#ICYMI Earlier this week, I wrote a post @DukeFirearmsLaw laying out some of my findings from an in-depth review of the 174 Second Amendment fed court decisions issued in the first 8 months after Bruen came down. It showed huge effects in the aftermath.
I also made public the spreadsheet I used to categorize these cases, so folks could check my math & see the type & variety of claims coming down & how I classified each of them.
Add another to the pile of laws laid waste by Bruen. Today, a district court struck down MN’s requirement that a person be 21 to get a handgun carry permit, ruling that the Second Amendment forbids this kind of age restriction. (h/t @DruStevenson)
The court has an interesting discussion on the first, plain-text prong. Bruen left this step unspecified, but the court here points out several ways to conduct the inquiry.
The court notes that the plain text prong has generated some disagreement among courts. But here it concludes those under 18 fall within the plain meaning of “the people” based on a comparison to other rights, militia laws, lack of an express age limit, & Heller’s dicta.
NEW: CA fed court says the state's Unsafe Handgun law violates the Second Amendment. The state can't impose novel safety features, like indicators a gun is loaded, a mechanism disabling the gun from firing when a magazine is removed, or microstamping. /1
The law imposes reqs on new handguns that no other state imposes. I'm sympathetic to the burden these reqs place on purchases of new guns, but I'm still not sure how the court concludes this conduct is so clearly protected by the "plain text" of the 2A's wording. /2
I agree w/ the argument that these laws implicate the 2nd Am, I just am not sure how one can read the 2A and conclude that the *plain language* protects "purchasing state-of-the-art handguns on the primary market." 🤷♂️
That (to me) is a problem w/ Bruen's initial prong. /3
🧵I’ve just posted to @SSRN an updated version of my article on the Court’s 2nd Am decision, “The Dead Hand of a Silent: Bruen, Gun Rights & the Shackles of History,” forthcoming w/ @DukeLawJournal.
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This edition has charts showing Bruen’s effects!
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I reviewed all adjudicated 2nd Am claims in federal court in the first 8 months after Bruen & found remarkable disruption. 174 decisions weighed in on 2A claims & a surprising amount of them--21 by my count--concluded the state action violated the 2A.
B/c some of these decisions included multiple different claims, I broke out the #s and success rates by claims themselves. Here, 31 claims prevailed out of 212 total claims adjudicated. (See the paper, pp. 45-48, for classification details & caveats.)
🚨 Acting on a "a highly expedited schedule," DOJ has asked the Supreme Court to review the Fifth Circuit's ruling in US v. Rahimi that invalidated the federal law barring those under domestic violence restraining orders from possessing guns. 🚨
If the Court does agree to hear the case, which seems like a real possibility, we could have our first post-Bruen test of how aligned the conservative justices are over the scope of the 2nd Am & the breadth of Bruen's test.
This is the case where the judges on the 5th Circuit declared that our ancestors would have considered it unthinkable to ban guns from domestic abusers--& therefore modern regulations doing so are unconstitutional. Here's my earlier threads on the case. 👇
2/ As Barnett & Lund note, Bruen mandates a history-only test. I have no doubt they are right about the motivations for the majority's imposition of the test, and they are surely right that Bruen itself didn't consistently apply this metric to laws it approved.
3/ I find it curious, however, that they exemplify the problems with Bruen's new test not by pointing out the surprising # of lower court ops striking down laws that had been broadly held to be const'l pre-Bruen (felon indictment, DV prohibitors, etc.), but focus on 1 upholding.
Looks like we're going to get a new Supreme Court ruling on the Second Amendment sooner rather than later because this new Fifth Circuit ruling strikes down the federal law prohibiting firearm possession by those subject to DV restraining orders.
Only one other court of appeals has issued a published decision on the 2nd Am post-Bruen, and that decision was vacated when the court took it en banc. This one will likely have broad impact.
The Court's discussion about how to understand who's protected as part of "the people" is an interesting one.