The US Supreme Court’s recent decision in New York State Rifle & Pistol Association vs. Bruen sent shock waves through the gun rights and gun control camps. The Bruen Decision essentially invalidated New York State’s “May Issue” regime regarding concealed carry permits.
New York previously required applicants to show a “special need” for a permit. Self-defense did not qualify. The Supreme Court ruled against the special need requirement, making “May Issue” states into “Shall Issue” states. Those states have nominally complied with Bruen but several have moved to violate the spirit of the decision, if not the letter.
Anti-Gun States Push Back Against Bruen
New York’s Temper Tantrum
As usual, New York is leading the stampede to trample on gun owners’ rights. New York Governor Kathy Hochul raged against the decision and called the New York State Assembly into Extraordinary Session to retaliate. The Assembly rushed through a spate of bills seeking loopholes in Bruen, especially the decision’s allowance for “sensitive areas” where carry can be prohibited.
Pretty much the entire state is now a “sensitive area,” including all private property unless the owner specifically posts it as being gun friendly. New York also requires applicants to show “good moral character,” which is just as subjective as the previously required “special need.”
Each applicant must submit to state inspection of the last three years of social media posts, undergo sixteen hours of training, including two hours of range time, and meet personally with a local judge, who must approve the application.
Anyone with a brain knows that judges don’t have time to meet with every applicant, nor will they prioritize those meetings. Sixteen hours of training will be prohibitive for most people, not to mention the ammo expense for two hours on the range. Even the New York State Sheriff’s Association says the new laws are Unconstitutional and unworkable.
Not So Fast…
Hochul’s tantrum has made gun laws in New York even more draconian than before, and purposely so. The Governor and State Assembly believe that making gun ownership as difficult as possible will accomplish their goals. But the wannabe Queen’s overreaction has also opened the state to a rash of lawsuits and gun rights advocates are firing back.
Gun Owners of America (GOA) has filed suit on behalf of New York resident Ivan Antonyuk. Ivan Antonyuk vs. Bruen challenges not only the Second Amendment aspects of the new laws but also seeks relief under the First Amendment. The social media requirement will almost certainly be misused to deny permits to law-abiding citizens. A subjective view of innocuous posts taken out of context clearly violates freedom of speech. And does anyone doubt that one word criticizing the administration, or the new laws, will be grounds for denial?
Firearms Policy Coalition (FPC) has also filed suit against New York in Vanchoff vs. James. A key part of Bruen is that courts may no longer use intermediate scrutiny or a two-tiered approach to gun laws. That means that courts cannot defer to legislators’ assertions that their actions serve some nebulous “higher good” like public safety. That second step is totally subjective and is “one step too many.”
Gun laws must adhere to the “text, history, and traditions” of the United States. In other words, the Second Amendment is back in style. Bruen requires the government to demonstrate a deep historical precedent for any gun laws. If there is no such history, the command clause of the Second Amendment, “the right of the people to keep and bear arms, shall not be infringed,” must be heeded.
That’s why you hear New York politicians crying about how their carry law has been around since 1911. The problem is that such laws are not, and have never been, widespread. It ain’t just about you, New York. The Second Amendment applies to the whole country. The “text, history, and traditions” concept features prominently in both suits.
What about other anti-gun states?
New York is the biggest crybaby, but a few other states are digging their heels in too. In the interest of space, here’s a brief look at who’s doing what:
California
You know California isn’t backing down. Like New York, the Golden State says the “good moral character” clause of their permitting process still applies, despite removing their special need requirement. It will no doubt be used to deny as many applications as possible. GOA, FPC, the 2nd Amendment Foundation, the California Rifle and Pistol Association, and Gun Owners of California have legal challenges in place or in the works.
Governor Gavin Newsome petulantly touted a new California law allowing victims of “gun violence” to sue gun manufacturers when their products are misused by criminals, citing a “public nuisance law.” Never mind that federal law prohibits it. Look for a legal challenge there too.
Federal Judge Roger Benitez (peace be upon him) famously ruled California’s “assault weapons” ban Unconstitutional in Miller vs. Bonta. The state secured a stay to keep the law in place. The FPC has filed a motion to remove the stay, citing Bruen. Either way, the 9th Circuit has vacated its ruling in favor of the state and remanded the case back to federal district court after the Bruen Decision.
