{"id":99124,"date":"2024-01-06T15:31:36","date_gmt":"2024-01-06T21:31:36","guid":{"rendered":"https:\/\/milesfortis.com\/?p=99124"},"modified":"2024-01-06T15:32:22","modified_gmt":"2024-01-06T21:32:22","slug":"99124","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=99124","title":{"rendered":""},"content":{"rendered":"

For gun rights advocates, a \u2018Bruen\u2019 bonanza<\/a>
\nUpholding weapons ban just one development<\/em><\/p>\n

In a Dec. 22 press release, the Attorney General\u2019s Office trumpeted the fact that it had successfully defended the state\u2019s assault weapons ban in federal court.<\/p>\n

But not only has the final chapter in that case,\u00a0Capen and National Association for Gun Rights v. Campbell<\/em><\/a>, not yet been written, there is no end in sight \u2014 here and across the country \u2014 to the battles spawned by\u00a0the Supreme Court\u2019s 2022 ruling in\u00a0New York State Rifle & Pistol Association v. Bruen<\/em><\/a>.<\/p>\n

In\u00a0Bruen<\/em>, the Supreme Court refined the Second Amendment jurisprudence it had previously laid out in\u00a0District of Columbia v. Heller<\/em><\/a>\u00a0and\u00a0McDonald v. Chicago<\/em><\/a>, clarifying that it believed that appellate courts had gone astray in interpreting\u00a0Heller<\/em>.<\/p>\n

Since\u00a0Heller<\/em>, the appeals courts had developed a \u201ctwo-step\u201d framework for analyzing Second Amendment challenges, combining history with means-end scrutiny, which the\u00a0Bruen<\/em>\u00a0court said was one step too many<\/strong>. The proper test should involve drawing analogies to the country\u2019s history of firearm regulation alone, the Supreme Court ruled.<\/p>\n

The court stressed that it was attempting to create \u201cneither a regulatory straightjacket nor a regulatory blank check.\u201d As courts were engaging in \u201canalogical reasoning,\u201d they need only find \u201ca well-established and representative historical analogue, not a historical twin,\u201d Justice Clarence Thomas wrote for the six-member majority in\u00a0Bruen<\/em>.<\/p>\n

Since that ruling, courts in Massachusetts and elsewhere have begun fleshing out the standard, often prompted by cases filed by emboldened gun rights advocates. Recent weeks have not only seen U.S. District Court Chief Judge F. Dennis Saylor IV\u2019s denial of the plaintiffs\u2019 motion for a preliminary injunction in\u00a0Capen<\/em>\u00a0but a Superior Court judge similarly rejecting a post-Bruen<\/em>\u00a0challenge to Massachusetts\u2019 ban on anyone under the age of 21 obtaining a license to carry a handgun outside their home.<\/p>\n

Meanwhile, gun rights advocates are celebrating a Lowell District Court judge\u2019s decision to dismiss a charge of carrying a firearm without a license that a New Hampshire man had been facing for bringing the weapon he was licensed to carry in his home state across state lines.<\/p>\n

Bruen<\/em>\u00a0has also revived a challenge to the state\u2019s \u201cgun roster\u201d in the federal case\u00a0Granata, et al. v. Campbell, et al.,<\/em>\u00a0and spawned a new lawsuit challenging gun license delays of six months or more in Boston in\u00a0White, et al. v. Cox<\/em>.<\/p>\n

<\/p>\n

In \u2018Capen,\u2019 appeal planned<\/strong><\/h2>\n

Reacting to Saylor\u2019s decision on Twitter, Hannah Hill, the executive director of\u00a0Capen<\/em>\u00a0co-plaintiff National Association for Gun Rights, not only bestowed a \u201cGrinch Award\u201d on the judge but vowed to file a petition for review with the 1st U.S. Circuit Court of Appeals.<\/p>\n

Most observers suspect that the plaintiffs\u2019 Second Amendment challenge to G.L.c. 140, \u00a7\u00a7121 and 131M \u2014 which prohibit the possession, sale and transfer of certain semiautomatic weapons, as well as magazines capable of holding more than 10 rounds of ammunition \u2014 will not be warmly received by the 1st Circuit. But that may still fit into the plans of gun rights activists to create a circuit split that the U.S. Supreme Court needs to resolve.<\/p>\n

