Armed with the Supreme Court’s latest gun rights ruling on the right to carry guns for self-defense, Second Amendment activists are rushing to lower courts to challenge laws ranging from age restrictions on buying handguns to banning types of firearms.
Targets include laws that existed before last month’s ruling in New York State Rifle & Pistol Association v. Bruen, and the new laws that Democratic-led states rushed to enact following the 6-3 decision, which overturned New York’s restrictions on issuing concealed carry permits.
“This is just the beginning of what will likely be a tsunami of litigation from plaintiffs focused on gun rights,” said Mark W. Smith, Second Amendment expert and scholar at Ave Maria School. of Law.
“Just as Brown v. Board of Education was a landmark moment in dismantling the Jim Crow system of ‘separate but equal’ and securing equal rights, Bruen is also a landmark case that will pave the way for a fuller vindication of our civil rights under the Second Amendment,” Smith said.
It’s easy to see why gun rights supporters are excited.
The court struck down the New York law and similar laws in five other states that had imposed conditions on concealed weapons permits, sparking what activists expect will be a stampede by gun owners to demand permits.
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But Justice Clarence Thomas’ opinion also served as a legal lecture to the judges, telling them to start taking the High Court’s Second Amendment case law seriously.
He said the test courts must apply is whether a gun restriction would have made sense to the founding generation that crafted and ratified the Second Amendment. Otherwise, the law must give way to the Constitution, he wrote.
Judge Thomas said the lower courts invented a two-part test, looking at history and then balancing that against the states’ own reasons for enacting purchase bans.
“Despite the popularity of this two-step approach, it’s one step too many,” he said.
The Second Amendment Foundation has already asked a federal judge to use this historic one-step test in a case challenging a federal ban on the purchase of handguns by people under 21. The foundation said that historically it was legal for 18-year-olds to own firearms.
“The text, history and tradition all uniformly indicate in this case that 18 to 20 year olds have equal rights with other adults with respect to firearms, including the right to purchase them, and the government has failed to point to any sufficiently ingrained analogous historical restrictions that would bring this case outside the scope of Second Amendment protections,” the group argued in its case, Reese et al. v. BATFE. .
Similarly, the Firearms Policy Coalition points the finger at Bruen in its case filed this week against New York’s assault weapons ban. Although a lower court upheld the state law, the group argues that Bruen should change the court’s legal analysis.
“There is no constitutionally relevant difference between a semi-automatic handgun, a shotgun and a rifle. Although some exterior physical attributes may differ – wood versus metal stocks and furniture, number and/or placement of grips, having a bare muzzle or having muzzle devices, different barrel lengths, etc. – they are, in all relevant respects, the same,” the group argued in its complaint.
“As a matter of law, any regulation prohibiting the possession of everyday firearms for lawful purposes such as self-defense is inconsistent with the history and tradition of this nation.”
Democratic-led states are pushing back against the Supreme Court’s decision.
California Governor Gavin Newsom this week signed legislation allowing victims of gun violence, as well as state and local government agencies, to file civil liability lawsuits against gun manufacturers.
In New York, lawmakers responded to the Supreme Court’s decision on concealed carry permits by passing a new law declaring much of the state to be gun-free sensitive locations. Permit holders should also seek permission before entering private property.
And those applying for permits should provide information on social media accounts.
Carl Paladino, a New York State candidate for Congress, sued to stop the new law.
“Apparently the New York Democrats did not read the portion of Judge Thomas’ opinion where he said, ‘The constitutional right to bear arms in public in self-defence is not a second-class right, subject to an entirely different set of rules than the other guarantees in the Bill of Rights. This new law attempts to address Second Amendment rights in a way that would be unthinkable in the context of First Amendment rights,” Paladino said.
He said he was ready to fight all the way to the Supreme Court.
Legal experts have said it could be a while before judges face such a high-profile Second Amendment challenge again.
Prior to last month’s decision, it had been more than a decade since judges had issued their decisions in the Heller and McDonald cases which established a personal right to bear arms.
“Generally, the court is of the view that it leaves even important legal issues to the lower courts to decide in the first instance,” said Eugene Volokh, a professor at UCLA Law School. “It takes time for a new case to come up.”
• Stephen Dinan contributed to this report.