This is a news story from USA Today, so ostensibly its reporting is supposed to be non-biased, but I detect a noticeable scent of anti-gun ideology wafting from the paper’s new report on the growing number of legal challenges to gun control laws that are coming from Second Amendment organizations. Let’s start with the paper’s premise that these lawsuits “could soon dramatically reorder the nation’s relationship with firearms,” as opposed to simply restoring the right to keep and bear arms in places where it’s currently being infringed.
The combined court fights so far have tallied nearly 20 interim or final victories. The cases overturned COVID-19 pandemic-related shutdowns of firearm registration systems, knocked down gun licensing prohibitions for residents of public housing and prospective foster parents, and enabled permanent legal residents to seek firearms licenses.
Representatives of two of the groups pursuing the lawsuits said the court challenges are necessary because restrictions on the Second Amendment are unconstitutional. Each firearms control measure represents a step toward the “goal of taking away guns,” said Michael Hammond, the legislative counsel for Gun Owners of America.
“The numbers of authoritarian regulations are increasing, and we’re there to fight them,” said Dan Dement, communications director for the Firearms Policy Coalition, another group pursuing the lawsuits. “Thankfully, we do have a legal system where we can pursue justice against infringements of our natural rights.”
The wave of gun rights cases also dovetails with the strategy in which conservative organizations have helped more like-minded judicial nominees become federal court judges and weigh Second Amendment challenges, said Adam Skaggs, chief counsel and policy director of the Giffords Law Center to Prevent Gun Violence.
“These are troubling times for Americans who are trying to fight gun violence,” said Skaggs, who contends some judges take an excessively broad view of Second Amendment protections. “Our entire history of regulating firearms is being challenged.”
Challenging gun control laws is nothing new, of course. What really has Skaggs and other anti-gun activists so hot and bothered is the fact that the gun prohibitionists aren’t likely to come out with many wins, at least if the Supreme Court puts a stop to lower court judges egregiously misreading and in some cases blatantly ignoring what the Court has actually said about our Second Amendment rights in cases like Heller and McDonald. With the Supreme Court set to announce its decision in the Bruen case dealing with the right to carry later this year, the gun control lobby is terrified that the federal judiciary may soon serve to be a real check on their schemes.
As to who is filing the bulk of these lawsuits, the USA Today reporters seemed surprised to learn that it wasn’t the NRA, which has initiated 12 of the more than 90 lawsuits filed in federal court between 2016 and 2021. Instead, both the Second Amendment Foundation and Firearms Policy Coalition have taken the lead in approximately 65 of the cases. Other groups, including the California Rifle & Pistol Association, the New York State Rifle & Pistol Association, have also initiated lawsuits but have been supported by national groups, either directly or through amicus briefs.
When it comes to reporting on the potential impacts of these lawsuits, USA Today decided to give the final word to gun control activists.
One gun rights legal group, the Second Amendment Law Center, hopes the case now awaiting a Supreme Court decision – the challenge to New York’s requirement that people seeking to carry concealed handguns outside their home show good cause – will include a framework that spells out how pending and future such cases must be handled by courts.
If that happens, “it will be a lot harder for courts to let their biases influence their decisions by applying the wrong standard of review,” said C.D. Michel, who is the group’s president and senior legal counsel, as well as president of the California Rifle and Pistol Association.
However, a Supreme Court ruling that requires courts to hold stricter reviews of Second Amendment challenges could rule out evidence that a given restriction provides benefits, such as fewer incidents of shootings, said Josh Horwitz, executive director of The Educational Fund to Stop Gun Violence. That means federal courts would be more likely to rule that firearms restrictions violate the Second Amendment.
Courts should be permitted to “consider evidence that the restrictions work, from a public health perspective,” said Horwitz.
It doesn’t surprise me that Horwitz believes that the word of anti-gun researchers should trump the plain text of the Constitution, but I’m pretty confident that his views aren’t in line with a majority of the Supreme Court justices. That doesn’t mean that gun owners are guaranteed a win in every 2A challenge we bring to the courts. Heck, it doesn’t even guarantee that the Supreme Court will take every case that comes before the justices. But in the long run gun owners are likely to be far more successful than the gun prohibition lobby when it comes to these court cases, not only because the current makeup of SCOTUS will hopefully soon deliver clear and concise standards of review for lower courts to follow, but because we have the Constitution and the Bill of Rights on our side.
