An Analysis of Bruen from Duke

[GEM]

Here's a legal review take on Bruen. My view from NYS is that the CCIA response to Bruen screwed the state for years and Scotus hasn't been any help for relief as of yet.

Clarence Thomas Created a Confusing New Rule That’s Gutting Gun Laws

New research indicates that last year’s Bruen case has gutted more than a dozen gun laws.

www.politico.com

The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History

In June 2022, the Supreme Court struck down a state concealed carry law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Associa

papers.ssrn.com

In June 2022, the Supreme Court struck down a state concealed carry law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. That test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically-focused Supreme Court case law and a harbinger of future doctrinal transformations in other domains.

This Article critically assesses Bruen’s test, and in the process raises concerns about other areas of rights-jurisprudence trending in ever more historically-inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and its unworkable features. It underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than the Court even tries to justify. The Article then synthesizes and analyzes the results from more than 300 lower federal court decisions applying Bruen, which reveals the test’s fundamental unworkability.

On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and amplifies arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s gaps and mitigate its open texture, and suggests that courts are justified in narrowing Bruen from below. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs.

 

[Master Blaster]

I have been saying the ruling isnt a victory at all but the gateway to endless litigation. Litigation is a big business, Bruen has already generated milllions in legal fees.
Follow the money.

 

[AlexanderA]

None of the Court's 2nd Amendment decisions -- Miller, Heller, McDonald, Bruen -- have been intellectual masterpieces. Mostly, they have just reflected the political bickering among the Justices, and the compromises that had to be made to arrive at a consensus. Not a very solid foundation going forward.

This also explains why they haven't been willing to take a strong stand following up on Bruen. I'll bet there's a lot of second-guessing going on among the Justices.

 

[GEM]

Another analysis of Bruen:

Why the Nation’s Gun Laws Are in Chaos

Judges clash over history a year after Supreme Court upended how courts decide Second Amendment cases—‘”The whole thing puzzles me.”

www.wsj.com

The Supreme Court last summer sought to clarify its expansive reading of the Second Amendment. Instead, it set off chaos.

The decision in New York State Rifle and Pistol Association v. Bruen decreed that gun-control laws of today must have a clear forerunner in weapons regulations around the time of the nation’s infancy, regardless of the modern public-safety rationale behind them.

The result: Hundreds of gun cases litigated in recent months have become a free-for-all, with lower courts conflicted or confounded about how and where to draw limits on gun rights.
“There’s all this picking and choosing of historical evidence. ‘This is too early. This is too late. Too small, too big,’” Judge Gerard Lynch of the Second U.S. Circuit Court of Appeals said during a recent argument about a new law in New York that prohibits guns in sensitive places like parks, museums and bars. “The whole thing puzzles me.”
In that case, the right of licensed handgun owners to carry weapons into bars and theaters could hinge on 19th-century statutes that barred drunks from carrying firearms, and outlawed guns and butcher knives in social parties attended by ladies.

So carry is banned functionally across NYS and our rights hinge on nonsense like this. Bruen was a not a success on many levels for NYS and some of the cases are not well received - i.e. - domestic abusers of suspect carriers. Like Heller, pointing out problems is taken as heresy by some with excuses such as we have to wait decades for all the cases to be resolved. Oh, well - I don't have decades.

 

[AlexanderA]

It's becoming more and more evident that the six Bruen justices don't agree among themselves on where to go from here. That's why we haven't seen any followup cases taken.

 

[Boom Vang]

The Bruen case was decided only a year ago. And every SCOTUS decision is thereafter applied to the facts of a particular case by lower courts. Challenges based on any decision of SCOTUS take years to get back there, if at all. Such is our legal system.

If you were expecting SCOTUS, in a single case of first impression, to get into the many weeds of exactly where, who and under which circumstances the RKBA outside the home applied to all persons in all circumstances - an impossibly monumental task - then I see your disappointment. But that's not how they roll, and that is not how jurispurisdence in the United States generally develops. SCOTUS decides first principles, and the lower courts apply them. When the lower courts get it wrong enough, SCOTUS intervenes to correct them. And SCOTUS has done this twice since Heller, and given the Court's make-up, I'm sure they will do so again on multipe occasions.

We already see the order of protection case under Title 18 USC 922 being taken up by SCOTUS. Despite all the hand-wringing from some quarters, my expectation is that SCOTUS will decide what lawful court order can that deny fundamental constitutional rights. Such clarity is a good thing, and my intuition is that their opinion will be a precursor death knell for the various "red flag laws" that delay or deny due process.

