Category: RKBA

Comment O’ The Day

“If rights are this absolute, however, then we cannot afford to recognize very many if government is to function.”

Now, that’s hardly true, or rather, it depends on the nature of the rights, and what you mean by government “functioning”.

For instance, for most of the nation’s history we got by with essentially zero in the way of regulation of what sorts of guns one could own. They were still selling anti-material rifles mail order when I was a child! People brought guns on airliners, and I mean in their carry on bags. You could send your minor children to buy ammo at the corner hardware store. And yet, we somehow had a government. That’s how much of a right to keep and bear arms still permitted a government to function.

We also survived having basically nothing in the way of drug laws for most of our history. Coca Cola had cocaine in it! And yet, we somehow had a government. You could have a right to ingest anything you damned well pleased, and still have a functioning government.

When you get down to it, for most of the nation’s history we had Grover Norquist’s ideal government: Small enough you could have drowned it in a bathtub. I think people generally don’t understand that: The amount of government we had for most of our history would be dismissed as anarchy today, and things worked.

Barnett has internalized the legitimacy of a degree of government intrusion on our lives that would have completely horrified Americans for the majority of our history.

Preliminary Thoughts on NYSRPA v. Bruen
A minor impact on gun laws but a potentially momentous shift in constitutional method

My contribution to a symposium on New York State Rifle & Pistol Association v. Bruen is now up on SCOTUSBlog. It is pithily entitled: A minor impact on gun laws but a potentially momentous shift in constitutional method. In it, I describe the extensive “shall issue” process I underwent to obtain my concealed carry license in DC for the many who have no idea what this process entails.

I had to pay an application fee of $75. I had to submit my application in person at the Metropolitan Police Department headquarters and be photographed and fingerprinted at an additional cost of $35. I had to pass a federal background check. I had to enroll in and pay for an approved firearms training course, which included 16 hours of classroom study of D.C. gun laws as well as the law governing the use of deadly force, plus another two hours of range instruction. In 2018, the course cost $250 plus $20 for the range fee. The monetary cost of the license amounted to $380. This was in addition to the $125 tax I paid to D.C. on the purchase of my handgun, which brought the total regulatory cost to $505. Since the course took 18 hours to complete, I took it on a Saturday and a Sunday so as not to lose two days of work.

There being no gun ranges in the District of Columbia, my course was taught in Virginia. The instructor was African American, and most of the other students in the course were members of underrepresented groups, which is unsurprising given the demographics of D.C. Since it is doubtful that any other Georgetown professor has a concealed-carry license, I suppose I too was a member of an underrepresented group.

Every two years, I must renew the license. If I miss renewing within the 30-day window before my permit expires, I have to start all over. So, two years later, I had to pay another $75 fee and complete a recertification class consisting of four hours of training, and two hours of range training from an MPD-certified firearms training instructor, which cost $160. I can afford all this, of course, though I cannot say the same for all other citizens of D.C.

This is the type of regulatory regime that, in Bruen, the court said it was not questioning: “[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.”

I then discuss my effort to understand Justice Thomas’s “text and history” alternative to the “tiers of scrutiny” doctrine that has dominated constitutional law since the 1950s. I explain why am still not sure I completely understand how it is supposed to work. The essay is long and I cannot truly summarize it my uncertainties and reservations, so you may wish to click through to read it here. Here is a taste:

There is, however, an even more fundamental question raised by Thomas’ text-and-history approach. It seems to assume that, once we use history to identify the “outer contours” of a constitutional right, then any such right bars not only prohibitions on its exercise but also trumps any statutory regulation of it. Prior to the New Deal, however, rights were not viewed as trumps on the regulatory power of government. Instead, the existence of a right barred the complete deprivation of it — that is, a prohibition — and statutes were “strictly” or “equitably” construed to avoid this result. And the existence of a right also required that a regulation be within the power of a legislature to enact. At the federal level, this meant a power delegated to Congress by the Constitution. At the state  level, this meant what is called the state’s “police power.” While broad, the state police power was not unlimited….

Thomas seems to want to limit the original scope of a constitutional right by his historical inquiry. And then the right, so limited, may not be restricted in any way. If rights are this absolute, however, then we cannot afford to recognize very many if government is to function. This would explain Thomas’ apparent movement toward an “enumerated rights only” view of constitutional rights (though he has not yet committed himself to this view). But viewing rights as absolute in this way is quite modern and ahistorical, and its invocation in a purportedly originalist opinion is therefore surprising.

