President’s Column | Bruen: A Sea-Change Moment

by
posted on December 19, 2022
Charles L. Cotton

Anyone who follows the news concerning the Second Amendment and self-defense is aware of the United States Supreme Court’s decision in the New York State Rifle & Pistol Association v. Bruen case. Bruen was a watershed moment in American history. SCOTUS held that Americans’ Second Amendment rights don’t stop at their front door; they exist throughout the United States. It based this opinion in part on the fact that Americans have a right to carry firearms for self-defense. In this attorney’s opinion, this part of the decision is every bit as important as the direct impact on the Second Amendment.

But the Bruen decision did much more. It also set an entirely new standard for lower courts to use in deciding whether laws that affect Second Amendment rights are constitutional. Gone are the days when courts can play games with struct scrutiny, intermediate scrutiny and rational-basis standards tests. Under Bruen, a gun law is constitutional only if the government can point to laws that existed in 1791 that were essentially the same. (The terminology used by the Court is a historical analog.)

All NRA members can take pride in the fact that the Bruen case was the NRA’s case from the beginning! We knew how important it was to get a case to the SCOTUS that expanded the Heller decision outside one’s home.

Almost from the moment the Bruen decision was rendered on June 23, 2022, dozens of new cases have been filed throughout the United States seeking to strike down unconstitutional laws infringing on Americans’ Second Amendment rights. Several of those cases have already seen federal district court judges enjoining the enforcement of the gun laws at issue. It’s great to see these cases being filed. Again, these cases and the quick victories are possible because the NRA took on this effort that became the Bruen case.

Getting to the SCOTUS with the Bruen case required the laying of legal groundwork for many years. Unknown to the vast majority of Americans, work began in the 1970s to change the legislative and litigation course of Second Amendment. Law professors, attorneys, historians and others began to write about the foundation of the Second Amendment. Their collective goal was to tell the truth about it. Over the next decades, progress was made, albeit at glacial speed. More and more federal and state judges, as well as members of Congress, slowly came to have a better understanding of the true scope of the Second Amendment.

A landmark event came in 1987 when the State of Florida passed its “shall-issue” concealed-carry law. That state and that law became a beacon to dozens of other states that passed similar laws over the ensuing years. Carrying firearms for self-defense was no longer Hollywood make-believe. Handguns were becoming more acceptable to the general public. Passage of the Florida law was the direct result of the foresight and work of former NRA President Marion Hammer and NRA Executive Vice President Wayne LaPierre. They decided Florida would be the birthplace of shall-issue laws that enabled citizens to carry self-defense handguns. Millions of Americans carry defensive handguns because of the work that started almost 40 years ago.

The argument that the Second Amendment applied only to states and not citizens ended with the 2008 SCOTUS decision in District of Columbia v. Heller. If one reads the SCOTUS opinion in Heller, they will see the Court’s reliance on much of the scholarly work done by or with the support of the NRA. Briefs filed by the NRA are cited in the opinion. Two years after the Heller opinion was delivered, the SCOTUS had to make it clear that the Second Amendment protected Americans from unconstitutional state and local laws as well. For example, in McDonald v. City of Chicago (2010), SCOTUS again cited much of the NRA briefing to support its decision.

Unfortunately, state and federal judges routinely ignored the SCOTUS decisions on the Second Amendment. However, many things changed over the next 14 years. Most notably, Donald Trump was elected president in 2016, largely due to the NRA’s support and NRA-ILA’s efforts on his behalf. NRA members knew how important that election was to the country in general and to the Second Amendment specifically. He kept his campaign promises, one of which was to nominate numerous federal judges who respected the U.S. Constitution to various district court and appellate court benches. Three current SCOTUS justices are there because of President Trump’s nomination and support. That’s right, three! And the addition of these three made the Bruen case possible.

The point is this—fixing the ignoring or misinterpreting of constitutional law takes time, sometimes decades. Rest assured, though, that your NRA has been, and always will be, at the forefront of the fight for our Second Amendment freedoms.

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