In his 38-page decision, Saylor outlined the evolution of Second Amendment jurisprudence through\u00a0Heller<\/em>,\u00a0McDonald<\/em>\u00a0and\u00a0Bruen<\/em>, along with the court\u2019s per curiam opinion in\u00a0Caetano v. Massachusetts<\/em>, in which the court overturned a decision of the Supreme Judicial Court upholding a statute prohibiting the possession of stun guns.<\/p>\n

Heller<\/em>\u00a0reaffirmed that the regulation of certain types of weapons is permissible, including those not in \u201ccommon use\u201d and \u201cdangerous and unusual\u201d weapons, which have historically been subject to regulation, Saylor said.<\/p>\n

Courts and commentators have been confused over the meaning and application of the phrase \u201cin common use\u201d and the interplay between \u201cin common use\u201d and \u201cdangerous and unusual,\u201d Saylor noted.<\/p>\n

In reaching his decision, Saylor rejected the plaintiffs\u2019 contention that \u201ccommon use\u201d could be determined by the number of copies of the weapon that have been sold.<\/p>\n

\u201cSuch a rule would lead to absurd results,\u201d Saylor wrote. \u201cAmong other things, the constitutionality of the regulation of different firearms would ebb and flow with their sales receipts.\u201d<\/p>\n

The judge said there were two possible approaches to considering the issue of \u201ccommon use,\u201d but that under either, the result in\u00a0Capen<\/em>\u00a0would be the same.<\/p>\n

\u201cThe question thus becomes whether \u2018the regulation is consistent with this Nation\u2019s historical tradition of firearm regulation,\u2019\u201d Saylor said.<\/p>\n

On that front, the defendants had the more persuasive argument, in light of the modern phenomenon of mass shootings, he found.<\/p>\n

\u201cHigh-fatality homicide events committed by individuals only became possible after the development of assault weapons,\u201d Saylor wrote.<\/p>\n

He concluded that the \u201cbanned weapons are \u2018dangerous,\u2019 because they are unreasonably dangerous for ordinary purposes of self-defense due to their extreme lethality and high potential for collateral harm, and they are \u2018unusual,\u2019 because it would be unusual for an ordinary citizen to carry such a weapon on his person on the street for self-defense, or to use it in the home to confront invaders or to protect against personal violence.\u201d<\/p>\n

Reaction on both sides<\/strong><\/h2>\n

Filing an amicus brief in\u00a0Capen<\/em>\u00a0is in keeping with her nonprofit organization\u2019s efforts to support states that passed legislation after the federal assault weapons ban expired, said Shira Feldman of the Brady Center to Prevent Gun Violence.<\/p>\n

\"Keith\u201cTrying to criminalize a class of firearm based upon cosmetic features is about as effective as trying to prevent speeding by outlawing mag wheels and racing stripes.\u201d<\/span><\/strong><\/p>\n

\u2014 Keith G. Langer, Wrentham<\/strong><\/span><\/p><\/blockquote>\n

Even after\u00a0Bruen<\/em>, there is a history of finding space within the Second Amendment to enact categorical bars on \u201cweapons of war,\u201d the Brady organization contends.<\/p>\n

But Wrentham gun rights attorney Keith G. Langer sees no reason to place assault weapons in a special category, especially given that the federal assault weapons ban \u201cwas an utter failure.\u201d<\/p>\n

Saylor is just the latest jurist to be swayed by what Langer calls \u201ccosmetic features\u201d of semi-automatic weapons, noting that FBI statistics show that handguns are used far more often in criminal offenses.<\/p>\n

\u201cTrying to criminalize a class of firearm based upon cosmetic features is about as effective as trying to prevent speeding by outlawing mag wheels and racing stripes,\u201d he said.<\/p>\n

Springfield gun rights attorney Daniel C. Hagan agreed with Langer\u2019s assessment, adding that the current Massachusetts law exempts any use of firearms that were manufactured before a certain date in September 1994.<\/p>\n

\u201cIf any of those firearms or magazines were already in existence and are still in existence today, they\u2019re still perfectly legal to own,\u201d he said. \u201cSo, if you had one on Sept. 13, it\u2019s not dangerous and unusual, but on Sept. 14, it becomes dangerous and unusual. I think it\u2019s arbitrary.\u201d<\/p>\n

