arms as rigidly as Bruen, the left shows no such reverence—even though the Second Amendment, unlike a right to abortion, is actually contained in the text of the Constitution. As usual, this is about political outcome, not principle.
Get weekly emails in your inbox
It is also important to point out a serious difference between the precedents in Dobbs and Bruen. Despite the ridiculous claims to the contrary, Dobbs does not restrict democracy. The Dobbs case stated that abortion is not a constitutional right, and left abortion policy up to legislatures. Dobbs actually does not create a positive law but only an open space to legislate. Bruen, on the other hand, actually does restrict democracy insofar as constitutional rights restrict what legislatures can do.
So, while Dobbs may get the most media attention as signaling the end of freedom and democracy, it is actually quite a liberal opinion in the sense that it leaves voters and their representatives completely free to legislate on abortion however they see fit. Bruen and the Second Amendment do the opposite: the ability of legislatures to enact gun laws is now severely restricted post-Bruen. And given the clear text and history of the Second Amendment, that is right and proper.
In the wake of Dobbs, the future of abortion law and policy across the nation is uncertain. But Bruen definitively changes the landscape on an important policy question in a way that Dobbs does not. For now, it seems we can be confident that, no matter how many attempts liberal state governments make to restrict gun ownership, the Supreme Court’s Bruen decision has given us a restored Second Amendment with teeth, ensuring that the right of the people to keep and bear arms will not actually be infringed.