Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
In a sweeping action that could send shudders through the gun prohibition lobbying groups and their allies on Capitol Hill, the U.S. Supreme Court on Thursday granted writs of certiorari to four pending Second Amendment cases, vacating lower court rulings and remanding those cases back for “further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen.”
According to the Associated Press, the cases “include ones about high-capacity magazines, an assault weapons ban and a state law that limits who can carry a gun outside the home.”
Possibly the most important of the four are Bianchi, Dominic, et.al. v. Frosh, the Maryland case challenging a ban on so-called “assault weapons” that could determine whether modern semi-auto rifles are protected by the Second Amendment, and Duncan v. Bonta, the California case challenging that state’s ban on so-called “large capacity magazines” that hold more than ten cartridges.
The Bianchi case was brought by the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, Field Traders, LLC, and the Firearms Policy Coalition, and three private citizens.
The Duncan case was brought by the California Rifle & Pistol Association, Inc., and five private citizens.
What apparently caused this stunning high court action was language in the New York case, written by Justice Clarence Thomas, that put the brakes on the use of a “two-step” test manufactured by Courts of Appeals “to assess Second Amendment claims.”
Under this structure, “At the first step, the government may justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood,” according to the Supreme Court ruling written by Justice Clarence Thomas.
“At the second step,” Thomas continued, “courts often analyze ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.’ The Courts of Appeals generally maintain ‘that the core Second Amendment right is limited to self-defense in the home.’… If a ‘core’ Second Amendment right is burdened, courts apply ‘strict scrutiny’ and ask whether the Government can prove that the law is ‘narrowly tailored to achieve a compelling governmental interest.’…Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is “substantially related to the achievement of an important governmental interest.”
But Thomas rejected that structure, stating, “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.”
Translation: The “two-step” process doesn’t wash.
Alan Gottlieb, SAF founder, and executive vice president, issued a statement following the high court’s mass remand.
“The importance of Justice Clarence Thomas’ majority opinion in the New York right-to-carry case may not be fully understood until all of these other cases have gone through lower court review,” he observed. “What we’re seeing today could be the beginning of court actions that eventually fully restore rights protected by the Second Amendment.”
He noted SAF attorneys are now reviewing earlier cases that resulted in bad rulings or were denied review by the high court “to determine which ones can be re-filed for further action based on the high court ruling in Bruen.”
“It is also important,” Gottlieb observed, “that the high court granted all writs of certiorari in these Second Amendment cases as they were being remanded back for further review. That tells me we have a Supreme Court willing to rein in lower court activism and limit how far they will allow local and state governments to reach when it comes to placing burdens on the exercise of a fundamental, constitutionally-enumerate right to keep and bear arms.”
He may not be far off the bullseye. Lower courts have now been advised they need to consider Second Amendment cases following the principles set down in the Thomas opinion. It puts full gravity on Thomas’ observation that the right to bear arms enshrined in the Second Amendment “is not a second class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”
Thursday’s mass remand also tells the lower courts these cases will be acceptable for high court review should they come back.