It’s a topic that is open to debate and much can be said about it. N.Y. State Rifle & Pistol Ass’n v. Bruen opinion, and who was right. For now though, let me turn my attention to the more practical question: Bruen mean for gun laws going forward?
Below is my first attempt at summarizing what I see based upon Justice Thomas’s majority opinion. This was joint by Chief Justice Roberts with Justices Alito Gorsuch and Kavanaugh.
[1.]You have the right of keeping and bearing arms in general Includes the right to keep arms in self-defense at all times, indoors and out.
[2.]You have the right Can be restricted to the extent that history has a tradition of limitation—especially from shortly before and around the time of the Framing, but also perhaps from up to the late 19th century. “[W]The Constitution presumes to protect an individual’s conduct if the Second Amendment’s plain language covers it. To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
The history of the country must also be informed by this. Instead of a small number of exceptions, the aggregate decision of several jurisdictions is more important than the sum of their decisions.. For example, it concludes that the Court doubts three colonial rules could be sufficient to establish a history of public-carry regulations. It later stated that it would not assign disproportionate weight “to a single statute of a state and two decisions by state-courts.” In regard to Territories regulations, it states that “we won’t base our interpretations on a few temporary territorial laws, which were passed nearly 100 years after the Second Amendment was adopted. They governed less then 1% of American’s population and are also ‘contradictory’.[t]The overwhelming weight of historical evidence that is more recent.”
However, some analogy is possible beyond what restrictions were enacted in the previous. Analogies to past decisions and practices are also commonplace in other judicial decisionsmaking and in the interpretation of constitutional provisions.
The Constitution’s meaning can be and must apply in circumstances other than those that the Founding Fathers anticipated. See, e.g., United States v. Jones(2012). Holding that the installation of a tracker device was “a physical intrusion.” [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”)….
History is used to identify modern “arms”, and history also guides us in our analysis of regulations today that are not possible at the time they were created. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. As with all analogy, it is necessary to determine if the regulations in question are comparable. …
Analogical reasoning in the Second Amendment is not a regulation straightjacket. Courts should “not uphold any modern law even remotely similar to a historical analog,” as it “risks.”[s]Our ancestors would not have supported outliers.” Analogical reasoning however, requires the government to identify an established and representative historical parallel, and not a historical sibling. Although a current regulation may not have historical precedents, it might still be comparable enough to pass constitutional test.
[3.]You are right Regulations that only place a minimal burden on law-abiding citizens’ ability to defend themselves can limit their rights.. “Heller McDonald point toward at least two metrics” for evaluating regulations: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense…. [W]Analogical inquiries should consider the impact of historical and modern regulations on the right for armed self-defense. Nondiscretionary license requirements for carry permits, such as for example, are constitutional, provided that they don’t prove too burdensome or are justifiable by the goal of limiting gun ownership for “law-abiding, responsible” citizens.
[N]Nothing in this analysis should be taken to indicate the constitutionality of the 43 State’s “shall issue” licensing systems. Under which, “a general desire to self-defense suffices to get a license,” [permit].” These licensing rules do not require that applicants show an unusual need for armed defense. They do not prevent law-abiding citizens from exercising their Second Amendment rights to carry.
It appears, instead, that the shall-issue rules, which require applicants to pass a firearms safety class or undergo background checks, are intended to make sure that all persons who are authorized to carry arms within the jurisdiction are law-abiding and responsible citizens. And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials ….
We recognize that any permit scheme could be used to abusive ends. However, constitutional challenges can still be made to shall-issue systems where there are long wait times for license applications to process or high fees to deny citizens the right to carry publically.
Justice Kavanaugh and Chief Justice Roberts emphasized this point in an concurring opinion.
[T]he Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense…. The shall-issue regulations may include fingerprinting, background checks, mental health records checks, training on firearms handling, as well as laws concerning the use force. New York’s may system does not permit open-ended licenses. The shall-issue systems do not give licensing officials any additional rights. According to petitioners, the constitutionally authorized shall-issue licensing programs are subject to challenge in case a shall issue licensing program does not function in a particular way in practice.
[4.]However, if the law significantly burdens the rights without sufficient historical support it is invalid. It cannot then be upheld by “intermediate scrutiny,” “strict scrutiny”, or any similar tests. It cannot simply state that the government has an interest in protecting armed crime and other injuries, but then significantly burden that right. The Court believes that such an approach might lead to the end of this right.
This Court has learned something from the past decade of Second Amendment litigation. Federal courts that are charged with difficult empirical decisions regarding firearm regulations, under the umbrella of “intermediate scrutiny”, often defer to legislative determinations. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. Second Amendment is “the very result of interest balancing done by the people”. It “surely elevates over all other interests” the right for law-abiding citizens to carry arms in self-defense. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.
