The Second Amendment Keeps Winning in Court

The Supreme Court
The Supreme Court in Washington, D.C.

If you hear any wailing and gnashing of teeth, just ignore it. That’s just the anti-gunners freaking out as the repercussions of recent Supreme Court rulings pull the rug out from under their prized bans and prohibitions.

I don’t care whether you love President Trump or hate him, we all owe him a debt of gratitude for appointing strict constitutionalists to the Supreme Court. It’s putting an end to the Second Amendment being treated differently from the Fist Amendment.

For example, have you ever heard the argument that the Second Amendment doesn’t apply to semi-automatic rifles because they didn’t exist 240 years ago when they wrote and ratified the Bill of Rights? Yet the people who use that argument would never claim that the First Amendment doesn’t apply to radios, television and the Internet, which also didn’t exist back then. Likewise, no one thinks practitioners of religions that didn’t exist 240 years ago shouldn’t enjoy religious freedom today.

Note: I am not an attorney and this is not legal advice. This is my layman’s interpretation of recent events.

Heller Decision

Back in 2008, the Heller decision recognized that Americans had the right to own guns, even in cities like Washington, D.C., which had for years banned pistol ownership. When you stop and look at the text of the Second, which plainly states “the right of the people to keep and bear arms, shall not be infringed,” it’s hard to think that they could have decided anything else.

It’s shocking to think that in the face of such a statement laws banning firearm possession had ever existed, but most anti-gun laws early in the country’s history were intended to prevent African Americans, recent immigrants, and other “undesirables” from owning guns. These laws were passed with a wink and a nod because they did not affect those with political power.

Heller also clarified that the arms “we the people” may possess are those that are in common use for lawful purpose. In Heller, this meant pistols, which the city had banned, but the rule established by the court can also justify ownership of AR-15s, which are arguably the most common rifle in use today.

The Bruen Decision

If the Heller decision affirmed the right of Americans to keep arms, the June 2022 Bruen decision confirmed their right to bear them. After all, how can you use a gun for self-defense if you can’t carry it?

Most states have “shall issue” concealed carry permits, meaning if the person applying for the permit can pass a test and prove they are not a criminal or mentally ill, the state shall issue them a concealed carry permit. At the time of the lawsuit, New York was one of the few states with what is called a “may issue” concealed carry permit that gave sheriffs and other officials discretion in issuing a concealed carry license. By using a “means test,” people had to prove they deserved to carry a gun, which makes it a privilege, not a right. It also allowed the politicians the opportunity to deny guns to people who they didn’t think should have them, yet another sad remnant of the country’s racist past.

More importantly, the court established a test which can be applied to determine if a gun law is constitutional: Was there an analogous law at the time of the founding? If so, then the new law was constitutional. If there was not a “relevantly similar” law, then the new law would be unconstitutional. Not only was this test to be used by lower courts, but regulatory agencies should consider it before passing a law or regulation that infringed upon the Second Amendment rights of the American people.

Recent Decision

Last year, the ATF expanded its authority and started regulating parts kits and what are called “80 percent receivers.” These are generally unfinished hunks of metal or partially formed pieces of plastic that someone could buy, take home and, with a good bit of work drilling and filing or machining, turn it into a firearm receiver which could become the basis of building a gun.

Building your own gun was never illegal. Selling partially manufactured frames and receivers has never been illegal and was, in fact, allowed by the ATF, which is where the term “80 percent receiver” came from. By taking on the power to regulate these weapons, the ATF over stepped its regulatory authority and a District Court judge has issued a preliminary injunction, preventing the law from being enforced.

Interestingly, the court didn’t even have to get into historical analogs or determine if the ATF correctly took all the necessary steps to create this rule. The court determined that the plaintiffs were likely to succeed in their claim that the ATF exceeded its statutory authority and issued the injunction.

With any luck, we will see a similar result in the many lawsuits filed against the ATF’s ban on arm braces, which was also a reinterpretation of law and went against their prior policy. There are many similarities between the ATF changing the rules regarding parts kits and the ATF changing rules against pistol braces. It may take months or years, but I expect the day will come when those of us who own AR pistols and other pistol with arm braces don’t have to worry about violating an ATF regulation. Until then, just remove the brace and store it in another room.

Future Court Cases

The Bruen decision is already giving courts a tool with which to evaluate magazine capacity bans, assault weapon bans and other restrictions states like California and Illinois have passed. I expect many of these will be ruled unconstitutional, even if it takes an appeal or two to find a court that will uphold the law.

When a state like Illinois passes a law banning magazines over a certain capacity and someone sues them to overturn the rule, it could affect other states. For example, if the case goes to the Supreme Court, states like Hawaii and New York, which limit magazine capacity, could have their laws invalidated as well, much like Bruen required New jersey and other states to revise their concealed carry permits.

For the next few years, we should expect a flurry of cases as states and courts feel out the new boundaries for what is and isn’t an unconstitutional infringement on the Second Amendment. We could well see the restrictions on bump stocks, suppressor, and short-barreled rifles overturned. With any luck, the ATF will find its rule making authority limited and its enforcement activities will evolve to concentrate on existing criminals rather than trying to turn law-abiding citizens into criminals by twisting words and misinterpreting laws passed by Congress.

Guns for Self Defense

That’s good news for anyone who wishes to own or carry a gun for self-defense. We only have to look at cities like Chicago, where they have both stringent anti-gun laws and lots of shootings, to recognize gun control does not stop criminals from owning guns. Teenage gang members in Chicago shoot up the streets with fully automatic Glocks and suffer no consequences, yet their politicians want to make it impossible for you to own guns to protect yourself. No wonder Lori Lightfoot lost her election.

For preppers, self-defense may mean carrying a concealed pistol everywhere you go. It may mean sleeping with a shotgun by your bed. It may mean having three AR15s, several dozen 30-round magazines, and 10,000 rounds of ammunition locked away in case you need them after the SHTF. Thanks to the Supreme Court, you’ll have the right to do that for the foreseeable future.