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<![CDATA[ANJRPC v. Platkin]]>

SCOTUS sends gun and magazine ban cases back to lower courts

June 30, 2022 by Cam Edwards Leave a Comment

I was hoping that the Supreme Court would grant cert to one or more of the Second Amendment cases that have been pending in conference in light of their decision in Bruen, and technically I got my wish. All four cases were indeed granted cert in today’s orders, but all four decisions were immediately vacated and the Court sent the cases back down to the respective appellate courts for further review “in light of” the decision in New York State Rifle & Pistol Association v. Bruen.

The Association of New Jersey Rifle & Pistol Clubs, which is the plaintiff in a case challenging that state’s ban on the purchase or possession of ammunition magazines with a capacity greater than ten rounds, quickly sent out an alert to its members about the development, saying that “these developments strongly imply that the outcome of the mag ban case might be different under the new Bruen rules,” adding that the Court “also took a similar action in a challenge to an assault firearms ban in Maryland,” which also “implies that assault firearms bans may not survive scrutiny under Bruen, and the potential implications for New Jersey are significant.”

As we’ve previously discussed, the four cases in question involve challenges to New Jersey and California’s ban on “large capacity” magazines as well as Maryland’s ban on so-called assault weapons and Hawaii’s “may issue” permitting process for open carry (the similar “may issue” requirement for concealed carry was upheld by the Ninth Circuit in a case called Peruta v. San Diego back in 2016). The Third, Fourth, and Ninth Circuits will now have to revisit their decisions upholding all of these gun laws, all of which relied on the two-part interest-balancing test explicitly rejected by the Supreme Court in Bruen.

Instead, the courts will now have to determine whether these types of bans are “consistent with this Nation’s historical tradition of firearm regulation”, specifically at the time of the ratification of the Bill of Rights and in the post-Civil War period when the Fourteenth Amendment was ratified. It’s going to be awfully difficult to do so given that there is no historical tradition of banning entire classes of firearms or limiting their ammunition capacity.

The AR-15 wasn’t the first major advancement in firearms technology after all, and yet when single-shot cap and ball pistols were made outdated thanks to Samuel Colt and his repeating revolvers, there was no widespread attempt to ban them from the consumer market (though there were regulations on the manner in which they could be carried). Similarly, when the first repeating rifles came to market there was no hue and cry to ban them in the name of public safety or calls to remove these “battlefield weapons of war” from the hands of civilians. Heck, I can’t even find any evidence of a 19th century equivalent to Joe Biden complaining that “no one needs to load on Sunday and shoot all week long”, despite the introduction of a 16-round fixed magazine in early repeating rifles.

Unfortunately, we’ve seen lower courts play plenty of games with our right to keep and bear arms since the Heller decision was handed down, and I suspect that isn’t going to entirely change simply because SCOTUS has become more blunt in their directions to trial and appellate judges. The Fourth Circuit, for example, originally upheld Maryland’s ban on so-called assault weapons because they determined the semi-automatic rifles are “like” machine guns, which they said could be banned under the Heller decision.

It’s entirely possible that they’ll try to pull that same stunt again, but based on Thomas’ majority opinion, I don’t think the Court is going to have much patience for the judges (or anti-gun politicians) that continue to defy their ruling or the text, history, and tradition of our right to keep and bear arms. Justice may not come as swiftly as many gun owners would like, but I’m confident that it will be done.

Filed Under: <![CDATA[ANJRPC v. Platkin]]>, <![CDATA[Assault Weapons Ban]]>, <![CDATA[Bianchi v. Frosh]]>, <![CDATA[Duncan v. Bonta]]>, <![CDATA[magazine ban]]>, <![CDATA[open carry]]>, <![CDATA[Second Amendment]]>, <![CDATA[Supreme Court]]>, <![CDATA[Video]]>, <![CDATA[Young v Hawaii]]>, Bearing Arms, News

SCOTUS holds on to gun, magazine ban cases pending in conference

June 27, 2022 by Cam Edwards Leave a Comment

I was hoping that after last Thursday’s historic decision in New York State Rifle & Pistol Association v. Bruen the Supreme Court might choose to put an exclamation point on its opinion by granting cert to at least one of the four Second Amendment-related cases that have been pending in conference, but instead the justices are keeping those cases in conference for at least another week.