[5.]The Court marked that particular types of restriction are constitutional in this instance.
[a.] There are restrictions on the transport of sensitive items such as school and government buildings.
Take, for instance, Heller“Longstanding” firearms laws prohibiting carrying guns in public places like schools and government buildings. Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. Therefore, we can conclude that it was settled that these were “sensitive areas” in which arms carrying is prohibited as per the Second Amendment. Courts can also use analogies with historical regulations of “sensitive areas” to decide whether modern regulations forbidding firearms carry in similar sensitive locations are constitutionally permitted.
[b.] Interdiction of concealed carry But only IfOpen carry is permitted:“The evidence that antebellum America has provided historical proof does show this.” The way of public carry was subject to reasonable regulation…. States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.” My experience is that the current jurisdictions (California and Hawaii, Massachusetts. New Jersey. New York., New York., D.C.) that don’t currently have general carrying laws would choose to permit concealed carry over open carry if forced to. However, in theory I think such a jurisdiction would allow only open carry and follow many of the 19th-century models in other states. A jurisdiction might ban open carry, but allow concealed carry, as Florida does.
[c.]We have already mentioned this: Nondiscretionary licensing restrictionsThey are acceptable, except if there is a “long wait time in processing license applications, exorbitant fees, or any other substantial burden on the ability of law-abiding gun owner to get a licence.” You can also inquire if waiting periods would be allowed for guns to purchase, as well as for carrying licenses. The Court has not yet decided on this question.
[d.] Restrictions on firearm ownership for felons or the mentally ill This point was reiterated in the Kavanaugh/Roberts concurrency. Heller Majority and the McDonald Lead opinion:[N]”Nothing should be taken in our view to doubt longstanding prohibitions of the possession firearms by felons, the mentally ill.” While the Court’s reasoning is not entirely clear, it seems that the Court believes gun ownership has been restricted to responsible law-abiding citizens. (Ask the Court whether it means “citizens” in this context citizens of the United States. Or just all private individuals.
[e.] Restrictions on machineguns and other “dangerous and unusual” weapons—which probably means unusually dangerous weapons: Also, taken from Kavanaugh/Roberts consent, I’m quoting Heller And McDonald: “[T]The only weapons that were protected were the ones in use at that time. This limitation seems to be supported by historical traditions that prohibit the carriage of unusual and dangerous weapons.
[f.] “[L]”Aws to impose conditions and qualifications for the commercial sale Based on Kavanaugh/Roberts concur, HellerPlease see the following: McDonald). However, it is possible that the laws could be considered unconstitutional if they significantly restrict the right of individuals to own guns rather than regulating the behaviour of commercial sellers.
[6.] Much of course remains unresolved—as is common for any foundational Supreme Court decision (for instance, the Court’s early free speech decisions, which left much to be decided in future cases). Particularly
Is the age at which the right comes into effect (the average age at which the U.S. is majority) 18 or 21? The courts may decide how to interpret some late 19th century laws that restricted the rights of under-21 year-olds regarding certain guns.
Bars, stores selling alcohol or restaurants serving alcohol are all possible places. Most states prohibit gun ownership in some form or another, though I am not certain how far back that history goes.
This all raises questions about “red flag” laws. This passage discusses historical precedents that restrict gun ownership for people who are found to be at heightened risk by their conduct. However, such statutes did not require surrendering guns but only a monetary bail.
Massachusetts passed an 1836 law that allowed anyone to carry a knife, gun, sword or pistol without fear or reasonable cause of injury. [Some states had similar rules. -EV] …
[T]He surety statutes PresumedThe right of public carry was granted to individuals only when another person had “reasonable reason to fear injury or breach of peace.” William Rawle explained this in an important article [1829]Treatise states that an individual’s possession of arms is “sufficient cause” to warrant him to guarantee the peace if he “attended to circumstances giving just cause to fear that they will be used illegally.” But even if that was the case, the surety law did not apply. InterdictionPublic carry is allowed in places frequented daily by the community. Instead, the accused arm-bearer could continue to carry without any penalty so long “post[ed] money that would be forfeited if He breached the peace or injured others—a requirement from which he was exempt if heSelf-defense is essential
Contrary to New York’s, there was no need for a demonstration of special needs. AfterAn individual could reasonably be accused of intending injure others or to breach the peace. And, even then, proving special need simply avoided a fee rather than a ban….
“The Court observed that these laws weren’t strictly enforced.[O]ne scholar who canvassed 19th-century newspapers—which routinely reported on local judicial matters—found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement.”
In any event, this is my overall impression of the subject; I would love to hear from others.
The Courts’ Role in evaluating Gun Regulations Bruen
It’s a topic that is open to debate and much can be said about it. Bruen opinion, and who was right. For now though, let me turn my attention to the more practical question: Bruen mean for gun laws going forward?
