With more than fifty active cases at the moment, I’m thrilled that Cody J. Wisniewski, FPC Action Foundation General Counsel and Vice President of Legal, could carve out a few minutes of his day to join me on today’s Bearing Arms’ Cam & Co. Our wide-ranging discussion hits on everything from the upcoming Rahimi case to the Bruen response bills introduced in blue states across the country, as well as why Wisniewski is optimistic about the future of our right to keep and bear arms despite the flagrant and continued abuses taking place from California to New Jersey.
“We’ve seen significantly more victories after Bruen than we saw after Heller. More in one year than in the year after Heller,” Wisniewski explains.
“Bruen really just told the lower courts ‘hey, you know what we said in Heller? We really mean it. That’s what we really want you to be doing.’ And so I think that reiteration has really helped us, at least in some courts. The other side is yes, we’re seeing bad history. We’re seeing judges pointing to statutes that aren’t analogous, statutes that shouldn’t be informing the analysis, but what’s important is that they have to tangle with the history. We’ve stepped into a new era where Second Amendment litigation is in the realm of originalism. The original public meaning of the Constitution, the original public meaning of the Second Amendment; what those words meant when they were drafted and ratified in 1791, so even the courts that are coming out and making bad analogies and upholding some of these laws that should be struck down as unconstitutional are forced to tangle with the history, forced to do originalism, and they’re forced to put their cards on the table.”
Wisniewski says in the period between Heller and Bruen, courts routinely looked beyond the Constitution to social sciences and interest-balancing tests that far too often tipped the scales in the government’s favor at the expense of our individual rights. Even though we’re still seeing some judges make bizarre assertions that modern sporting rifles and other items labeled “assault weapons” by legislators are “unusually dangerous” and therefore fall outside the Second Amendment’s protections, Wisniewski believes that Bruen has been a big step in the right direction.
“We’re moving more and more towards a place where we’re having the right conversation. It’s easy to get disheartened when you see orders come out of certain courts that are so obviously bad, but what I’d like people to take away is that we are trending in the right direction. There are good things happening. We’re getting injunctions, we’re striking down laws, we’re tallying up wins. Every federal ATF rule that has been published in the last ten years; the bump stock ban, the frame and receiver rule, and the pistol brace rule have all been in some way either struck down or enjoined. And that’s massive.”
Wisniewski notes that the gun laws FPC and other 2A groups are challenging didn’t spring up overnight, but are the result of a decades-long campaign to undermine and ultimately obliterate our Second Amendment rights. Similarly, it’s going to take time to unwind these unconstitutional infringements, but he believes a decade from now the right to keep and bear arms is going to be far more secure than it is today.
“You can already see it. Just look at concealed carry. Look at a map of what concealed carry laws were like in the 1980s. Just about every state in the country outright banned it. Some states had super-restrictive permitting processes, but it was really difficult to conceal carry in the 1980s. And now today we’ve got what, 27 states that are free carry states where as a matter of your right you can carry a firearm in the manner that you see fit so long as you’re not a prohibited person. That’s a huge shift over just 40 years, and that’s what we’re seeing.”
I don’t think it’s going to take another four decades for the courts to start treating the Second Amendment as the fundamental right that it is, and I believe that Wisniewski is right when he says that process is already underway. Yes, there will undoubtedly be setbacks and disappointments along the way, but as long as Bruen isn’t overturned by a Supreme Court packed full of anti-gun justices the decision will ultimately mean doom and defeat for the gun control lobby’s fundamental premise: the eradication and criminalization of our right to keep and bear arms.