When I am depressed, despondent, and disaffected, I reach for a glass of Lagavulin and my annotated copy of Judge Benitez’s decision in Duncan v Bonta (Becerra). His turn of phrase and invectives at the State make me smile. His full-throated protection of the Second Amendment and the Constitution warms my darkened heart.
Last Thursday morning I was given another gift of reading material.
As you are all well aware by now, Justice Thomas delivered the majority opinion of the Court in NYRPA v Bruen. This was a 6-3 decision, (Yes… Chief Justice Roberts did not “water it down”.) and the conjuring opinions by Justice Alito, Justice Kavanaugh and Justice Barret were equally instructive (Justice Kavanaugh particularly so).
Before we go into this, though, I need to offer a mea culpa.
My predictive abilities remain unmatched. If I tell you something is going to happen in the future, you can absolutely, positively be assured that it will, in fact, happen… the exact opposite of my prediction. My track record is nearly unblemished. Like the great philosophical giant George Castanza… I would be well served by simply doing the opposite of my instincts.
I had stated emphatically that I thought the ruling in NYRPA would be a “win” for us, but I thought it was going to be a narrowly-tailored win. My colleagues in the Second Amendment bar thought the Supremes would hand down a transformational victory for us, something that would strike down all gun control laws, and not only rid us of the “good cause” requirement, but also rid us of the roster, assault weapons bans, magazine capacity restrictions, and commercial ammo regulations.
They were right… I was wrong.
Justice Thomas issued forth a full, muscular endorsement of the Second Amendment and provided us a clear Constitutional test to determine if a statute violates the Constitution. For years, appellate courts had applied what we call an “intermediate level of review”… essentially a means-testing balancing act to see if the underlying statute being challenged comported with “reasonable restrictions” on the Second Amendment. As a practical matter, these appellate courts (save the three-judge panel at the Ninth Circuit in Duncan) routinely upheld any gun control law that came before it.
Well… that ship has officially sailed.
Let’s go over some of the “choice” passages in NYRPA and explain the “plain text informed by history” approach the Court now calls for when determining the Constitutional validity of a gun control law.
Heller and McDonald expressly rejected the application of any “judge empowering ‘interest-balancing inquiry’ that asks whether the astute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important, governmental interests.” 597 U.S.___(2022) p.18.
Basically, the determination of a statute’s Constitutional validity should not be made by the vagaries and biases of a judge deciding if the statute balances the interests of the State against the people. Instead, there should be a historical analysis to see what the Framers intended at the ratification… because:
We declined to engage in means-end scrutiny because “[t]he very enumeration of the right takes out of the hands of government-even the Third Branch of Government- the power to decide on a case-by-case basis whether the right is really worth insisting upon” 597 U.S.___(2022) p.14
He does grouse a little bit… which is perfectly okay with me:
[R]eliance on history to inform the meaning of a Constitutional text-especially text meant to codify a pre-existing right- is in our view, more legitimate and more administrable, than asking judges to “make difficult empirical judgments” about the costs and benefits of firearms restrictions especially given their “lack [of] expertise” in the field. 597 U.S.___(2022) p. 16.
And then there is the money shot… this is the big one:
The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. 597 U.S.___(2022) p. 18.
There was, of course, some concern that the anti-gun legislative crowd would, in the case of a win by our side in NYRPA, simply make a law saying that all public places are “sensitive places” and, therefore, subject to regulation and, thus, illegal to carry a firearm there. Well…Thomas clearly anticipated that and threw up this road block:
Expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment… 597 U.S.___(2022) p. 22.
But… what about a “longstanding tradition of regulation” that came about after the ratification of the Constitution? Doesn’t that count for something???
In other words, we recognize that “where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous Constitutional provision. But to the extent that later history contradicts what the text says, the text controls. 597 U.S.___(2022) p. 27.
Then there is Justice Kavanaugh’s concurring opinion… which for us is quite important:
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 effect 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 the 6 States including New York 597 U.S.___(2022) p. 2 Kavanaugh J. Concurring.
So… we now have a “test” and guidance. While this case was originally focused on carriage of a firearm outside the home, the Court has without question expanded upon that. Conduct (such as buying / selling / possessing / manufacturing / using ) that is regulated by the State of the Federal government is now subject to Constitutional review, and FINALLY an abandonment of the appellate courts’ nefarious statute protecting “two-step process”.
A lot of motions are about to be filed on existing litigation, and I suspect a slew of litigation to spring forward from this as well.
Its about to get real!
If you’d like to continue the chat, law partners LTC Cosmo Taormina and CPT Steven Lieberman are gathering for another session of Drinks with LTC & The Captain tonight, at Wednesday, June 29th, 2022 from 7:30 – 8:30 pm PST, via Zoom. With their focus on 2A jurisprudence, they’ll discuss the US Supreme Court’s Decision on NYRPA v BRUEN. Register to get the Zoom link now!