Delaware
Joe Biden’s home state is trying to make the old man proud by leaping to pass a flurry of anti-gun bills in Bruen’s wake. These include an “assault weapons” ban and raising the purchase age to 21. They oddly limited magazine capacity to 17 rounds. Cops and retired cops are exempt, as usual. Delaware also banned “devices designed to increase the firing rate” of a firearm, meaning bump stocks and certain triggers. Finally, they’ve added a “public nuisance” provision like California. New York has that too. Lawsuits inbound.
Hawaii
The Aloha State is one of the most rabidly anti-gun places in the country. Young vs. Hawaii, prompted by the state denying carry permits, was appealed to the Supreme Court but has now been remanded to the 9th Circuit Court of Appeals. The 9th Circuit must reconsider the verdict post-Bruen.
Maryland
Bianchi vs. Frosh, a challenge to Maryland’s “assault weapons” ban, had been remanded to the 4th Circuit Court of Appeals in light of the Bruen Decision.
Maryland has dropped its special need requirement for carry permits.
Massachusetts
Notoriously anti-gun Attorney General Maura Healy directed permitting authorities, usually police chiefs, to discontinue the special need requirement for carry permits.
She did, however, say that the “suitability” clause is still in effect. “Suitability” is no different from “good moral character.” the Gun Owners Action League (GOAL) has already challenged it.
A legal challenge to the state’s “assault weapons” ban is coming.
New Jersey
Another state that never met a gun control law it didn’t like, New Jersey quickly introduced new bills making their already onerous gun laws worse. The new additions include an ammo registration scheme requiring dealers to record ammo purchases as they do with guns, a “ghost gun” ban, and a microstamping requirement. Never mind microstamping technology doesn’t exist.
New Jersey also wants to require training for gun owners like New York and they’ve reclassified .50 caliber firearms and ammunition as “destructive devices,” making them illegal. They also added a “public nuisance” law for good measure.
On a brighter note, New Jersey Rifle and Pistol Clubs vs. Bruck, which challenges New Jersey’s magazine restrictions, was remanded to the 3rd Circuit Court of Appeals following Bruen. The FPC is challenging the New Jersey “assault weapons” ban in Cheeseman vs. Platkin. New Jersey also removed its special need requirement for carry permits, while noting it’s been around since 1905. New Jersey, meet New York. Wah.
Washington, D.C.: Our old friend Dick Heller is back. DC doesn’t allow carrying on the Metro public transit system, so he’s suing them again, citing “text, history, and tradition” from Bruen. You go, Dick Heller.
Other Notable Bruen-Influenced Legal Proceedings
CRS Firearms’ Matt Hoover is battling the ATF over his possessing an auto keycard etched with a certain design the agency frowns upon. Never mind they told him it wasn’t illegal before changing their minds. Hoover’s attorneys filed a new motion after Bruen that may be a game changer.
GOA is challenging the ATF’s frame and receiver rule (the “ghost gun” thing) in a North Dakota court.
The Chicago ban on laser sights is being challenged in a federal district court.
The Bruen Decision is a Big Deal
A few weeks ago, I wrote that Bruen was a narrow decision that was a nice win. I didn’t really think it would do much other than force “May Issue” states to become “Shall Issue” states. Shows how much I know.
I didn’t account for the power of Justice Clarence Thomas invoking the “text, history, and traditions” of the United States. That clause has clearly opened the floodgates to a torrent of challenges to the convoluted gun laws across the country. This stuff will go on for years, maybe decades.
Bruen creates an opportunity to go after the National Firearms Act of 1934 (NFA). It may even apply to things we haven’t thought of yet. It looks to be a true landmark decision emphatically stating the Second Amendment’s protections over the entire nation.
I support states’ rights as much as anyone. But not where the Constitution specifically asserts its authority. The Tenth Amendment reserves power for the states only if that power is not explicitly claimed by the Constitution. The Second Amendment does just that. “The right of the people to keep and bear arms, shall not be infringed” isn’t a request, nor is it a guideline. It means what it says, no matter how much Kathy Hochul, Gavin Newsome, and Joe Biden wish otherwise.
