I was hoping that after last Thursday’s historic decision in New York State Rifle & Pistol Association v. Bruen the Supreme Court might choose to put an exclamation point on its opinion by granting cert to at least one of the four Second Amendment-related cases that have been pending in conference, but instead the justices are keeping those cases in conference for at least another week.
Is this something to be concerned about? Not necessarily. Over at SCOTUSblog, reporter Amy Howe reminded readers that while last week “was the court’s last *scheduled* conference, but the court traditionally holds what we call the “clean-up conference” after all of the opinions have been issued — whenever that is, because the court has not yet announced when that day will be.”
This week will likely mark the release of the last cases of this term, so maybe we’ll see the Court take action on these four cases in the “clean-up” conference. I have a hard time with the idea that the justices are going to let these four cases dangle in the wind for several more months, especially when they don’t have to grant cert but can simply remand all of the cases down to the lower courts with instructions to follow the “text, history, and tradition” test laid out by Justice Thomas in the Bruen opinion last week.
Two of the four cases currently in legal limbo deal with bans on so-called large capacity magazines; Duncan v. Bonta takes on California’s ban while Association of New Jersey Rifle & Pistol Clubs v. Platkin challenges a nearly identical law in New Jersey. Both laws require existing owners of magazines that can hold more than ten rounds of ammunition to either permanently modify them, hand them over to law enforcement, or remove them from their possession. The third case is Bianchi v. Frosh, which argues that Maryland’s ban on “assault weapons” is unconstitutional, while the final case (Young v. Hawaii) challenges that state’s “may issue” policy for granting permits to openly carry a firearm.
In all of these cases the appellate courts (and the state Attorneys General defending the laws) relied on the interest-balancing test rejected by SCOTUS in Bruen, arguing that government could ban these commonly-owned magazines because of a public safety interest, even though the laws implicate the Second Amendment rights of law-abiding gun owners. The Court rejected that test in both the Heller and McDonald cases dealing with bans on handguns in the home, but Thomas was even more explicit about the criteria lower courts should use to evaluate the constitutionality of gun control laws in Bruen.
The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.”
To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry.
If the lower courts abide by the SCOTUS ruling (a big “if”, to be sure) then there’s not much doubt about the ultimate outcome of these cases. The Court has certainly hinted that semi-automatic rifles and 10+ round magazines, which are both in common use today, are protected by the Second Amendment, and it’s hard to point to any sort of comparable ban in either the text or the tradition of the Second Amendment. No state banned revolvers or repeating rifles when they first came on the market, even though they represented huge technological advancements in terms of both capacity and the rate of fire. It wasn’t until the last 30 or 40 years that the gun control lobby convinced blue state lawmakers to impose these types of bans, which are still the exception and not the rule when it comes to state-level gun control laws.
I continue to hope that the Supreme Court will grant cert to one or more of these cases, though the most probable outcome is that the Court ends up remanding all of these cases back to lower courts for further review. We’ll be anxiously awaiting the Court’s orders from its “clean-up conference”, and we’ll also be getting the thoughts of California Rifle & Pistol Association president and Second Amendment attorney Chuck Michel later today when he joins Bearing Arms’ Cam & Co to talk about the impact of the Bruen decision on California’s many anti-gun statutes.