Supreme Court Sends Key Gun Control Cases Back to Lower Courts for Reconsideration Under Bruen


(AP Photo/J. Scott Applewhite, File)

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As expected, this morning the Supreme Court sent a number of gun rights-related cases it had been holding back to lower courts for reconsideration now that New York Rifle & Pistol Association v. Bruen is the law of the land. The Court had been holding cases covering a range of gun control issues pending the breadth of the Bruen ruling.

The key aspect of Bruen that changes the legal landscape for the legitimacy of many gun control laws was the ruling’s explicit rejection of the two-step rationalization that lower courts have been using to evaluate Second Amendment cases for the last 14 years in order to sidestep the Heller decision.

The Supreme Court had for years declined to hear cases challenging laws such as “assault weapons” bans, magazine capacity limits and more, frustrating Justices who thought a clarification was well past due. Now we have that clarification.

As Josh Blackman at The Volokh Conspiracy wrote . . .

Now, New York State Rifle & Pistol v. Bruen has bid farewell to the two-step test. And it did so very, very briskly:

In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. . . .  Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

I haven’t checked Westlaw, but this paragraph probably placed red flags on dozens of circuit court cases. And almost all Second Amendment scholarship that was premised on the two-factor test has now been vitiated.

Oh no. That’s a real shame.

Along those lines, the Supreme Court today GVR’d (granted cert, vacated the lower court rulings and remanded for reconsideration) the following cases in which the lower courts had upheld the gun control laws in question.

Young v. Hawaii — Challenges Hawaii’s ban on open carry as infringing citizens’ Second Amendment right to bear firearms outside the home.

Bianchi v. Frosh — Challenges Maryland’s “assault weapons” ban under Heller’s common use language.

ANJRPC v. Grewal — Challenges New Jersey’s “high capacity” magazine ban for violating the Second Amendment, the takings clause of the Fifth Amendment, and the equal protection clause of the Fourteenth Amendment.

Duncan v. Bonta — Challenges California’s “high capacity” magazine ban as violating the Second and Fifth Amendments as well as the two-step interest-balancing process explicitly repudiated in the Bruen ruling.

The Court’s disposition of these cases today represents the first significant crack in the foundation that lower courts have built in the last 14 years, propping up gun control laws that violate Heller and the Second Amendment.

Today’s moves also show why the gun control industry’s reaction to Bruen was as panicked as it was. Their attorneys recognized what Bruen potentially means and knew that they now have an entirely different fight on their hands.


Clarence Thomas
(AP Photo/J. Scott Applewhite, File)



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