I do conclude with a tentatively proposed alternative:

Perhaps a better approach would have been to distinguish between prohibiting and regulating the exercise of a right. Any prohibition of the exercise of a constitutional right is per se unconstitutional. In contrast, a regulation of how a right may be exercised is permissible, provided the ends of such a regulation are within the legislative power of Congress or a state.

Under this distinction, because the “special need for self-protection” that was required by the New York system was “distinguishable from that of the general community,” the law amounted to a prohibition on ordinary citizens exercising their constitutional right to bear arms outside the home. Not only was this the scheme’s effect; it was also its intention.

By contrast, D.C.’s “shall issue” regime provides a means by which every “law-abiding” (per the background check) citizen of D.C. can obtain a permit, so it is not a prohibition of the exercise of a constitutional right. Unlike the New York law, it is a “regulation” because it proscribes the manner of exercising the right.

It may not always be easy to distinguish a prohibition of a right from a mere regulation of its exercise. For example, is a ban on a particular class of firearms a prohibition or merely a regulation of the manner by which the right to keep and bear arms may be exercised? However, at the extremes it can be quite obvious, as I think it is with New York’s law and the D.C. and Chicago gun bans the court held to be unconstitutional in Heller and McDonald v. City of Chicago. (Even after Heller, D.C. still regulates the types of firearms that can be kept in the home or carried concealed outside.)

Rather than use modern tiers of scrutiny, when considering the appropriate regulation of constitutional rights, we should look instead to the type of eyes-open arbitrariness or rationality review that preceded the adoption of modern tiers of scrutiny. This is not, I should stress, the same as the modern eyes-closed rational basis scrutiny, which the court today considers its default approach under its tiers-of-scrutiny doctrine. (See Dobbs. “A law regulating abortion, like other health and welfare laws, … must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”)

I put the sentence above in bold because I realize how prohibitions can be characterized as regulations and vice versa. But at the extremes there is surely a difference between telling someone they cannot do something and telling them how they must do it.

Such are my preliminary thoughts on the reasoning of Bruen, whose outcome I applaud. I look forward to benefiting from the thoughts of others about the text and history approach before reaching any final verdict on its merits.

Bruen’s Originalist Analogical Reasoning Applies A Presumption of Liberty

Justice Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen may be the most important originalist opinion of all time. Its significance surpasses Heller, Crawford, and any other decision that came before it. Rather than trying to cram originalism into pre-existing standards–such as the tiers of scrutiny or a two-step test–Thomas starts from first principles. He employs originalist analogical reasoning. The Court instructs lower courts to determine the validity of a modern-day gun restriction by considering analogous restrictions in the past. But this mode of reasoning is weighted against the government, and follows a presumption of liberty. The state has the burden to justify that its restriction has historical analogues. And more importantly, the government cannot rely on sparse or attenuated historical analogues to meet its burden. Even if the evidence is at equipoise, the tie goes to freedom.

The majority opinion in Bruen methodically walks through this framework, illustrating how to apply it in different contexts.

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SCOTUS still holding these cases is a little puzzling.

SCOTUS holds on to gun, magazine ban cases pending in conference

I was hoping that after last Thursday’s historic decision in New York State Rifle & Pistol Association v. Bruen the Supreme Court might choose to put an exclamation point on its opinion by granting cert to at least one of the four Second Amendment-related cases that have been pending in conference, but instead the justices are keeping those cases in conference for at least another week.

Is this something to be concerned about? Not necessarily. Over at SCOTUSblog, reporter Amy Howe reminded readers that while last week “was the court’s last *scheduled* conference, but the court traditionally holds what we call the “clean-up conference” after all of the opinions have been issued — whenever that is, because the court has not yet announced when that day will be.”

This week will likely mark the release of the last cases of this term, so maybe we’ll see the Court take action on these four cases in the “clean-up” conference. I have a hard time with the idea that the justices are going to let these four cases dangle in the wind for several more months, especially when they don’t have to grant cert but can simply remand all of the cases down to the lower courts with instructions to follow the “text, history, and tradition” test laid out by Justice Thomas in the Bruen opinion last week.