But at least thus far, courts that have been presented with challenges to assault weapons bans post-Bruen<\/em>\u00a0have agreed with Saylor\u2019s analysis, according to Feldman. Still, she\u00a0 acknowledges that there are outliers, like U.S. District Court Judge Roger Benitez in San Diego, who has twice now overturned California\u2019s three-decade-old ban on assault weapons. By a 2-1 vote, a panel of the 9th U.S. Circuit Court of Appeals decided to stay Benitez\u2019s ruling, pending appeal in late October.<\/p>\n

\u2018Rahimi\u2019 may offer clarity<\/strong><\/h2>\n

The Supreme Court may \u2014 or may not \u2014 eventually offer some insight as to whether Saylor properly sorted through the questions raised by\u00a0Bruen<\/em>\u00a0when it issues its decision in the case\u00a0United States v. Rahimi<\/em>, which was argued in November.<\/p>\n

In\u00a0Rahimi<\/em>, the government is appealing the decision of the 5th Circuit to wipe out a defendant\u2019s conviction under a federal law that bars anyone subject to a domestic violence restraining order from possessing a gun.<\/p>\n

During oral arguments in\u00a0Rahimi<\/em>, even the justices inclined to look unfavorably on firearms regulation that seemed to be recognizing, albeit \u201ca little late,\u201d that there may be some flaws with\u00a0Bruen\u2019s<\/em>\u00a0history-and-tradition test, said Suffolk University Law School Professor Renee Landers.<\/p>\n

\u201cThere was a history and tradition of men being able to do whatever they wanted with their wives; obviously, that\u2019s not going to fly in today\u2019s day and age,\u201d she said.<\/p>\n

Though generally optimistic about the decision\u00a0Rahimi<\/em>, it is near impossible to predict whether the Supreme Court will use\u00a0Rahimi<\/em>\u00a0to broadly reexamine the\u00a0Bruen<\/em>\u00a0test, said Feldman\u2019s Brady colleague, Douglas Letter.<\/p>\n

A hopeful sign is that the solicitor general was asked during the oral argument in\u00a0Rahimi<\/em>\u00a0how she would clarify\u00a0Bruen<\/em>, and she offered up three specific suggestions, Feldman said.<\/p>\n

On the other hand, Boston University School of Law Professor Cody Jacobs said it is hard for him to imagine there being five votes to uphold an assault weapons ban once it reaches this Supreme Court. Yet the court is \u201cin a bind with\u00a0Rahimi<\/em>,\u201d he added.<\/p>\n

To reach a decision to uphold the federal law in\u00a0Rahimi<\/em>, it may well need to water down or otherwise alter the historical analogue test in a way that makes it difficult not to preserve assault weapons bans as well, Jacobs said.<\/p>\n

\u201cThere is a tension between the politics and legal logic,\u201d he said.<\/p>\n

Age limit upheld<\/strong><\/h2>\n

Meanwhile, in the Middlesex Superior Court case\u00a0Commonwealth v. Isert<\/em>, defendant Ethan Isert moved to dismiss his indictments for unlawful possession of a loaded firearm and unlawful possession of ammunition, crimes that the indictments allege he committed when he was 18.<\/p>\n

The commonwealth could not identify a Colonial-era or founding-era firearm restriction directed at people aged 18 to 20, said Isert\u2019s attorney, Keren E. Goldenberg of Belmont.<\/p>\n

\u201cSo, even if we all agree that keeping guns away from people under 21 is a good idea considering what we now know about emerging adult brain development, I do not believe that it is constitutional post-Bruen<\/em>,\u201d she said.<\/p>\n

Goldenberg said she viewed the\u00a0Bruen<\/em>\u00a0history-and-tradition test as narrow, particularly when the restriction deals with a general societal issue that was present in the 18th century, such as people under 21 carrying firearms.<\/p>\n

However, Judge Kenneth W. Salinger took a more expansive view of the\u00a0Bruen<\/em>\u00a0test, pointing to the historical tradition of disarming groups that the government believed could be dangerous, including free and enslaved Black people, indigenous people, Catholics and British Loyalists.<\/p>\n

Citing the 2013 SJC case\u00a0Diatchenko v. Dist. Att\u2019y for Suffolk Dist.<\/em>, Salinger said it is now well established that juveniles under the age of 18 \u201cdemonstrate a \u2018lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.\u2019\u201d<\/p>\n