The fact that Alito and Thomas made the rare move of commenting on a procedural decision by the Court - on a preliminary injunction in a subsequent federal case in New York based on Bruen - should indicate the importance the RKBA issue has at SCOTUS. They have taken notice of the legislative responses of anti-RKBA states like New York, and undoubtedly are going to rule when the case presents itself according to the procedural timeline. It is unfortunately not instant gratification.

If one looks at the state of the RKBA now, versus 20 years ago, the improvement is dramatic, and much of that is due to SCOTUS rulings in Heller and it's progeny.

PS. The Wall Street Journal is no friend of the RKBA, and their reporting is regularly skewed that way. Even more ludicrous is their reporter quoting Judge Gerald Lynch, a member of the Second Circuit, who is also no friend of the RKBA, nor of the SCOTUS decisions that the 2A is an individual right. The Second Circuit stayed a federal district court preliminary injunction in New York State, which had restored the RKBA there, and did so with neither comment nor a date for an appeal hearing. It was not until after Alito and Thomas commented on this anomaly did the 2d Circuit schedule oral arguments. A 3-judge panel, including Lynch, heard oral arguments in March, 2023, where again he was openly disdainful of the SCOTUS decisions on the RKBA. Interesting that he comments to a reporter on a legal issue that is currently before him for decision. Which we are still waiting for....

 

[toivo]

If one looks at the state of the RKBA now, versus 20 years ago, the improvement is dramatic, and much of that is due to SCOTUS rulings in Heller and it's progeny.

Unless you live in NY State -- here the deterioration is dramatic. My permit used to be good for life, and the only places carry was banned were those stipulated by federal law: courthouses, schools, etc. Now my permit must be renewed every three years, and carry is banned virtually everywhere except my home, public roads, and private property where carry is explicitly permitted by signage -- which essentially means gun stores and Tractor Supply.

 

[GEM]

Exaxctly, the 'this is procedure, wait for years' prose is just ridiculous if your orientation is results rather than legal dominance games.

Heller did not stop one new state AWB or mag ban. It was supposed to make having a gun easier at home. Oh, wait - Bruen was filed because it was not easy to get a permit in NYS. Ownership was denied in many counties in NYS and the procedure was onerous (if doable) in others. So, Heller did little practically.

Bruen was supposed to be aimed at fixing the NYS laws. It did remove one provision but a predictable reply was the CCIA (they were warned about that) and similar laws are being proposed or passed.

Next, TROs were issued because lower court judges saw such and new AWBs were unconstitutional in their opinion. Antigun circuits blocked them. This was appeal to Scotus (who had the power to grant such). They didn't because of the same dominance crap we see hear, promoted as the glory of the system! Or they didn't have the vote. That's the point. A right was denied and instead of the state being forced to defend the denial of the right, Scotus chose to make the citizen, yet again, defend why they should have the right the state denied.

It's that simple, so spare us the glory of procedure and the need for dominance as Alito and Thomas cast their awesome stink on the lower courts and we wait for years to see if any comes from that. Watch other states adopt the same strategy.

If the system necessitates years to clarify our basic rights, then Scotus needs to fix its mindset. Fast track the emergency appeals. Granting those will be a clearer message than "I got my eye on you". The circuit judges don't care.

 

[denton]

Exaxctly, the 'this is procedure, wait for years' prose is just ridiculous if your orientation is results rather than legal dominance games.

Heller did not stop one new state AWB or mag ban. It was supposed to make having a gun easier at home. Oh, wait - Bruen was filed because it was not easy to get a permit in NYS. Ownership was denied in many counties in NYS and the procedure was onerous (if doable) in others. So, Heller did little practically.

Bruen was supposed to be aimed at fixing the NYS laws. It did remove one provision but a predictable reply was the CCIA (they were warned about that) and similar laws are being proposed or passed.

Next, TROs were issued because lower court judges saw such and new AWBs were unconstitutional in their opinion. Antigun circuits blocked them. This was appeal to Scotus (who had the power to grant such). They didn't because of the same dominance crap we see hear, promoted as the glory of the system! Or they didn't have the vote. That's the point. A right was denied and instead of the state being forced to defend the denial of the right, Scotus chose to make the citizen, yet again, defend why they should have the right the state denied.

It's that simple, so spare us the glory of procedure and the need for dominance as Alito and Thomas cast their awesome stink on the lower courts and we wait for years to see if any comes from that. Watch other states adopt the same strategy.

If the system necessitates years to clarify our basic rights, then Scotus needs to fix its mindset. Fast track the emergency appeals. Granting those will be a clearer message than "I got my eye on you". The circuit judges don't care.