Two of the four cases currently in legal limbo deal with bans on so-called large capacity magazines; Duncan v. Bonta takes on California’s ban while Association of New Jersey Rifle & Pistol Clubs v. Platkin challenges a nearly identical law in New Jersey. Both laws require existing owners of magazines that can hold more than ten rounds of ammunition to either permanently modify them, hand them over to law enforcement, or remove them from their possession. The third case is Bianchi v. Frosh, which argues that Maryland’s ban on “assault weapons” is unconstitutional, while the final case (Young v. Hawaii) challenges that state’s “may issue” policy for granting permits to openly carry a firearm.

In all of these cases the appellate courts (and the state Attorneys General defending the laws) relied on the interest-balancing test rejected by SCOTUS in Bruen, arguing that government could ban these commonly-owned magazines because of a public safety interest, even though the laws implicate the Second Amendment rights of law-abiding gun owners. The Court rejected that test in both the Heller and McDonald cases dealing with bans on handguns in the home, but Thomas was even more explicit about the criteria lower courts should use to evaluate the constitutionality of gun control laws in Bruen.

The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.”

To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry.

If the lower courts abide by the SCOTUS ruling (a big “if”, to be sure) then there’s not much doubt about the ultimate outcome of these cases. The Court has certainly hinted that semi-automatic rifles and 10+ round magazines, which are both in common use today, are protected by the Second Amendment, and it’s hard to point to any sort of comparable ban in either the text or the tradition of the Second Amendment. No state banned revolvers or repeating rifles when they first came on the market, even though they represented huge technological advancements in terms of both capacity and the rate of fire. It wasn’t until the last 30 or 40 years that the gun control lobby convinced blue state lawmakers to impose these types of bans, which are still the exception and not the rule when it comes to state-level gun control laws.

I continue to hope that the Supreme Court will grant cert to one or more of these cases, though the most probable outcome is that the Court ends up remanding all of these cases back to lower courts for further review. We’ll be anxiously awaiting the Court’s orders from its “clean-up conference”, and we’ll also be getting the thoughts of California Rifle & Pistol Association president and Second Amendment attorney Chuck Michel later today when he joins Bearing Arms’ Cam & Co to talk about the impact of the Bruen decision on California’s many anti-gun statutes.

How Alito’s concurrence smashes gun control

The Bruen decision is an interesting, one. Not only does Justice Clarence Thomas lay down the law–literally, in this case–on the Second Amendment, but there are a couple of concurring opinions. Cam talked about the Kavanaugh concurrence last week.

But Justice Samuel Alito also wrote a concurring opinion and, in part, it can be read as a refutation of so many gun control arguments as a whole.

But Justice Samuel Alito, in his concurrence supporting the court’s ruling, made precisely the point that we’ve repeatedly been making. Not only are the statistics Breyer cites irrelevant to the constitutionality of the law, but they are also not responsive to the problems of widespread gun ownership that this law supposedly aims to solve.

Here are his comments, with the citations removed:

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, and bars the sale of a handgun to anyone under the age of 21.

The dissent cites the large number of guns in private hands — nearly 400 million — but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

Alito is making practical observations here about the effectiveness of the law, and he is spot on. The relevant question here is what exactly do you expect the law to do? Gun-control laws are big over-promisers. Amid a mess of emotional argumentation, few people ever actually do the thinking about what a given measure is going to accomplish in the real world.

However, Alito’s comments, while directed at the dissenting opinion, provide such an incredible rebuttal of what we see from gun control as a whole.

For example, Breyer’s dissent essentially puts all gun-related problems into a single bucket, then acts as if any gun control measure you care to name will work in reducing all of those issues.

Take the bill President Biden just signed, as an example. None of that would have prevented either Buffalo or Uvalde, yet it was passed in part as a response to those. The dissent included statistics about suicide and domestic violence in a case that’s clearly about whether we have the right to carry a firearm outside of the home. As Alito noted, it makes no sense to view it that way.

But that is how gun control is generally packaged. It’s presented as the answer to all of life’s problems, so to speak, despite the fact that suicide is a mental health issue and domestic violence is a problem that exists well beyond firearms, just to use two of the stated examples.

Frankly, it’s ridiculous, but so is the idea of gun control itself.

New York’s Unconstitutional Gun Law Was Written By A Notorious, Corrupt Thug

Larry Mulligan-Hicks and Tim Sullivan

The Sullivan Act was named after Timothy D. Sullivan, one of the most corrupt politicians of his age.

