The Great Legal War Over Your Freedom

by
posted on December 23, 2023
Supreme Court building
Douglass Rissing/iStock

Since the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen in 2022, the lower courts have been either trying to apply, or to resist, its directive to decide the validity of restrictions on the basis of the text of the Second Amendment and historical analogues from the time of the Founding. According to the ruling, an activity is presumed to be protected if it involves keeping and bearing arms by the people. The burden is then on the government to find historical precedents to show that a restriction is part of the nation’s history and tradition.

The Fifth Circuit Court of Appeals applied Bruen to the federal ban on gun possession by a person subject to a domestic violence restraining order (DVRO) and found it to violate the Second Amendment. State DVROs are often issued with little pretense of an adversary hearing or are mutually agreed upon in divorces without knowledge that it evokes a federal gun ban.

The Supreme Court agreed to hear the case, U.S. v. Rahimi, and a barrage of amicus briefs have been filed on both sides. Mr. Rahimi faces several state charges involving actual violence, dwarfing the federal possession charge. The amicus brief of the National Rifle Association put it this way: “Rahimi should not only lose his Second Amendment liberties, but he should also lose all of his liberties—if the allegations against him are ultimately proven true with sufficient due process. But constitutional safeguards cannot be set aside to obtain those ends.”

Consider the supposed historical analogues cited by Biden’s Justice Department and its amici—discriminatory laws disarming Catholics, slaves and “tramps”; confiscation of arms by oppressive British monarchs and by our own patriots in the American Revolution (there was a war going on, after all); and wholly irrelevant laws against gun sales to children and intoxicated persons. The Court heard oral arguments in the case on Nov. 7, 2023.

The Third Circuit, in Range v. Merrick Garland, held the federal ban on gun possession by felons to be unconstitutional as applied to a person convicted of a minor, non-violent offense.  Again, no laws in the Founding era disarmed persons who were not dangerous. The government is asking the Supreme Court to hear that case after it decides Rahimi.

When it decided Bruen, the Supreme Court directed the Fourth Circuit to reconsider its upholding of Maryland’s “assault weapon” ban in Bianchi v. Frosh. That court had held that ordinary AR-15 semi-automatic rifles are not really different from machineguns and are “weapons of war most useful in military service,” even though no military force in the world issues them as service rifles.

The Fourth Circuit got right on it, holding its oral argument on Dec. 6, 2022. A year later, crickets. Still no decision. Is it really so hard to apply Bruen’s simple tests, or would the court not like the result?

Another “assault-weapon” case is pending in the Seventh Circuit, involving the recent ban passed by the state of Illinois and similar ones passed by Illinois localites. In the Bevis case, a Chicago court denied a preliminary injunction based on the “particularly dangerous” nature of ordinary AR-15s. In Barnett v. Raoul, the District Court for the Southern District of Illinois issued a preliminary injunction based on the Supreme Court’s “common-use” test, but the court of appeals reversed it. So, the Illinois ban remains in limbo.

Now on to the reliably anti-gun Ninth Circuit. When it decided Bruen, the Supreme Court told the Ninth, flat out, to reconsider Duncan v. Bonta, in which the Ninth upheld California’s magazine ban. The court could have easily invalidated the ban, but instead sent it back down yet again for reconsideration by District Judge Roger Benitez. After a trial, Judge Benitez again held the magazine ban unconstitutional, this time in a 71-page opinion, and issued a permanent injunction against its enforcement.

The Ninth Circuit, en banc, stayed the injunction except as to the possession ban on magazines lawfully acquired before the lower court’s order. Dissenting, Judge Lawrence VanDyke wrote, “The story of the Second Amendment in this circuit has been a consistent tale of our court versus the Supreme Court and the Constitution. That tale continues today, and will continue as long as a number of my colleagues retain the discretion to twist the law and procedure to reach their desired conclusion.”

When it decided Bruen, the U.S. Supreme Court directed the Fourth Circuit to reconsider its upholding of Maryland’s “assault weapon” ban in Bianchi v. Frosh. The Fourth Circuit held its oral argument on December 6, 2022. A year later, crickets. Still no decision. Is it really so hard to apply Bruen’s simple tests?

The Ninth Circuit also remanded Miller v. Bonta back to Judge Benitez, who earlier found California’s ban on “assault weapons” violative of the Second Amendment. The judge again invalidated and enjoined the prohibition on such commonly possessed rifles, and the state is off to the Ninth. Déjà vu all over again.

California bans the retail sale of semi-automatic pistols that do not have a chamber-load indicator, a magazine-disconnect mechanism and microstamping capability (a futuristic design in which the firing pin imprints the identity of the pistol on the primer when fired). In Boland v. Bonta, Judge Cormac Carney of the Central District of California issued a preliminary injunction against all three requirements. Predictably, the Ninth Circuit stayed the injunction, except for the part applicable to microstamping. Perhaps to moot the microstamping issue for now, the California legislature recently amended the requirement to apply only to semi-automatic pistols manufactured after Jan. 1, 2028.

There has been a major development regarding prohibitions on the sale and carrying of firearms by young adults aged 18 to 20. The issue should be a no-brainer, given that the Second Amendment protects the right of “the people” to keep and bear arms, the Militia Act of 1792 required male citizens aged 18 to 44 to acquire and carry firearms and young adults are eligible for military service. Despite that, Florida law bans the sale of a firearm by a licensed dealer to a person aged 18 to 20.