As refreshing as it would be to have SCOTUS firmly and quickly demolish so many infringements, the system just doesn't work that way. The theory is that it is better to endure some wrong decisions for a while than it is to have a rapidly shifting legal framework. The legal system is deliberately designed to be ponderously slow and thorough.

It took decades for 1A law to be worked out and settled, and it isn't likely to be faster for 2A.

 

[GEM]

I don't have decades. My rights were removed so this procedural call to the system is just BS. A rapidly shifting framework for the BOR - how long ago was that written. This is just what I said, excuses and pie in the sky wait for the procedural blather to clear.

While this is out of left field, these 'wait for it' analyses remind me of the the politicians and generals saying wait for it in Viet Nam, Iraq (GW II) and Afghanistan. Just wait and it will be a wonderful victory.

 

[natman]

There isn't any real confusion in the lower courts. Heller made it clear that interest balancing was off the table:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The 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. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. DC v Heller pages 62-63

Liberal courts ignored it. Bruen finally got their attention. They stopped ignoring it - by deliberately doing the exact opposite of what Bruen dictated. All this deliberate flaunting of the rule of law, all this "confusion" is merely a way to stall in the hope that the composition of SCOTUS will change.

 

[D.B. Cooper]

If you were expecting SCOTUS, in a single case of first impression, to get into the many weeds of exactly where, who and under which circumstances the RKBA outside the home applied to all persons in all circumstances - an impossibly monumental task - then I see your disappointment.

The disappointment stems from this: "...text and tradition of gun laws at the founding of the nation..." It is extremely clear and extremely simple, yet the SC won't back it up, and the anti gun legislatures know they can flaunt it and skirt it and ignore it.

Of all of these anti gun laws since Bruen: NY CCIA, ATF's brace ruling and frame/receiver ruling, etc etc etc, not a single one has any historical or Constitutional analogue that would pass the Bruen test, yet here we are.

 

[GEM]

Scotus could have that under the words of the 2nd Amendment:

No location, except private residences, can be banned for licensed carriers unless there is a technical safety reason or defined specific risk such as guns in the MRI room. medical procedures where you do not have control of the gun, the unique circumstances of an airliner or courtroom, prison or the like. Libraries, parks, schools, houses of worships, government buildings, post offices, businesses open to the public cannot be banned on vague appeals to public safety.

This trumps private property bleats for businesses open to the public. You don't have to be open. Do something else.

It is that easy. Making excuses for Scotus, is not acceptable. We need to see them as they are - not truly concerned with the pragmatic outcomes of their 'scholarly' principles like Bruen. Think of how it would be implemented and challenged before it is put forward. If challenged, accept emergency appeals and not go yachting.

 

[LiveLife]

CCIA response to Bruen screwed the state for years and Scotus hasn't been any help for relief as of yet.

Since the Second Amendment is not a "second class right", same should apply for Second Amendment in terms of permanent enforcement that happened for First Amendment. Right?

So what happened to Supreme Court First Amendment rulings before permanent enforcement was applied by federal/state laws?

States kept violating Supreme Court's First Amendment rulings by writing and passing unconstitutional laws and getting sued, only to lose at the Supreme Court - https://en.wikipedia.org/wiki/List_...eme_Court_cases_involving_the_First_Amendment

It took many years and decades for some aspects of First Amendment but ultimately, permanent enforcement was applied.

And since the Second Amendment is not a "second class right", Supreme Court will keep ruling various states' unconstitutional laws and executive agencies' regulations in violation of Second Amendment until permanent enforcement is applied.

Bruen ruling is not the end but part of a series of Supreme Court rulings toward permanent enforcement:

• Heller ruling protected individual right to keep and bear "modern" magazine fed semi-auto firearms at home unconnected with service in a militia
• Bruen ruling protected individual right to carry outside of home and changed test for Second Amendment cases mandating "text and history" tradition approach to regulations dating back to ratification of Bill of Rights
• West Virginia v EPA ruling found regulation is invalid unless Congress specifically authorized
• Now Supreme Court agreed to hear US v Rahimi in the fall ... and already there's rumbling of justice Thomas' opinion had made it very difficult for prosecutors to defend modern gun laws because there were no such laws in the 18th century
• US District Judge Carleton Reeves, an Obama appointee, said his duty was to follow the law ... "The standard announced by the Supreme Court in Bruen is the law of the land. It must be enforced. Under that standard, the government has failed to meet its burden," he wrote in U.S. vs. Bullock. "The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868 — the years the Second and 14th Amendments were ratified." - https://www.thehighroad.org/index.p...-v-bruen-decision.913941/page-3#post-12683741
• There are several Second Amendment cases headed right to the Supreme Court such as Miller v Bonta, Duncan v Bonta, Bianchi v Frosh, Harrel v Raoul, etc. that deals with types of firearm ban including magazine that various courts already ruled as "arms" protected under the Second Amendment.
• In the oral arguments made for Harrel v Raoul in the 7th Circuit (IL AW ban case), attorney argues that popular AR15 is linear [modernized] descendant of popular firearms used in colonial days that were "in common use" and used printing press and [modernized computer/tablet] ipad as linear descendant example. Interestingly judge asked if the Winchester lever action is protected under the Second Amendment and points out that the lever action was not the same as muzzle loading muskets colonials used but the lever action was in common use and was the AR15 of the pioneering days (Very good point) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-13#post-12669295

