Colt AR-15 Sporter Lightweight rifle. This file is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.
A GREAT WEEK FOR THE SECOND AMENDMENT IN THE UNLIKELIEST OF PLACES THANKS TO THE CLARITY AND FORCE OF BRUEN AND HELLER
OVERVIEW & INTRODUCTION
In N.Y. State Rifle and Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), Justice Thomas, writing for the majority, made clear that the right to keep and bear arms for self-defense beyond the home was not a second-class right but an integral part of the natural right of self-defense guaranteed to all Americans who lawfully and in good faith carry commonly used arms. The Court disavowed previous “balancing tests,” which devolved into a regional hodgepodge of ill-reasoned decisions. The court fashioned a strict scrutiny test that will guide trial-level and appellate courts in weighing the constitutionality of restrictions on both weapons and limitations on where a citizen can bear such weapons in the pursuit of self-defense. New York had for years imposed a “proper-cause” need-based threshold for the issuance of a public carry permit. Such cause was never found unless you were a celebrity or knew someone special. This was struck down. Justice Thomas wrote:
“The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U.S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”
Most importantly, the Court held:
“… the Government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with the nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.”
The Court did reiterate the District of Columbia v. Heller 554 U.S. 570 justices holding that reasonable restrictions on the right would pass constitutional muster, including regulating carry or possession in “sensitive places” such as schools, government buildings, and other places where historically weapons were curtailed or banned.
CUE THE PROGRESSIVE LEGISLATURES
Seizing on this language and stinging from their defeat, the New York legislature and others, including Maryland, to be discussed below, quickly sought to define “sensitive places” as virtually any place essentially rendering the natural right of armed self-defense without substance. The challenges have commenced, but last week a United States District Court in Maryland declared that many such restrictions were unconstitutional. The Court granted summary judgment without even a trial as to some of the restrictions, holding:
“..the Court will grant Plaintiffs’ Motions for Summary Judgment in part as to (1) locations selling alcohol for onsite consumption, CR § 4-111(a)(2)(8)(i); (2) private property without the owner’s consent, id. § 6-411(d); and (3) within 1,000 feet of a public demonstration, id. § 4-208. These laws will be permanently enjoined.”
Kipke v. Moore (D. Md. 2024, August 2nd) Civil number GLR-23-1293.
Some good news from the People’s Republic of Maryland, one of the most gun-averse jurisdictions in the United States.
VINDICATION FOR THE AR-15 IN-YES- NEW JERSEY??? NOT SO MUCH FOR THE MAGAZINES THOUGH
Last week, in the unlikeliest of places, the United States District Court for the District of New Jersey (yes, New Jersey, where someone was arrested on a felony warrant and later released because he had an antique flintlock in his car), in Association of New Jersey Rifle and Pistol Clubs et al. v. Platkin (July 30th, 2024), the court overturned that portion of New Jersey’s “Assault Weapons” Ban that covered AR-15 style rifles. The court, considering the “common use” language of Heller and the strict scrutiny test of Bruen, held:
“When undertaking this common use for lawful purposes inquiry, the Court finds that Plaintiffs have satisfied their burden with respect to the AR-15. Plaintiffs have shown that the weapon is “overwhelmingly chosen by American society for [a] lawful purpose.” Heller, 554 U.S. at 628. AR-15 firearms are produced by a multitude of manufacturers and are commonly owned throughout the United States. It is estimated that as of 2022, AR-15s and similar spotting rifles had around 24 million owners; this ownership number was exceeded only by the number of registered handgun owners within our nation.”
However, in considering the ten (10) round magazine limitation, the court’s historical analysis led it to uphold the ban after an examination of the history of magazine capacity in rifles, and it was persuaded that evidence of magazines of high capacity used in modern mass shootings and the patchy history of magazine limitations in the nation’s history made the restriction constitutional. This ruling is contrary to other circuits, and for now, AR-15 owners, pending appeal, will slam 10 round mags into the magwell. Mixed bag but not bad for New Jersey, another on the list of anti-gun states. Bruen and Heller have clearly forced the hand of the courts, all too willing to render the Second Amendment a second-class right. However, progressive legislatures and indeed Congress will continue to spar with law-abiding gun owners to forever try to erode this right, or perhaps, by packing the Supreme Court, overrule Heller and Bruen. Elections have consequences.
Mike Imprevento
August 2024