On the morning of January 23, 1911, an unstable Harvard graduate with the theatrical name of Fitzhugh Coyle Goldsborough walked up to the novelist David Graham Phillips on a Manhattan street and unloaded six shots from his .32-caliber pistol into him. Goldsborough, who believed the novelist had defamed his sister, reloaded his gun, placed it against his temple, and pulled the trigger. Goldsborough died instantly.

The murder-suicide shocked the city. Although the crime destroyed many lives, none of them would change history quite like George Petit le Brun, the man who performed the autopsies on the bodies at the city coroner’s office.

“I reasoned that the time had come to have legislation passed that would prevent the sale of pistols to irresponsible persons,” he later wrote. After two years of imploring local politicians to institute gun control laws, le Brun finally found an ally in Timothy D. Sullivan, one of the most corrupt politicians of his age, a Tammany Hall operator known to New Yorkers as “Big Tim.”

One of the big talking points in the aftermath of the Supreme Court’s New York State Rifle and Pistol Association v. Bruen decision last week—it is mentioned in nearly every news piece—is that New York’s “may issue” permit law had been on the books for more than 100 years. And that’s a long time. But time does not make a law constitutional or efficacious.

The Sullivan Act, passed in 1911, was the nation’s first statewide gun control law. It required New Yorkers who possessed firearms small enough to be concealed to ask local cops—who could deny the request not just to “irresponsible persons” but to anyone, and for any reason, they liked—for a license.

People caught owning guns without one would face a misdemeanor charge, and those carrying guns without one a felony. In addition to handguns, the law prohibited the possession or carrying of weapons such as brass knuckles, sandbags, blackjacks, bludgeons, and bombs, as well as possessing or carrying a dagger, “dangerous knife,” or razor “with intent to use the same unlawfully.”

Such discretionary and capricious gun laws would allow corrupt cops to disarm rival gangs that threatened Tammany Hall’s authority or undermined its political interests. Big Tim’s cronies could use the law to punish business owners who didn’t pay protection money or deny entire neighborhoods the ability of self-defense.

Although Big Tim was corrupt in every way imaginable—he was involved in bribery, gambling, prostitution, and rigging elections, for starters—historians like Terry Golway assure us Sullivan really wanted to clean up neighborhoods “awash in cheap pistols.” “His law is now off the books,” writes Golway, “His wisdom remains.” One would have to suspend disbelief to accept that some of the most corrupt bureaucrats of the age, people who weren’t beneath exploiting women and children or shaking down businesses, wouldn’t abuse a malleable law that empowered them to deny their political opponents the right to defend themselves. Moreover, whatever Sullivan’s intentions were, there was no decline in gang violence or murder in New York in the ensuing years.

In 1911, there were 366 homicide arrests in New York. By 1920, there were 743. Then, like now, criminals remained unconcerned with attaining proper licensing before engaging in criminality. Only law-abiding citizens cared. We will never know how many shopkeepers and immigrants were left defenseless to thugs in those years. Even after the fall of Tammany, getting a gun for self-defense was prohibitively difficult. Essentially, the Second Amendment didn’t exist. The wealthy—Trumps, Sulzbergers, and Rockefellers, among many other notables—had no problem obtaining licenses over the years. This leaves poor and minorities, who often lack the resources or time to figure out the process, without their rights.

It’s always been a mystery to me why those critical of law enforcement are fine with allowing them to make key decisions. Then, as now, it was up to citizens to beg officials to allow them to defend themselves against subjective reasons that allow politicians, bureaucrats, and law enforcement to pick and choose who gets to practice their rights.

NYC gun owners celebrate Supreme Court ruling on concealed-carry

The phone has been ringing nonstop at John Deloca’s shooting range since the moment the Supreme Court ruling was announced.

Deloca, who owns the Seneca Sporting Range in Ridgewood, Queens, teaches classes that help people get New York City gun licenses and permits. The ruling may mean that New York concealed-carry permits – until now granted only to those who could prove they needed one for self defense – will now be more broadly available.

Suddenly, everyone seemed to want one.

“I go, ‘Don’t even apply. You can’t apply right now,’” Deloca said, noting that city and state leaders will likely need to work out many legal questions before the NYPD starts issuing revised concealed carry permits. “They don’t even know what’s going on.”

Guns on display at the Seneca Sporting Range in Ridgewood Queens.
Guns on display at the Seneca Sporting Range in Ridgewood Queens.