So I anticipate continued resistance by the states and executive agencies but just as Supreme Court kept ruling for First Amendment and permanent enforcement applied by federal/state laws, Supreme Court will keep ruling for Second Amendment until permanent enforcement is applied because the Second Amendment is not a "second class right".

 

[Ru4real]

Fortunately, the Sheriff’s are conscientious objectors in many NY counties. Refusal to enforce.

 

[LiveLife]

And 5th Circuit just ruled citing Bruen ruling and I do believe post-Bruen rulings mandating "text and history" will continue - https://apnews.com/article/gun-ban-...hunter-biden-f26f8b7488615785602003932efd881a

"The appeals court cited the 2022 U.S. Supreme Court decision known as New York State Rifle & Pistol Association v. Bruen, which said gun laws must have strong historical roots — a finding that led to challenges of many of the nation’s gun laws.​

​

'Our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage,' the three-judge panel for the Fifth Circuit Court of Appeals in New Orleans wrote in Wednesday’s ruling."​

 

[D.B. Cooper]

...Libraries, parks, schools, houses of worships, government buildings, post offices, businesses open to the public cannot be banned on vague appeals to public safety...

I seem to recall, and correct me if I'm wrong-I'd love to be wrong here, that in both Heller and Bruen the court reinforced the idea that there are some places (I think the court called them "sensitive places") wherein the 2nd Amendment can be abrogated, and schools were specifically cited as an example of such a place. I really wish GOA, FPC, et al would really get on the band wagon here and start challenging the Federal Schools Gun Free Zone Act; it is a blatant violation of the principles set forth in Bruen.

 

[toivo]

I seem to recall, and correct me if I'm wrong-I'd love to be wrong here, that in both Heller and Bruen the court reinforced the idea that there are some places (I think the court called them "sensitive places") wherein the 2nd Amendment can be abrogated, and schools were specifically cited as an example of such a place.

The NY "CCIA" goes far, far beyond that. Acc'ding to the new laws in NY, virtually everywhere is a sensitive place by default.

 

[D.B. Cooper]

The NY "CCIA" goes far, far beyond that. Acc'ding to the new laws in NY, virtually everywhere is a sensitive place by default.

And I also seem to recall the Bruen decision specifically stating that states could not simply make wide swatch of public areas a sensitive space, yet, here we are.

This is what I meant when I said it seems that the Court has no interest in enforcing their ruling in Bruen. If they did, they would take an emergency appeal from GOA, FPC, et al and smack down CCIA and a bunch of other stuff. Think about how, in, I think, 1955-a year after the Brown v Board of Ed decision, the NAACP came back to the Court because states were resisting desegregation, and the Court added "all possible speed" to its order. That Court was interested in enforcing its ruling; this court is not.

 

[GEM]

I agree with your analysis. We see too many 'procedural apologists' who think the Court will get to gun rights eventually. They do not understand that the procedural slight of hand is not to follow correct procedure but is used to implement priorities and/or reflect internal debates.

Nor do they realize that the antigun folks basically out thought Alito and Thomas. There was a big deal made of the statement about Manhattan. It was rendered moot by not banning geography but by function. Making all business locales banned as the default and required a progun sign made carry practically useless. The storage in the car requirements - parking lots are banned, locked glove compartments don't work, chained lockboxes made just leaving your gun in the car (never a great idea) almost useless. Added they they bought into sensitive locations that made no sense - houses or worship, libraries, parks - etc. For God and the children? That totally destroyed any benefit of Bruen.

The procedural apologists think that not supporting the reasoned TROs (based on lower courts correctly seeing the law was unconstitutional) is some brilliant ploy to make the circuits 'do their job' or scold them. Ridiculous. There was something else in play.