Below is my first attempt at summarizing what I see based upon Justice Thomas’s majority opinion. This was joint by Chief Justice Roberts with Justices Alito Gorsuch and Kavanaugh.
[1.]You have the right of keeping and bearing arms in general Includes the right to keep arms in self-defense at all times, indoors and out.
[2.]You have the right Can be restricted to the extent that history has a tradition of limitation—especially from shortly before and around the time of the Framing, but also perhaps from up to the late 19th century. “[W]The Constitution presumes to protect an individual’s conduct if the Second Amendment’s plain language covers it. To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
The history of the country must also be informed by this. Instead of a small number of exceptions, the aggregate decision of several jurisdictions is more important than the sum of their decisions.. For example, it concludes that the Court doubts three colonial rules could be sufficient to establish a history of public-carry regulations. It later stated that it would not assign disproportionate weight “to a single statute of a state and two decisions by state-courts.” For regulations in Territories: “We will not base our interpretation on only a handful temporary territorial laws which were adopted nearly one century after the Second Amendment became effective. These laws governed less that 1% American citizens, and they are also contradictory.”[t]The overwhelming weight of historical evidence that is more recent.”
However, some analogy is possible beyond what restrictions were enacted in the previous. Analogies to past decisions and practices are also commonplace in other judicial decisionmaking.
The Constitution’s meaning can be and must apply in circumstances other than those that the Founding Fathers anticipated. See, e.g., United States v. Jones(2012). Holding that the installation of a tracker device was “a physical intrusion.” [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”)….
History is used to identify modern “arms”, and history also guides us in our analysis of regulations today that are not possible at the time they were created. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. As with all analogy, it is necessary to determine if the regulations in question are comparable. …
Analogical reasoning in the Second Amendment is not a regulation straightjacket. One, courts shouldn’t “uphold any modern law that even remotely looks like a historical analogue,” since it is “risky.”[s]Our ancestors would not have supported outliers.” Analogical reasoning however, requires the government to identify a representative and well-established historical analogue. It is not necessary that it be a historical twin. Although a current regulation may not have historical precedents, it might still be comparable enough to pass constitutional test.
[3.]You are right Regulations that only place a minimal burden on law-abiding citizens’ ability to defend themselves can limit their rights.. “Heller McDonald point toward at least two metrics” for evaluating regulations: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense…. [W]Analogical inquiries should consider the impact of historical and modern regulations on the right for armed self-defense. Nondiscretionary license requirements for carry permits, such as for example, are constitutional, provided that they don’t prove too burdensome or are justifiable by the goal of limiting gun ownership for “law-abiding, responsible” citizens.
[N]Nothing in this analysis should be taken to indicate the constitutionality of the 43 State’s “shall issue” licensing systems. Under which, “a general desire to self-defense suffices to get a license,” [permit].” These licensing rules do not require that applicants show an unusual need for armed defense. They do not prevent law-abiding citizens from exercising their Second Amendment rights to carry.
It appears, instead, that the shall-issue rules, which require applicants to pass a firearms safety class or undergo background checks, are intended to make sure that all persons who are authorized to carry arms within the jurisdiction are law-abiding and responsible citizens. And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials ….
Even though any permit system can be misused, it is possible to challenge shall-issue rules. This could include lengthy waiting times or excessive fees that deny the rights of ordinary citizens to have public carry.
Justice Kavanaugh and Chief Justice Roberts emphasized this point in an concurring opinion.
[T]he Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense…. These shall-issue rules may also require license applicants to complete fingerprinting and a background check. They might also need training in firearms handling or laws regarding force. These shall-issue rules are not like New York’s may issue regime. They do not allow licensing officers to exercise any discretion and don’t require that a license applicant show a special need other than self-defense. According to petitioners, the constitutionally authorized shall-issue licensing programs are subject to an as-applied challenge, in case a shall issue licensing program does not function in this manner in practice.
[4.]However, if the law significantly burdens the rights without sufficient historical support it is invalid. It cannot then be upheld by “intermediate scrutiny,” “strict scrutiny,” and/or a similar test. It cannot simply state that the government has an interest in protecting armed crime and other injuries, but then significantly burden that right. The Court states that such an approach may lead to the end of this right.
This Court has learned something from the past decade of Second Amendment litigation. Federal courts that are charged with difficult empirical decisions regarding firearm regulations, under the umbrella of “intermediate scrutiny”, often defer to legislative determinations. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. Second Amendment is “the very result of interest balancing done by the people”. It “surely elevates over all other interests” the right for law-abiding citizens to carry arms in self-defense. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.
[5.]The Court indicated that certain types of restrictions were constitutional.
[a.] There are restrictions on the transport of sensitive items such as school and government buildings.
