“Shall Not Be Infringed” Is Pretty Clear

posted on January 18, 2024
judge in courtroom
Art: Brad Walker

Since the U.S. Supreme Court’s landmark 2022 decision in New York State Rifle & Pistol Association v. Bruen, some courts have been enforcing the constitutional right to keep and bear arms. The New York Times is alarmed.

Post-Bruen challenges to gun-control laws fail more often than not, but challengers are prevailing more frequently than before. “Courts Strike Down Gun Control Measures in Two States,” lamented a Nov. 23 Times article by David Chen. As is common in Times coverage of the gun issue, many facts in the article are accurate, but the selection of facts and the phrasing are skewed.

As The New York Times explains, the U.S. Court of Appeals for the Fourth Circuit held unconstitutional a Maryland law imposing certain permitting rules regulating handgun ownership in one’s home. And an Oregon state trial court, applying the Oregon Constitution, issued an injunction against a statute banning magazines over 10 rounds and imposing a permitting system to acquire a firearm.

As the Times summarizes Bruen: “Writing for the majority, Justice Clarence Thomas asserted that gun laws should be judged not by the longstanding practice of balancing gun rights against public interest, but by the Second Amendment’s text and the ‘historical tradition’ of gun regulation.”

There’s still ongoing defiance in some lower courts, but less so than before Bruen.

Or, more precisely: the Supreme Court’s 2008 decision in District of Columbia v. Heller examined the text and original meaning of the Second Amendment and held the District’s handgun ban unconstitutional. Dissenting, Justice Breyer wrote that gun-control cases should be decided by the judges “balancing” Second Amendment rights against the government’s interests.

Justice Scalia’s majority opinion in Heller rejected interest-balancing. That balancing was conducted by the American people themselves when they adopted the Second Amendment. Judges have no power to substitute their personal policy preferences for the constitutional rule adopted by the people.

In Justice Scalia’s words: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”

Nevertheless, in the 14 years following Heller, many lower courts did exactly what Heller had said they must not. Rather than obeying constitutional text and original public meaning, many judges treated the Breyer dissent as if it had been the majority opinion. They made their own “balancing” decisions, often with their thumbs on the scale to rule against the civil rights of gun owners.

After 14 years (“longstanding,” according to the Times), the Supreme Court put its foot down in Bruen, and told lower courts to follow Heller’s rule: Courts should defer to the judgement of the American people who enshrined the right to arms in the U.S. Constitution.

There’s still ongoing defiance in some lower courts, but less so than before Bruen. Consider the Fourth Circuit Court of Appeals, which covers Maryland to South Carolina. In the period after Heller and before Bruen, every single legal challenge raising the Second Amendment was defeated. For all practical purposes, the Second Amendment did not apply in the Fourth Circuit.

After Bruen, things are different. In Maryland, every gun sale includes a seven-day waiting period and a background check. The plaintiffs in Maryland Shall Issue v. Moore did not challenge that law. Instead, they targeted another, newer statute, that The New York Times euphemistically said was “related to licensing requirements for handguns.” Under that law, enacted in 2013, citizens who want to use this right need to get a “handgun qualification license” that requires them to be fingerprinted, to take a “firearms safety training course” and then to submit an application for a license and wait up to 30 days. After all that is done, the applicant must go through the seven-day waiting period and another background check.

Under Bruen, the original meaning of the Second Amendment as ratified in 1791 can be clarified by laws before or after 1791 (the closer, the better) showing the types of laws that the American people did not consider to infringe on the right to arms; for example, there were many laws allowing the confiscation of firearms from  people who were proven in court to have used a gun to threaten innocent victims. A legitimate modern law need not be a historical “twin,” but it must be analogous to a traditional law.

In Maryland Shall Issue, the state attorney general could not provide any credible analogues. Laws taking guns away from people who misused them are not analogous to laws that delay gun ownership by over a month—laws that prevent an effective means of self-defense for those who may urgently need a defensive arm. 

Likewise, historic laws requiring militia members to participate in training are not analogous to the 2013 law. Militia laws did not forbid gun ownership by militiamen until after they had been trained. And training laws did not apply to gun owners who were not in the militia.

The Oregon case, Arnold v. Kotek, was based on the right to arms in the 1859 Oregon Constitution. The New York Times gently described a 2022 ballot initiative as “imposing new permit requirements and banning high-capacity magazines.” More precisely, the initiative directly outlawed about half of all magazines, namely those over 10 rounds. Grandfathered owners could keep their magazines but never take them outside the house, except to a target range.

The Oregon trial court held the ban unconstitutional, because multi-shot firearms, such as Colt revolvers, were well-established in 1859, and were constantly being improved for greater firepower. Modern semi-automatics and their magazines are “direct descendants” of those mid-century arms.

Moreover, the statute actually outlawed almost all magazines, because it covered any magazine that can be “changed” to hold over 10 rounds. A small magazine with a removable baseplate can be “changed” to higher capacity in a few minutes by adding a 1-, 2- or 3-round extender. Likewise, shotgun or rifle magazine tubes can be extended; also, the availability of mini-shells means that many standard shotgun magazines can hold more than 10 rounds.

Another part of the Oregon law imposes a permit requirement and 30-day waiting period to acquire a firearm. The court held the denial of self-defense rights for such a long period to be unconstitutional.

Further, the permit law unconstitutionally allows permit denials based on “unsubstantiated” allegations, such as by a “scorned lover.” Additionally, the law makes citizens “prove they are not dangerous.” The proper standard, under Oregon Supreme Court precedent, is that the government must prove that “a citizen is too dangerous to own a firearm.”

This article in America’s 1st Freedom and The New York Times article both covered Maryland Shall Issue and Arnold. But only A1F provided the case names, explained the laws at issue, and described the courts’ legal reasoning. The Times’ generalized fretting shielded its readers from understanding how unreasonable these particular gun-control laws really are.


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