Is this something to be concerned about? Not necessarily. Over at SCOTUSblog, reporter Amy Howe reminded readers that while last week “was the court’s last *scheduled* conference, but the court traditionally holds what we call the “clean-up conference” after all of the opinions have been issued — whenever that is, because the court has not yet announced when that day will be.”

This week will likely mark the release of the last cases of this term, so maybe we’ll see the Court take action on these four cases in the “clean-up” conference. I have a hard time with the idea that the justices are going to let these four cases dangle in the wind for several more months, especially when they don’t have to grant cert but can simply remand all of the cases down to the lower courts with instructions to follow the “text, history, and tradition” test laid out by Justice Thomas in the Bruen opinion last week.

Two of the four cases currently in legal limbo deal with bans on so-called large capacity magazines; Duncan v. Bonta takes on California’s ban while Association of New Jersey Rifle & Pistol Clubs v. Platkin challenges a nearly identical law in New Jersey. Both laws require existing owners of magazines that can hold more than ten rounds of ammunition to either permanently modify them, hand them over to law enforcement, or remove them from their possession. The third case is Bianchi v. Frosh, which argues that Maryland’s ban on “assault weapons” is unconstitutional, while the final case (Young v. Hawaii) challenges that state’s “may issue” policy for granting permits to openly carry a firearm.

In all of these cases the appellate courts (and the state Attorneys General defending the laws) relied on the interest-balancing test rejected by SCOTUS in Bruen, arguing that government could ban these commonly-owned magazines because of a public safety interest, even though the laws implicate the Second Amendment rights of law-abiding gun owners. The Court rejected that test in both the Heller and McDonald cases dealing with bans on handguns in the home, but Thomas was even more explicit about the criteria lower courts should use to evaluate the constitutionality of gun control laws in Bruen.

The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.”

To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry.

If the lower courts abide by the SCOTUS ruling (a big “if”, to be sure) then there’s not much doubt about the ultimate outcome of these cases. The Court has certainly hinted that semi-automatic rifles and 10+ round magazines, which are both in common use today, are protected by the Second Amendment, and it’s hard to point to any sort of comparable ban in either the text or the tradition of the Second Amendment. No state banned revolvers or repeating rifles when they first came on the market, even though they represented huge technological advancements in terms of both capacity and the rate of fire. It wasn’t until the last 30 or 40 years that the gun control lobby convinced blue state lawmakers to impose these types of bans, which are still the exception and not the rule when it comes to state-level gun control laws.

I continue to hope that the Supreme Court will grant cert to one or more of these cases, though the most probable outcome is that the Court ends up remanding all of these cases back to lower courts for further review. We’ll be anxiously awaiting the Court’s orders from its “clean-up conference”, and we’ll also be getting the thoughts of California Rifle & Pistol Association president and Second Amendment attorney Chuck Michel later today when he joins Bearing Arms’ Cam & Co to talk about the impact of the Bruen decision on California’s many anti-gun statutes.

Filed Under: <![CDATA[ANJRPC v. Platkin]]>, <![CDATA[Bianchi v. Frosh]]>, <![CDATA[Chuck Michel]]>, <![CDATA[Duncan v. Bonta]]>, <![CDATA[Gun Ban]]>, <![CDATA[magazine ban]]>, <![CDATA[Second Amendment]]>, <![CDATA[Supreme Court]]>, <![CDATA[Video]]>, <![CDATA[Young v Hawaii]]>, Bearing Arms, News

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