\u201cSince the Nation\u2019s historical traditions permit barring categories of potentially dangerous persons from carrying a firearm, and we now know that 18- to 20-year-olds generally have the impulsive recklessness that would make them dangerous if they had access to a firearm, the age restrictions in the Massachusetts license-to-carry statute pass muster under the Second Amendment,\u201d Salinger concluded.<\/p>\n

Attorneys say Salinger\u2019s decision may stand on even sturdier ground than Saylor\u2019s.<\/p>\n

\u201cI\u2019m not surprised that the motion to dismiss was denied,\u201d said Boston attorney Joseph B. Simons. \u201cBruen<\/em>\u00a0did not go as far as the defendant would have liked.\u201d<\/p>\n

Indeed, it was a common misperception in the immediate aftermath of\u00a0Bruen<\/em>\u00a0that the decision would \u201ccompletely gut\u201d Massachusetts\u2019 licensing schemes, said Wakefield attorney Neil S. Tassel.<\/p>\n

\u201cPeople more familiar with licensing knew that was not really the case,\u201d Tassel said.<\/p>\n

A win for gun rights<\/strong><\/h2>\n

But it has not been all bad news for gun rights activists in Massachusetts, post-Bruen<\/em>. In the Lowell District Court case\u00a0Commonwealth v. Donnell<\/em>, the defendant, a New Hampshire resident, lodged a constitutional challenge to his charge under G.L.c. 269, \u00a710(a), for carrying a firearm without a license.<\/p>\n

Part of his argument was that requiring non-residents to obtain licenses to carry firearms violates the Second Amendment because there is \u201cno historical analogue\u201d burdening the right to interstate travel.<\/p>\n

In assessing that argument, Judge John F. Coffey noted that\u00a0Bruen<\/em>\u00a0had \u201cchanged the legal landscape \u2026 particularly how it affects existing firearm statutes and challenges to their constitutionality.\u201d<\/p>\n

Prior to\u00a0the SJC\u2019s 2023 decision in\u00a0Commonwealth v. Guardado<\/em><\/a>, Massachusetts treated the possession or carrying a firearm outside of one\u2019s home as a \u201cprivilege\u201d that was conferred on a person by the state.<\/p>\n

Given the\u00a0Bruen<\/em>\u00a0decision \u2014 and the fact that the defendant\u2019s conduct in\u00a0Donnell<\/em>\u00a0was clearly covered by the Second Amendment \u2014 the burden fell on the commonwealth to justify the law showing that it is consistent with the country\u2019s tradition of firearm regulation.<\/p>\n

It could not do that, Coffey concluded.<\/p>\n

\u201cA law-abiding resident of New Hampshire who is exercising his Constitutional right should not become a felon by exercising that right while he is traveling through Massachusetts merely because he has not obtained a license to carry, which now, under the holding of\u00a0Bruen<\/em>, has to be issued to an applicant unless the applicant is otherwise disqualified,\u201d Coffey wrote. \u201cThe standard for who is a disqualified individual must be the same.\u201d<\/p>\n

Coffey said he could \u201cthink of no other constitutional right which a person loses simply by traveling beyond his home state\u2019s border into another state continuing to exercise that right and instantaneously becomes a felon subject to mandatory minimum sentence of incarceration.\u201d<\/p>\n

The Middlesex DA\u2019s Office has appealed Coffey\u2019s decision, and briefs in the Appeals Court case are due Feb. 23.<\/p>\n

Jacobs said he viewed Coffey\u2019s decision as inconsistent with\u00a0Bruen<\/em>\u00a0and predicted it would be quickly overturned.<\/p>\n","protected":false},"excerpt":{"rendered":"

For gun rights advocates, a \u2018Bruen\u2019 bonanza Upholding weapons ban just one development In a Dec. 22 press release, the Attorney General\u2019s Office trumpeted the fact that it had successfully defended the state\u2019s assault weapons ban in federal court. But not only has the final chapter in that case,\u00a0Capen and National Association for Gun Rights … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,50,8],"tags":[],"class_list":["post-99124","post","type-post","status-publish","format-standard","hentry","category-courts","category-goobermint","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/99124","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=99124"}],"version-history":[{"count":2,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/99124\/revisions"}],"predecessor-version":[{"id":99126,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/99124\/revisions\/99126"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=99124"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=99124"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=99124"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}