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The Supreme Court Just Upended the Legal Landscape on Guns
The Bruen decision may affect a wide swath of gun regulations, including assault weapons bans, magazine limits, permits and more
By Stephen Gutowski
Gun laws across the nation will soon change. The Supreme Court ruled last week that New York’s restrictive gun-carry law violates the Second Amendment. Now New York, and at least five other states that are collectively home to more than 25% of the nation’s population, will have to completely rework how they handle gun-carry permits. As significant as that change is, though, it is only a small part of the future impact of the Court’s ruling.
Limited Short-Term Effects
The immediate impact of the ruling, however, is likely to be rather small. States directly affected by the decision on gun-carry regulations, including New York itself, are poised to resist the ruling by trying to circumvent it through changes that are compliant in name only. But these efforts are unlikely to succeed in the long term or accomplish anything more than delaying the inevitable for a few weeks or months.
Once those jurisdictions are forced to fall in line with the Court’s ruling—likely after having to pay for several gun-rights groups’ legal fees—the new laws they adopt will still be more restrictive than some media commentators have suggested. They will probably end up with laws similar to that of Washington, D.C., or Illinois. Both jurisdictions had restrictive gun-carry laws that were recently struck down in federal court, and they were ultimately forced to adopt a policy more in line with the rest of the country.
D.C., for instance, ended up with a process that allows anybody who qualifies for a permit to get one. However, becoming qualified is more daunting than in other jurisdictions with similar policies. For instance, D.C.’s training requirements are about double those of neighboring Virginia, and the fees associated with obtaining the permit are as well.
Carrying after obtaining a permit is also more daunting. Unlike Virginia, D.C. bans carrying on the public transit system the two jurisdictions (plus Maryland) share. It also bans carrying in houses of worship or in any restaurant that serves alcohol. There’s even a roving gun-free zone that follows those under diplomatic protection.
So, restrictions will remain. Some states may push the boundaries beyond what D.C. has implemented with even more restrictive gun laws.
Wide-Ranging Long-Term Effects
Despite these limited effects in the near term, the impact of the Court’s decision will be far more than trivial, as millions more people become eligible for gun-carry permits they can actually obtain. Estimates put the number of gun-carry permits under the restrictive New York regime between 40,000 and 80,000, while Florida (a state with a similar population size) has more than 2.3 million.
Moreover, gun carry is only the beginning. The Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen is going to influence many more gun laws throughout the nation and could even bring about the downfall of the most contentious ones, because it sets up a new standard for deciding gun cases at all levels of the federal court system.
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Justice Clarence Thomas wrote for the Court. “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
This framing of the issue sets up a showdown for all sorts of gun laws in the coming months and years. Any modern regulation that isn’t analogous to one in place during the founding era is going to face fresh scrutiny. That includes many state laws that lower courts have previously upheld under a two-step legal test the Court explicitly rejected in Bruen.
Thomas said that test, which balanced individual gun rights against government interests in protecting public safety through intermediate scrutiny, was insufficient for protecting a constitutional right.
If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.
That fresh scrutiny spurred on by the new standard leaves “assault weapons” bans, ammunition magazine limits, gun-sales permitting, handgun rosters and other modern regulations firmly in the crosshairs of gun-rights advocates. They could all be swept aside as unconstitutional, though that process will likely take years of litigation and may depend on further action from the Supreme Court itself.
A series of cases already pending before the Court will give insight into the effect of Bruen in other areas of gun law. Bianchi v. Frosh, for example, is a case involving Maryland’s “assault weapons” ban. It has been upheld by the Fourth Circuit using the now-defunct two-step standard. In Duncan v. Bonta, a California magazine limit was upheld by the Ninth Circuit under the same two-step standard. ANJRPC v. Bruck deals with the same magazine question and was similarly upheld in New Jersey. Young v. Hawaii deals with what amounts to a total ban on gun carry in Hawaii, which is likely the most vulnerable state law in the wake of Bruen.
But it’s entirely possible that none of these gun regulations will survive the new Bruen test. If so, the makeup of gun laws in America will be very different in a few years than it is today.