Looking the Bruen Gift Horse in the Mouth :: 07/14/2022

It was a landmark Supreme Court decision, no doubt about it. The 6 - 3 ruling in favor of the plaintiffs in New York State Rifle and Pistol Association v. Bruen was at times actually a fun read, if one can say that about a legal syllabus and opinions. And the implications for rolling back further federal and state infringements are promising and plentiful, especially since the high court’s majority opinion rejects means-end scrutiny and instead embraces a requirement for “courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

“Heller’s methodology centered on constitutional text and history,” the court notes. “It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.”

The New York State Rifle and Pistol Association v. Bruen decision needs to be looked at realistically, especially regarding Justice Kavanaugh's perspective on the Second Amendment.

(Photo illustration comprised with images by vkilikov and Cory Seamer / Shutterstock)

Further, Bruen once again confirms what gun rights advocates have been saying for years: “The constitutional right to bear arms in public for self-defense [we’ll get to this a bit later] is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need.”

What’s not to celebrate?

By all means, let’s do. Realistically. Let’s just not forget we’ve got a long way to go to “shall not be infringed” and it’s important to understand that some of the opinions from the majority will be more helpful toward getting there than others.

“Bruen was a resounding triumph for originalism. But unlike Dobbs, Bruen will not lead to sweeping changes in gun laws nationwide,” constitutional law professor Josh Blackman writes in Reason’s The Volokh Conspiracy. “For starters, more than 40 states already employed some form of shall-issue carry. Depending on how you count, only 6 or 7 states will have to modify their regimes in the wake of Bruen. Much of the sturm und drang about Bruen is hyperbole.

And of those states, we’re seeing mounting and calculated pushback, from plots to like the one proposed by New York City Mayor Eric Adams to “redefine ‘sensitive locations’” so they can keep (legal!) guns out of as many places as the government wants. 

And, of course, there’s more.

“Legal judgments of good moral character can include consideration of honesty, trustworthiness, diligence, reliability, respect for the law, integrity, candor, discretion, observance of fiduciary duty, respect for the rights of others, absence of hatred and racism, fiscal stability, profession-specific criteria such as pledging to honor the constitution and uphold the law, and the absence of criminal conviction” are all criteria that can be used to deny California’s “shall issue” carry license, California’s Office of the Attorney General claimed in a Legal Alert, citing Bruen’s reference to “law-abiding citizens.”

Looking to throw up even more barriers, New York legislators may as well have said “Hold our beer” when they added as part of the state’s licensing hurdles a requirement for “a list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicants [sic] character and conduct as required in subparagraph (ii) of this paragraph; and (v) such other information required by  the licensing officer that is reasonably necessary and related to the review of the licensing application.”

Talk about arbitrary and subjective, especially considering who the political left smears as a “hater” these days. But while some legal commentators doubt many such restrictions would be upheld due to vagueness and First Amendment conflicts, court cases to resolve indeterminate approval delays and/or denials, and subsequent appeals can be dragged on for years.

Earlier in this piece, I inserted an aside next to the term “self-defense” and said we’d get to it. It appears 102 times in the ruling, with the key assertion being that “individual self-defense is ‘the central component’ of the Second Amendment right” [italics in original]. By contrast, the word “militia” only appears 10 times.

The emphasis is understandable here because Bruen is about nothing if not about self-defense, and because the Heller “analysis suggested that the Amendment’s operative clause—'the right of the people to keep and bear Arms shall not be infringed’—'guarantee[s] the individual right to possess and carry weapons in case of confrontation’ that does not depend on service in the militia.”

Again, true. But what gun owners – and those relying on Second Amendment cases – are leaving on the table is what the Founders considered the core purpose, that which was “necessary to the security of a free State,” the citizen militia. And ignoring that makes the Second Amendment more vulnerable to infringements. Bruen wasn’t the case for that, but if Americans ever want to get serious about claiming their right to “ordinary military equipment” intended to be taken into “common defense” battles, individual self-defense alone won’t cut it.

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“But what about ‘well regulated,’?” some will object. After all, the Constitution provides for Congress “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” It won’t be an armed anarchic free-for-all. There will be enforceable rules with punishments for violations, no doubt lists of who has been assigned or brought what, and if military practices are any indication, requirements for storage and other restrictions. And if they arm you, they can take them back, or emulate the Swiss Armed Forces militia system, where soldiers keep assigned weapons (but not ammunition) at home, or in an armory.  Call it what you will, but that’s “gun control”!

Yes, that’s exactly what it is. AFTER being mustered, based, encamped, or deployed. Congress has no power over what a latter-day “minuteman” privately owns and is entitled to keep and bear when not called into service. If otherwise, the whole intent of unalienable rights endowed by our Creator and an armed citizenry as a deterrent to tyranny would be nullified. 