CS MUNCY / GOTHAMIST

Across the city, many gun owners celebrated the Supreme Court order, which offers broad new protections to New Yorkers and their Second Amendment rights. But their enthusiasm was tempered with caution — both around a proliferation of guns as well as lawmakers’ attempts to limit the effects of the ruling.

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See the source image

DoJ to SCOTUS on Bruen: We will just have to enforce federal law, then

So what’s stopping them? The big case that the Supreme Court decided today, New York State Rifle & Pistol v Bruen, had nothing to do with federal statutes. As far as can be seen in the Supreme Court’s filings, the Department of Justice didn’t bother with the case enough to enter any amici briefs in the case, either. The issue at hand — requiring otherwise qualified citizens to prove a need to bear arms in public — exists solely at the state level, since the federal government doesn’t issue permits on common firearms.

Regardless, someone at the DoJ thought this non-sequitur was a snappy comeback of sorts:

The Department of Justice today released the following statement from spokeswoman Dena Iverson following the Supreme Court’s decision in New York State Rifle & Pistol Association Inc., et al. v. Bruen, Superintendent of New York State Police, et al.:

“We respectfully disagree with the Court’s conclusion that the Second Amendment forbids New York’s reasonable requirement that individuals seeking to carry a concealed handgun must show that they need to do so for self-defense. The Department of Justice remains committed to saving innocent lives by enforcing and defending federal firearms laws, partnering with state, local and tribal authorities and using all legally available tools to tackle the epidemic of gun violence plaguing our communities.”

Did they just hear about this case this morning? If the DoJ had some input to give, it should have submitted its own amicus brief. One has to assume that they took a pass precisely because this case has literally nothing to do with federal law enforcement of statues currently on the books. In fact, Justice Samuel Alito made the only passing reference to federal statutes in the controlling opinion or concurrences, and then only to note tangentially that this decision doesn’t impact federal law:

The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).

Even Justice Stephen Breyer doesn’t mention anything about federal law enforcement in his dissent. At all. The Bruen case has literally nothing to do with the DoJ, at least not in its legitimate law-enforcement capacity.

So why push out this non-sequitur statement? Either Merrick Garland wants to be seen as somehow responsive to progressive hair-pulling over this limited and straightforward decision, or the White House wants Garland to put himself and his DoJ out there for support. Either way, it’s sheer political pander, but it does raise one point (via Twitchy):

This is an embarrassing take for a man whom Democrats posit as aggrieved for not getting confirmed to the Supreme Court, even if it came from one of Garland’s aides.

But if the DoJ is suddenly fired up to start “enforcing and defending federal firearms laws,” they can start by prosecuting people who try to game the background-check system despite being knowingly barred from firearms ownership. The GAO took note in 2018 of a lack of prosecutions for people who submit false applications. In 2017, the ATF referred 12,700 denied purchases (out of a total 112,090) for criminal investigation, but the DoJ only prosecuted twelve of them. The Free Beacon reported on the same issue in 2016, which eventually prompted the GAO review. Has this improved under Garland? I sincerely doubt it, but now would be a good time for the DoJ to produce the data on that question.

Besides that, Garland can also focus on enforcing federal law by finally enforcing 18 USC 1507, which makes demonstrating at the residence of a federal judge a felony. It certainly looks pretty strange to see the DoJ lecturing Supreme Court justices on enforcing the law when Garland and his team have been completely derelict in their duty to stop the intimidation campaigns aimed at these same justices. Strange, and entirely partisan.

Comment O’ The Day
Un presidente socialista siempre se va a atrever a criticar a otros poderes, independientes y autónomos, cuando sus decisiones son contrarias a sus deseos.
A socialist president will always dare to criticize other powers, independent and autonomous, when their decisions are contrary to his wishes.

Sununu Signs Controversial Firearms Bill Into Law

In the press release Gov. Chris Sununu sent out Friday about 36 bills he signed, he added a statement explaining why he signed HB 1178 prohibiting the state from enforcing any federal statute, regulation, or Presidential Executive Order that restricts or regulates the right of the people to keep and bear arms.

 “New Hampshire has a proud tradition of responsible firearms stewardship, and I’ve long said that I’m not looking to make any changes to our laws,” Sununu said. “This bill will ensure that New Hampshire’s law enforcement efforts will be on our own State firearms laws – and that’s where I believe their focus should be.”

