We’re talking with California Rifle & Pistol Association head and Second Amendment attorney Chuck Michel on today’s Bearing Arms’ Cam & Co, who says he’s feeling pretty good after hearing Wednesday’s Supreme Court oral arguments in a case challenging New York’s subjective carry permitting laws. In fact, he’s hoping that the Court’s upcoming opinion will open the door for major challenges to many of California’s infringements on the right to keep and bear arms.
While SCOTUS is looking at New York’s “may issue” carry laws, one of the hugely important aspects of this case is the fact that many court watchers believe the justices will also address the standard of review that should be used by lower courts in determining the constitutionality of gun control laws. At the moment, most courts have adopted an “intermediate scrutiny” test that allows for almost any restriction imaginable to be upheld as long as the government argues that it has a compelling public safety need for the law and that the infringements have been “narrowly tailored” and not applied broadly. In some cases the “narrow tailoring” hasn’t been narrow at all, as when the Second Circuit used intermediate scrutiny to determine that bans on modern sporting rifles and “high capacity” magazines don’t infringe on the Second Amendment.
Michel is hoping that instead of intermediate or even strict scrutiny, a majority of justices on the Court will instead adopt a “history, text, and tradition” test when it comes to weighing the constitutionality of gun laws; a move that’s been favored by justices Brett Kavanaugh and Amy Coney Barrett in the past, and something that was a big topic of discussion during oral arguments on Wednesday.
“What text, history, and tradition does is say ‘well, what was that original policy decision that the original framers, the Founding Fathers had?’ I mean, they had these internal debates about whether or not these policies would be effective or not, and they decided it doesn’t matter; the right trumps that. So what will happen, I think, is that we’re going to have this switch from ’empirical analysis’ to ‘historical analysis.”
That means, according to Michel, that Second Amendment activists may soon be dealing with junk history instead of junk data, but if the Court does formally adopt a “history, text, and tradition” standard it also opens the door to revisiting the constitutionality of many of the gun control laws on the books in states like California that may have been previously upheld under an “intermediate scrutiny” standard of review.
“We [the California Rifle & Pistol Association” are building a war chest. My firm will be filing multiple lawsuits, not only in California but nationally once we get this hard reset and we can challenge some of this stuff that’s been sorely needed in court for a long time.”
That means that issues like microstamping, California’s attempt to ban gun shows on state-owned property like the Orange County Fairgrounds, and even pending cases like the challenge to California’s background checks on ammunition sales (and a corresponding prohibition on bringing ammunition purchased out-of-state into California) could all be impacted by the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. And of course, a good decision from the Court could also mean big changes to California’s “may issue” carry laws, which aren’t much different from the New York laws currently under review.
Be sure to check out the entire interview with Chuck Michel in the link above, and visit the California Rifle & Pistol Association as well as the 2nd Amendment Law Center run by Michel and fellow 2A attorney and scholar Stephen Halbrook.