Tench Coxe’s “Their swords, and every other terrible implement of the soldier, are the birthright of an American,” and Thomas Jefferson’s “[T]he tree of liberty must be refreshed from time to time with the blood of patriots & tyrants” would be reduced to mere historical curiosities, as opposed to the new standard emphasized in the Bruen ruling, “the Second Amendment’s text and historical understanding.”

Note the Founders did not say “security of a State.” They emphasized “free State” and they knew you can’t have one of those without a free people. They understood that the people could not be free unless they possessed the ultimate foreign and domestic tyranny nullifier, and most egalitarian power-sharing provision ever devised: the right of the people to keep and bear arms.

The Second Amendment literally requires military weapons ownership by citizens. Concessions like Antonin Scalia made in Heller need to be rejected. And the court doesn’t get that yet.

"Miller's holding that the sorts of weapons protected are those 'in common use at the time' finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons," Scalia noted. He used that to imply banning weapons such as "M-16 rifles and the like" would not be an infringement. Otherwise, he asserted, "it would mean that the National Firearms Act's restrictions on machineguns ... might be unconstitutional, machineguns being useful in warfare in 1939."

Scalia was talking about 1939’s U.S. v. Miller opinion in which the court said of the sawed-off shotgun at the center of the case, “Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” (Look up “United States v. Miller and Short-Barreled Shotguns: A Critical Analysis of the U.S. Supreme Court Opinion Including an Evidentiary Presentation” by friend and colleague Brian Puckett for a detailed breakdown of that.)

Scalia speculated if “restrictions on machineguns ... might be unconstitutional" instead of a thundering “Hell yes, of course they would be!” he felt compelled to volunteer "Like most rights, the Second Amendment right is not unlimited."

Other rights you need to abuse, and the abuse is what is limited, not the right. Saying you can’t commit libel or perjury, or plagiarism, or make threats, doesn’t injure the First Amendment.  Yet the antis have taken Scalia’s wholly unnecessary and volunteered “not unlimited” concession and had a field day with it as their justification for imposing all kinds of prior restraint infringements, due process violations and outright bans (Google “Joe Biden no right is absolute” if you don’t believe me.) And those are targeted not at the violent predators whose evil abuses are used to provide phony “justification” cover for the useful idiots Democrats want to swindle out of their rights, but against those who violence monopolists fear the most: “law-abiding citizens” who recognize the scam.

Picking up where Scalia left off is Brett Kavanaugh, who gave his concessions fresh life in Bruen.

“'The Second Amendment Is Not Unlimited,' Brett Kavanaugh Stresses in SCOTUS Gun Case,” Reason Senior Editor Damon Root writes on his analysis of the justice’s concurrence. “‘Properly interpreted, the Second Amendment allows a “variety” of gun regulations,’ Kavanaugh writes, invoking Antonin Scalia.”

“[S]hall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements,” Kavanaugh asserted. “[T]he Second Amendment ‘is neither a regulatory straightjacket [sic] nor a regulatory blank check.’ Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”

Like what?

Adding to the above, Kavanaugh repeated Scalia’s opinion on “sensitive places“ like Eric Adams and other gun-grabbers now want to “redefine,” upping the number of locations where police are the only ones who can be armed.  As if any more reminders are needed, we’ve just seen how well that worked out in Uvalde. By quoting Scalia, he effectively endorsed undefined prior restraint “conditions and qualifications on the commercial sale of arms,” and “prohibiting the carrying of dangerous and unusual weapons,” all vulnerable to subjective interpretations that will take years of challenges and appeals to settle.

“Why would Kavanaugh write such a concurrence if he also fully joined Thomas' majority opinion?” Root asks.  “Kavanaugh, joined by Roberts, may be signaling to the lower courts that, in his view, many such gun control regulations are presumptively constitutional, and lower court judges should therefore act accordingly. At the very least, many lawyers in future Second Amendment cases will be grappling with Kavanaugh's concurrence.”

And that means many gun owners will be desperately grappling for their freedom because instead of “shall not be infringed,” black-robed elites bending to precedent and to their own political biases figure it’s good for their legacy to appear “moderate” and “reasonable.”

You’d think a man who the left tried not only to disqualify from a job, but personally destroy, would grok the ruthless nature of those for whom total power and control is all that matters. You’d think he’d understand that tyrants and their enforcers need to be defended against as certainly as the street thug who only wants your wallet, unless he thinks he can get more, or the monstrous home invader who makes no secret of wanting it all.

About the Author:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News he blogs at Twitter: @dcodrea and Facebook.

https://www.firearmsnews.com/editorial/looking-bruen-gift-horse-in-the-mouth/462313