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Quote of the day—Justice Samuel Alito

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post, at 1–8 (opinion of BREYER, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post, at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

What is the relevance of statistics about the use of guns to commit suicide? See post, at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).1

The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. See post, at 3. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

Justice Samuel Alito
June 23, 2022
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.

[I suspect that to Alito these are actually rhetorical questions.]
By now it should be increasingly clear anti-gun people are not rational. To many of them it is perfectly obvious that if someone, not an authorized government employee, possesses a gun they are “a bad guy”. That is their default way to determine good from evil. If someone has a gun they are evil and/or have intent to do evil, and should be taken into custody to prevent the crimes which they know will happen. That we want private citizens to be able possess guns is blindingly obvious proof that we want to create more criminals and crime. It’s “common sense” to them. No further discussion is needed.

And it happens at the Supreme Court of United States of America.

That is how messed up and prevalent their thinking is. It is how they justify summary execution and genocide for gun owners.

NSSF STATEMENT ON THE BIPARTISAN SAFER COMMUNITIES ACT

NEWTOWN, Conn.— NSSF®, the firearm industry trade association, has carefully examined the proposed Bipartisan Safer Communities Act legislation. NSSF appreciates the good faith effort by U.S. Senate negotiators to arrive at a proposal that would meaningfully address criminal violence all too frequently occurring in our communities. NSSF is encouraged by portions of the proposal, but we have important concerns about other aspects of the bill that impact our industry and the Second Amendment rights of law-abiding Americans.

We are thankful the Senate proposal provides significant resources for mental health treatment and services. Most of the horrendous tragedies that have befallen our communities have involved unaddressed mental health issues. We are also heartened the proposal provides necessary resources to help enhance school security to help protect the most vulnerable.

NSSF supports the effort to strengthen federal criminal law to address straw purchasing and firearms trafficking. We have led the effort to stop the illegal straw purchasing firearms and trafficking. For over two decades, NSSF has partnered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the Don’t Lie for the Other GuyTM campaign that helps educate retailers on how to detect and prevent such transactions and to educate the public that it is a serious crime.

Through our #FixNICS® initiative and support for the Cornyn-Murphy bipartisan FixNICS Act named after our program, NSSF has been the leading voice working to ensure our background check system provides timely and accurate information to retailers to ensure they do not sell firearms to prohibited persons. We strongly encourage all states to provide disqualifying juvenile records into the system so that it works as intended.

We support requiring those who are in the business of selling firearms for profit be licensed under federal law. However, the proposed legislation fails to provide clear and needed guidance to our industry – particularly those who would be newly licensed – as to what conduct constitutes a willful violation warranting a revocation of their license. This is especially important given the Department of Justice’s “zero tolerance” policy and the over 500 percent increase in license revocation proceedings that have occurred under this administration.

While NSSF understands the need for law enforcement to intervene in circumstances when someone is an imminent threat to themselves or others, we have steadfastly maintained that if that intervention involves removing a person’s firearms there must be strong Due Process protections in place. Current “extreme risk protective orders” that exist in 19 states do not come close to providing adequate due process protections when the government deprives someone of their fundamental Constitutional rights. We cannot support the use of taxpayer funds to implement more such unconstitutional laws without specific and iron clad assurances Due Process rights will be protected.

“There are several provisions of this legislative package that NSSF could support including providing more resources for mental health services and school security. However, the ambiguity over state records, the lack of clear definitions, and unaddressed due process concerns prevent us from supporting this legislative package as presented,” said Joseph Bartozzi, NSSF President and Chief Executive Officer.

NSSF encourages the Senate to continue its negotiations to arrive at a package that will provide real solutions to make our communities safer.

Appeals court revives challenge to bump stock ban

NEW ORLEANS (AP) — A legal challenge to the Trump administration’s ban on bump stocks — devices attached to semiautomatic firearms so that a shooter can fire multiple rounds with a single trigger pull — was revived Thursday by a federal appeals court.

A panel of the 5th U.S. Circuit Court of Appeals in New Orleans had upheld the ban in December, affirming a ruling by a Texas-based federal judge. But an order issued Thursday stated that a majority of the 17-member court had voted to rehear the case. The challenge was brought by a Texas gun owner and is backed by gun rights groups including the National Rifle Association.

The 5th Circuit covers Louisiana, Mississippi and Texas. Three other circuit appeals courts have so far rejected challenges to the ban. The Supreme Court has been asked to take up the issue but had not said whether it will do so as of Thursday.