Take, for instance, Heller“Longstanding” firearms laws prohibiting carrying guns in public places like schools and government buildings. Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. Therefore, we can conclude that it was settled that these were “sensitive areas” in which arms carrying is prohibited as per the Second Amendment. The courts may also consider analogies to the historical regulations of sensitive areas to find that current regulations forbidding guns being carried in these places is constitutionally permissible.
[b.] Interdiction of concealed carry But only IfOpen carry is permitted:“The evidence that antebellum America has provided historical proof does show this.” The way of public carry was subject to reasonable regulation…. States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.” Practically, it is likely that jurisdictions without statutory provisions generally permitting carrying, such as California, Hawaii, Massachusetts, New Jersey and New York (and D.C.), would prefer that concealed carry be allowed. However, in theory I think such a jurisdiction would allow only open carry and follow many of the 19th-century models in other states. A jurisdiction might ban open carry, but allow concealed carry, as Florida does.
[c.]As mentioned above Nondiscretionary licensing restrictionsExcept if they cause “lengthy waits in processing license application or exorbitant fee” or significantly limit the ability for responsible gun owners to obtain a license, You can also inquire if waiting periods would be allowed for guns to purchase, as well as for carrying licenses. The Court has not yet decided on this question.
[d.] Restrictions on firearm ownership for felons or the mentally ill This point was reiterated in the Kavanaugh/Roberts concurrency. Heller Majority and the McDonald Lead opinion:[N]”Nothing should be taken in our view to doubt longstanding prohibitions of the possession firearms by felons, the mentally ill.” While the Court’s reasoning is not entirely clear, it seems that the Court believes gun ownership has been restricted to responsible law-abiding citizens. (Ask the Court whether it means “citizens” in this context citizens of the United States. Or just all private individuals.
[e.] Restrictions on machineguns and other “dangerous and unusual” weapons—which probably means unusually dangerous weapons: Also, again, the Kavanaugh/Roberts concurrence allows for quoting Heller And McDonald: “[T]All weapons were considered to be common at that time. This limitation seems to be supported by historical traditions that prohibit the carriage of unusual and dangerous weapons.
[f.] “[L]”Aws to impose conditions and qualifications for the commercial sale Based on Kavanaugh/Roberts concur, HellerPlease see the following: McDonald). However, they could still be unconstitutional if laws significantly limit the rights to gun ownership (rather that regulating commercial sales behavior),
[6.] Much of course remains unresolved—as is common for any foundational Supreme Court decision (for instance, the Court’s early free speech decisions, which left much to be decided in future cases). Here are some examples:
[a.]Is the right kick at Age 18The general age at which the majority of Americans are living today is called “the average age of majority in America” or simply “at”. Age 21The age at which a person is considered to be majority in the United States. The courts may interpret some late 19th century laws, which limited the rights of under-21 year-olds to purchase certain guns.
[b.]Which place would it be? Restaurants that serve alcohol or stores that offer alcohol can be called bars.Off-premise consumption Some states have bans on gun carry in some places. I am not aware of the historical context.
[c.]What does this all mean? Red flag laws? The following passage deals with the historical precedents of restricting gun ownership to people, based upon court orders finding an increased risk of misconduct by their side. These statutes only required posting a financial bond and not giving up one’s guns.
Massachusetts passed a new law in 1836 that provided: “If anyone shall be armed with any dirk, knife, sword, pistol or any other offensive and hazardous weapon without reasonable cause for fear of an assault or any other injury to his person or his property, he can, upon complaint by any person with reasonable cause for fear of an injury, breach of the peaceful, be required find sureties to keep the peace for a period not exceeding six month with the right to appeal as previously provided.” [Some states had similar rules. -EV] …
[T]He certainty statutes PresumedThe right of public carry was granted to individuals only when another person had “reasonable reason to fear injury or breach of peace.” William Rawle explained this in an important article [1829]Treatise states that an individual’s possession of arms is “sufficient cause” to warrant him to guarantee the peace if he “attended to circumstances giving just cause to fear that they will be used illegally.” The surety laws were not applicable even if this was the case. InterdictionPublic carry is allowed in places frequented daily by the community. Instead, the accused arm-bearer could continue to carry without any penalty so long “post[ed] money that would be forfeited if He breached the peace or injured others—a requirement from which he was exempt if heSelf-defense is essential
Contrary to New York’s, there was no need for a demonstration of special needs. FollowingAn individual could reasonably be accused of intending injure others or to breach the peace. And, even then, proving special need simply avoided a fee rather than a ban….
Also noted by the Court, laws weren’t strictly enforced.[O]ne scholar who canvassed 19th-century newspapers—which routinely reported on local judicial matters—found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement.”
In any event, this is my overall impression of the subject; I would love to hear from others.