Should we be concerned about SCOTUS and the Second Amendment?

California Rifle & Pistol Association head Chuck Michel and I touch on a lot of topics on today’s Bearing Arms’ Cam & Co, but perhaps none as important as yesterday’s decision by the Supreme Court to allow the ATF’s rule on unfinished frames and receivers to be enforced while the legal challenges to the rule continue.


How concerned should gun owners be by that decision? Michel doesn’t think this is the end of the world or a signal that the Court is moving away from its prior opinions in Heller, McDonald, and Bruen, at least in part because Vanderstok v. Garland isn’t technically a Second Amendment case at all (instead, it challenges the ATF rule as a violation of the Administrative Procedures Act, not on Second Amendment grounds). The longtime Second Amendment attorney cautions against reading too much into yesterday’s decision, but he does acknowledge that Chief Justice John Roberts and Justice Amy Coney Barrett’s choice to allow the rule to be enforced could indicate that they’re getting  “wishy-washy” on some of the cases coming before the Court.

In my post on the SCOTUS decision yesterday, I pointed out that the Court had previously declined to intervene in emergency appeals against New York’s post-Bruen carry laws as well as Illinois’ ban on “assault weapons” and “large capacity” magazines, but Michel reminded me that in the Antonyuk case dealing with New York’s carry laws the Court did instruct the Second Circuit not to delay or waste time in issuing its own decision, and that rebuke helped speed up the Seventh Circuit’s own schedule on the half-dozen lawsuits surrounding Illinois’ prohibitions. The net result of the Court’s actions may have given gun control activists a win in the short term, but that’s no guarantee of victory when these cases arrive at SCOTUS’s doorstep on a non-emergency basis.


I’d say Michel is still more concerned about lower courts abusing the Bruen decision just like they did with Heller than the idea that the Supreme Court is shying away from the implications of Bruen, but he pointed to another decision handed down on Tuesday as an example of a judge properly applying the “text, history, and tradition” test laid out by the Court in Bruen. U.S. District Judge Leslie E. Kobayashi granted a temporary restraining order against most of the challenged “gun-free zones” established by Hawaii lawmakers in the wake of the Bruen decision, including the default ban on private property accessible to the public.

As Michel noted, Hawaii’s not the only state to try to impose that restriction on lawful concealed carry holders. In fact, it’s become standard practice in states hostile to our Second Amendment rights, but Michel says he and other 2A attorneys will now be able to point to Kobayashi’s holding that the restriction likely violates the right to keep and bear arms as they challenge those identical restrictions in other states. In fact, Michel is even hopeful that Kobayashi’s opinion might even sway a few California lawmakers, who are currently considering that prohibition (and many others) in SB 2. It would be miraculous if the judge’s order granting a TRO was enough to persuade anti-gun Democrats to reject that particular gun-free zone (or any others), but at the very least it puts lawmakers on notice that the courts won’t look kindly on their attempt to turn the state into one big “sensitive place” off-limits to the right to carry.


Check out the entire conversation with Chuck Michel in the video window below, and to stay up to date on all that’s going on with California’s gun laws be sure to subscribe to alerts from CRPA here.

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