The ban was instituted in 2019 after a sniper in Las Vegas used bump stock-equipped weapons in the massacre of dozens of concertgoers in 2017.

The 5th Circuit order came on the same day that the Supreme Court issued a ruling expanding gun rights, striking down a New York law and ruling that Americans have a Second Amendment right to carry firearms in public for self-defense.

At issue in the bump stock challenge was not the Second Amendment but whether bump stocks qualify as illegal “machine guns” under federal law. The rule banning the devices issued by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives said that they are.

According to the ATF, bump stocks harness the recoil energy of a semiautomatic firearm so that a trigger “resets and continues firing without additional physical manipulation of the trigger by the shooter.”

Opponents of the ATF rule argue that the trigger itself functions multiple times when a bump stock is used and that, therefore, they do not qualify as automatic weapons.

Well, the Senate passed it with 15 Republican stunnedtaters voting for it.

Senate easily passes bipartisan gun control bill, sending it to the House

The US Senate approved a historic bipartisan gun control bill Thursday night following two recent horrific mass shootings, marking the most comprehensive piece of gun reform legislation passed by federal lawmakers in nearly three decades.

The $13 billion measure was approved 65-33 and received enough Republican support to avoid a filibuster, a compromise that seemed far-fetched before a pair of 18-year-old gunmen used assault weapons to commit mass shootings at an elementary school in Uvalde, Texas and a Buffalo grocery store last month.

The rampages spurred weeks of closed door negotiations between a group of Democrats and Republicans, and 15 GOP senators ultimately crossed party lines to support the bill.

The measure toughens background checks for gun buyers under 21 and provides financial incentives for states to create mental health programs and implement “red flag” laws that would keep weapons out of the hands of criminals and the mentally ill.

It also cracks down on straw purchases of weapons, and closes the “boyfriend loophole” by banning people convicted of domestic abuse from owning a gun. The current law does not apply to abusers who are no longer married or living with their partner.

The bill was the strongest piece of gun legislation since the 1994 assault weapons ban, which expired ten years later. There were five active shooter situations in the US in 2004 compared to 61 last year, according to the FBI.

Democrats had sought much stricter restrictions, including an outright ban on assault rifles and requiring people to be 21 before they can buy semi-automatic weapons, however the once unthinkable bipartisan compromise was hailed by lawmakers in both parties as a clear message to the American people.

“This is not a cure-all for the all the ways gun violence affects our nation,” said Senate Majority Leader Chuck Schumer. “But it is a long overdue step in the right direction. Passing this gun safety bill is truly significant, and it’s going to save lives,” the New York Democrat said.

Senate Minority Leader Mitch McConnell acknowledged the Second Amendment rights prioritized by much of his base while touting the bill.

The bill is the most comprehensive piece of gun reform legislation passed by federal lawmakers in nearly three decades.

“The American people want their constitutional rights protected and their kids to be safe in school,” the Kentucky Republican said. “They want both of those things at once, and that is just what the bill before the Senate will have accomplished.”

Texas Republican John Cornyn and Connecticut Democrat Chris Murphy were among four lawmakers instrumental in hashing out the bill.

“I don’t believe in doing nothing in the face of what we saw in Uvalde,” Cornyn said.

Murphy referenced the 2012 Sandy Hook Elementary School massacre, which failed to prompt meaningful legislation in Washington.

He said Thursday’s bill would save thousands of lives and “prove to a weary American public that democracy is not so broken that it is unable to rise to the moment.”

The legislation is likely to face stronger Republican opposition in the House, where Republican Whip Steve Scalise called the bill “an effort to slowly chip away at law-abiding citizens’ 2nd Amendment rights.”

House Speaker Nancy Pelosi, a Democrat, said her legislative body would move quickly to advance the measure.

“First thing tomorrow morning, the Rules Committee will meet to advance this life-saving legislation to the Floor,” she said.

If passed, the bill would be sent to the White House.

“Our kids in schools and our communities will be safer because of this legislation. I call on Congress to finish the job and get this bill to my desk,” President Joe Biden said.

The National Rifle Association, a powerful gun lobby, had said the bill “falls short on every level.”

“This legislation can be abused to restrict lawful gun purchases, infringe upon the rights of law-abiding Americans and use federal dollars to fund gun control measures being adopted by state and local politicians,” it said in a statement Tuesday.

The measure passed in the Senate on the same day the Supreme Court struck down restrictions on the carrying of concealed firearms as unconstitutional.