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, in NRA v. Bondi, upheld Florida’s law. Contrary to Bruen, it ignored the lack of any such sales restriction at the Founding and relied on a handful of late 19th-century laws as analogues. This method would be unthinkable as applied to any other guarantee in the U.S. Bill of Rights.

Just hours after the Bondi decision was announced, a judge withheld issuance of the mandate in the case (a procedure that would have made the decision final), and later a majority on the court voted to vacate the panel decision and rehear the case en banc.

Just after the panel decision in Bondi, the U.S. District Court for the District of Minnesota, in Worth v. Harrington, held that young adults aged 18 to 20 are protected by the Second Amendment in obtaining permits to carry handguns. The state has appealed that decision to the Eighth Circuit.

Turning to the subject of the right to carry handguns regardless of age, Bruen invalidated New York’s law that issued permits to a favored few and held that law-abiding citizens generally are entitled to carry without showing a special “need.” Seeking to nullify that decision, New York enacted laws banning permit holders from carrying a firearm in most public places, including public transit, churches and synagogues and public parks. To carry a gun into a business open to the public, a sign must be posted inviting gun owners; otherwise, carrying there is a felony. That turns upside-down the normal rule requiring a “no-trespassing” sign to exclude persons for whatever reasons.

In Antonyuk v. Hochul and in His Tabernacle Family Church v. Nigrelli, and other cases, district courts held the New York ban likely to violate the Second Amendment and issued preliminary injunctions against its enforcement. The Second Circuit court of appeals summarily stayed the injunctions without explanation. While the Supreme Court denied a motion to vacate the stay in Antonyuk, Justice Alito admonished the Second Circuit to expedite the appeal.

The Second Circuit held oral argument in the cases on March 30, 2023. And since then? Again, crickets. Despite the hundreds of pages of legal history set forth in the district court opinions, and the existence of a fundamental constitutional right at stake, the court of appeals has remained silent.

As if to snub Bruen, New Jersey enacted a similar ban to that of New York. In a 230-page opinion, the district court issued a preliminary injunction against enforcement of several of its provisions in Koons v. Platkin. The Third Circuit granted a stay of the injunction against enforcement of the provisions that are claimed to be about “sensitive places,” such as parks and public gatherings. It left the injunction in place against the requirement that a permit holder must keep a handgun unloaded and in the trunk of a motor vehicle, and the ban on carrying a firearm into a business open to the public unless a “Welcome Gun Owners” sign is posted.

Hunter in a field

Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has been attempting to foist new, far-reaching regulations upon American gun owners. In violation of the separation-of-powers under which Congress makes the law and the executive branch enforces the law, the ATF purports to expand its reach on its own.

The first regulation seeks to expand the definitions of “firearm” and “frame or receiver” in the Gun Control Act (GCA) to include partially machined raw material that the GCA doesn’t restrict. In VanDerStok v. Garland, the U.S. District Court for the Northern District of Texas vacated the entire set of regulations, the Fifth Circuit substantially approved, but the Supreme Court allowed the regulation to go into effect for now. After that, the district court issued a preliminary injunction against enforcement of the regulations against the plaintiffs in the case.

While VanDerStok focuses on the attempt by the ATF to exceed its authority under the GCA, Second Amendment rights are implicated by the attempt of bureaucrats to restrict the right to keep and bear arms in a manner not condoned by Congress, much less by the text and history of the Second Amendment.

In the second ATF regulation change, after years of classifying pistols with stabilizing braces as pistols, the ATF promulgated a regulation classifying them instead as short-barreled rifles under the National Firearms Act. In Mock v. Garland, the Fifth Circuit held that the rule is likely invalid and temporarily enjoined its enforcement. Concurring, Judge Don R. Willett wrote, “Rearward attachments, besides making a pistol less concealable, improve a pistol’s stability, and thus a user’s accuracy. Accuracy, in turn, promotes safety.”

Back in the district court, Judge Reed O’Connor enjoined enforcement of the pistol-brace rule as applied to the plaintiffs, their customers and members of the association that is party to the suit. Besides violation of the Administrative Procedure Act, the regulations were found to violate the Second Amendment. Pistols with braces number as many as seven million and are “in common use,” which Heller held to be one aspect of the test. The Second Amendment protects “making common, safety-improving modifications to otherwise lawfully bearable arms,” as well as “the right of personal gunsmithing.”

The third change involves the ATF proposing new regulations seeking to expand the definition of “engaged in the business of dealing in firearms” in a way that would require untold numbers of ordinary gun owners to get dealer licenses. In the GCA, Congress defined the term to require “dealing in firearms as a regular course of trade or business to predominantly earn a profit,” excluding occasional sales. The ATF has now made up a list of actions that create a presumption that one is engaged in the business, such as “rents ... temporary physical space to display ... firearms they offer for sale, including ... a table or space at a gun show.”

So while the Biden administration’s “zero-tolerance” policy seeks to drive actual dealers out of business—guns are too available, you know—the proposed regulation seeks to make as many as possible get dealer licenses. The motive is clear: “universal background checks” couldn’t get through Congress, so they want to force people who aren’t actually dealers to get licenses and do checks anyway. To exercise the right to buy and sell a gun occasionally, you’ll have to get a license, keep records and be subject to inspection by the ATF. That cannot be consistent with the Second Amendment, and litigation will definitely break out once final regulations are adopted.

Attorney Stephen P. Halbrook is a senior fellow with the Independent Institute. His latest books are America’s Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? See StephenHalbrook.com.

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