AWBs may appeal to some of them - Kavanaugh had a nut outside his house with one. Roberts? Big point - Heller did nothing to stop the increasing state ban. Heller language and historical precedent are not clear enough to stop them unless Scotus truly acted. They are not doing so. So folks can talk about decades of civil rights and 1A legalisms. Good for you. They all support denial of rights that could be fixed. Thomas is on shaky grounds - age, and suspect behavior. He goes - new game. Heller and Bruen could be overturned or weakened. Stare Decisis is dead now.

PS:

Illinois Supreme Court upholds state's ban on semiautomatic weapons

The Illinois Supreme Court has upheld the state's ban on the sale or possession of the type of semiautomatic weapons used in hundreds of mass killings nationally.

buffalonews.com

SPRINGFIELD, Ill. — The Illinois Supreme Court has upheld the state's ban on the sale or possession of the type of semiautomatic weapons used in hundreds of mass killings nationally.
In a 4-3 decision Friday, the high court found that the Protect Our Communities Act does not violate the federal Constitution's guarantee of equal protection of the law nor the state constitution's bar on special legislation.
The court also decreed that state Rep. Dan Caulkins, a Decatur Republican, and like-minded gun-owners who brought the lawsuit had earlier waived their claims that the law infringes on the Second Amendment to own firearms and could not raise it before the Supreme Court.

So much for Heller and Bruen. Wait the remanded cases or futures cases will kick in in 3002 AD when powder firearms are the stone spears of that age.

 

[GEM]

Another take on why 'history' might have been a wrong turn by Clarence and Thomas:

America’s Original Gun Control

Early in our history, firearms laws were everywhere.

www.theatlantic.com

By a antigunner but shows how history will be mined to use Bruen against gun rights.

 

[JN01]

Thomas is on shaky grounds - age, and suspect behavior. He goes - new game. Heller and Bruen could be overturned or weakened. Stare Decisis is dead now.

Alright then. Suppose SCOTUS fulfills your dreams with the next 2A appeal case and declares every single gun control law in the country to be unconstitutional.

When the court composition changes to majority leftist and when hearing a case regarding one aspect of gun possession decides that the Second Amendment only applies to the National Guard, would it be OK for them at that point to negate all laws allowing private arms in the interest of public safety?

If you are so worried about what a future SCOTUS will do, then it doesn’t really matter what the current court does.

Do you think that without Heller and Bruen the gun control radicals in NY wouldn’t be trying to gut gun owners rights?

 

[JN01]

Another take on why 'history' might have been a wrong turn by Clarence and Thomas:

America’s Original Gun Control

Early in our history, firearms laws were everywhere.

www.theatlantic.com

By a antigunner but shows how history will be mined to use Bruen against gun rights.

If the original intent and history aren’t used to determine the meaning of the amendments, what is? Whatever the justices want it to mean in today’s society?
Much of the history that the gun control crowd is trying to bring up has already been rejected in dicta by SCOTUS and other courts. British laws, racially discriminating laws, and laws after the founding era are not relevant. Some of the others they bring up (surety bonds, fire prevention ordinance) are not analogous to the laws they are trying to uphold.

 

[GEM]

Well then, the current state is ok with you as Scotus refused the TROs and remanded rather than use Bruen to decided the 4 cases in our favor.

Having a strong set of unambiguous decisions might have been better. It is a matter of opinion whether history is pro or con. If you think it does, it does. If you think it doesn't, you can find history that supports controls. You might think it was decided but that is just the words of the current set of justices. Enough judges and justices think it doesn't that makes this criteria problematic. It is a true believer rule.

Clear statements on locales, AWBs might have helped but we've never seen them. That brings us around to already stated analysis that some of the pro folks are so pro.

It's funny that it is a critique that I want (and others) to want Scotus pro folks to act with alacrity and clarity. What a sin! Oh, no - years of proceedings and ambiguity is the glory of our democracy. Much better than having your rights. The NYS new laws were response to Bruen and other states are adopting them. That's what happened. Clear statement that cut out the vague sensitive places or even mentioning somewhere were carry should be allowed would have helped.

Let's cut to the chase, Scotus missed the opt in process. Lower courts found it unconsitutional. The anti circuit didn't. Scotus had to power to support the TROs but chose not to because of procedural, dominance crap. They were ok with rights denied while the process proceeded. They could have had the process proceed with rights restored as the lower courts stated. If that makes Thomas and Alito and the rest acceptable - well, it doesn't for me.

 

[AlexanderA]

It seems clear that some of the "pro" Justices are having second thoughts on Bruen. We may look back on the day Bruen was decided as the high point for the 2nd Amendment.