SCOTUS decision has implications far beyond the right to carry

While the main focus of today’s decision in New York State Rifle & Pistol Association was on New York’s “may issue” carry laws, the 6-3 decision authored by Justice Clarence Thomas casts doubt on a number of other anti-Second Amendment laws on the books from California to New Jersey, including bans on so-called assault weapons and “large capacity” magazines.

Writing for the majority, Thomas declared that not only is New York’s law invalid, but the two-step test used by the Second Circuit to determine the constitutionality of the law is unacceptable and should not be used by any lower court. From the opinion:

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework 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 applying meansend scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

… Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.

… In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: 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.”

Is there an historical tradition of banning commonly-owned firearms in the United States? Nope. There was no 19th century equivalent to Everytown for Gun Safety calling for bans on revolvers when they were first introduced, or repeating rifles when they became widely used and commonly-owned a few decades later, much less widespread adoption of laws banning those firearms. Even fully-automatic machine guns weren’t banned under the provisions of the National Firearms Act, though owners were required to pay a $200 tax stamp and register their machine gun with the federal government.

The same holds true for banning magazines based on their capacity. No state banned the Henry repeating rifle because you could “load on Sunday and shoot all week“, and bans on detachable magazines didn’t really appear until the 1980s and are still only in place in a handful of states. These aren’t “longstanding” prohibitions and they’re not widespread either, so the argument that they don’t comport with the history, text, or tradition of the Second Amendment is a pretty easy one to make.

As it so happens, the Supreme Court has been holding on to several other 2A-related cases in conference while the Bruen case was being decided, including two cases dealing with magazine bans in New Jersey and California, as well as a challenge to Maryland’s ban on AR-15s and other semi-automatic rifles. The Court could decide to accept one or more of these cases, or it could choose to send them back down to the appellate courts with instructions to follow the proper test laid out in the Bruen decision, but either way they’re not going to be kept in limbo for much longer. The next day for the Court to release its orders is next Monday, and that’s when we’re likely to learn if the Court is going to accept another potentially blockbuster 2A case directly, or give lower courts the opportunity to follow its instructions on the proper constitutional test for gun control laws.

Did Feinstein Just Sabotage The New Gun Bill?

I don’t know whether to condemn Sen. Dianne Feinstein (D-CA) or praise her. She has filed a bill as an amendment to the Bipartisan Safer Communities Act that would raise the age to purchase many semi-auto rifles, pistols, or shotguns to 21. The impact of this amendment could cause the carefully crafted “compromise” (sic) to fall apart.

From her press release:

Senator Dianne Feinstein (D-Calif.) today filed the Age 21 Act as an amendment to the Bipartisan Safer Communities Act, the gun violence prevention bill pending before the Senate. The amendment would raise the minimum age to purchase assault weapons and high-capacity ammunition magazines from 18 to 21.

Senator Feinstein reintroduced the Age 21 Act on May 19, five days after the massacre at a Buffalo supermarket and five days before the school shooting in Uvalde, each of which involved an 18-year-old who legally purchased an assault rifle.

 “The Senate gun safety bill is a step in the right direction, but it doesn’t address the major problem of teenagers owning weapons of war,” said Senator Feinstein. “It makes no sense that it’s illegal for someone under 21 to buy a handgun or even a beer, yet can legally buy an assault weapon.  My amendment is a commonsense fix with broad public support that should receive bipartisan backing and I hope that it’s allowed a vote.”

Reading through the amendment, something as innocuous as a semi-auto shotgun such as the Mossberg 940 Pro Waterfowl Snow Goose edition would be forbidden to anyone under 21. The reasoning, according to the amendment, is that it has a tubular magazine that holds more than 5 rounds. Likewise, a turkey shotgun that had a pistol grip would be forbidden. On pistols, if you wanted to have a threaded barrel for a suppressor to protect your hearing, sorry but young ears need to be damaged is the message this amendment sends.

I really think these sorts of amendments could cause the whole thing to fall apart and force the Republicans to walk away. It is one thing to say you want to do careful background checks taking into account juvenile records for those under 21 and a whole another thing to ban a whole category of firearms to them. I don’t think a Manchin or Sinema could get by with voting for such a bill that included that along with the other stuff.

I do notice that Sen. Chris Murphy (D-CT) is not one of the co-sponsors of her original bill nor is Senate Majority Leader Chuck Schumer (D-NY).