NEW: A federal court last week declared that CA's law requiring background checks for ammunition purchases violates the Second Amendment.

No matter their merits, Bruen's historical test makes innovative approaches to gun regulation impossible.

michellawyers.com/wp-content/upl… One of the pernicious effects of Bruen is that--in the name of reducing judicial discretion--it expands that discretion immeasurably. Courts can now hide behind historical inquiry in making discretionary judgment calls, like arbitrarily setting the time period as here.

Arguments in Rahimi has begun.

The SG begins by focusing on the problems of combining guns and DV, the narrowness of 922(g)(8), and the history & tradition of disarming those whose access to guns poses danger. Thomas with the first Q: what is law-abiding responsible?

Prelogar: two principles. the responsible part means "pose unusual danger beyond the ordinary citizen"

Wow! Last week, Trump-appointed Judge Immergut upheld Oregon's new large capacity magazine (LCM) ban & permit-to-purchase law agnst 2nd Amendment challenge after a week-long bench trial in a 122-page(!) opinion.

It is incredibly thorough. Follow along 🧵

https://t.co/vyOSLYckxmstorage.courtlistener.com/recap/gov.usco…
One notable thing at the start is she makes *fact findings* abt the history & tradition, as opposed to mere legal conclusions. Generally a fact-finder's conclusions abt fact matters get lots of deference on appeal, but courts haven't typically treated historical facts like that.

🚨🚨🚨SCOTUS just granted cert to hear whether the 2nd Am prohibits govt from temporarily disarming those under domestic violence restraining orders, as the 5th Cir held in Rahimi. Will be an absolute blockbuster case.

supremecourt.gov/orders/courtor… I went through the most central aspects of the 5th Cir's decision in the embedded thread here. I think the decision was bad & wrong, but even worse, it's not indefensible under Bruen. And *that* is the real problem.

https://twitter.com/JacobDCharles/status/1621236459842981888?s=20

SCOTUS just distributed the cert petition for the 5th Circuit's egregious Rahimi decision that said the 2nd Am invalidates the fed law barring those under domestic violence restraining orders from having guns.

I think this is a likely cert grant.

supremecourt.gov/search.aspx?fi… One q, tho, is *when* we might expect to see a grant. SCOTUS could conceivably grant cert before the end of the Term. But the 3d Cir's recent decision creating a circuit split on the felon law may make it one the Court wants to consider together w/ Rahimi

https://twitter.com/JacobDCharles/status/1666134384427282432?s=20

🚨 We've been long waiting on the 3rd Cir's en banc ruling in a 2nd Am case abt the felon-in-possession ban. It's the first post-Bruen en banc 2nd Am ruling--the ct concludes it's unconst'l to permanently disarm at least some w/ felony convictions.

www2.ca3.uscourts.gov/opinarch/21283… Range is a sympathetic plaintiff. He had a decades-old conviction for making false statements to obtain food stamps. According to the terms of federal law, that disqualified him from owning guns for life, even tho the violation was labeled a misdemeanor under PA law.

🚨 Really consequential decision from an all R-appt 8th Circuit panel REJECTING a 2nd Am challenge to the felon-in-possession law, even for nonviolent crimes. This is the 1st precedential decision from a fed appeals ct on this law (one prior was vacated).

media.ca8.uscourts.gov/opndir/23/06/2… Here, the def't had prior drug convictions & argued that the 2nd Am permits prohibiting gun possession only for dangerous people & he didn't qualify.

The court disagreed citing the 2 competing views: (1) all lawbreakers can be disarmed, or (2) only dangerous ones can.

🧵NEW: In a short essay to be published in @StanLRev Online, I write about how past discriminatory gun laws should be dealt with in the history-only framework Bruen established for 2nd Am claims.

Still a work in progress, so comments welcome!

SSRN: papers.ssrn.com/sol3/papers.cf… The fact these laws take on such outsized importance is due to Bruen's method. & that's reason to criticize it. Bruen creates a bind for govt lawyers in some cases: either allow laws to be struck down or rely on heinous laws. To emphasize, Bruen is why we have this dilemma!

NEW: In mammoth (sized) opinion, with a 3 page table of contents, fed court strikes down portions of New Jersey's post-Bruen law on Second Amendment grounds.

documentcloud.org/documents/2381… The court *does* uphold a number of the challenged provisions, including some of the new disqualifying categories--noting that history (as ugly as it may be) supports some categorical disarmament. It's gross that Bruen demands reliance on these laws, but I agree it does.

Wow this @AndrewKoppelman piece is pure 🔥🔥

🧵with some highlights, starting w/ this bleak assessment of where Bruen's 2nd Am leads:

"The tree of liberty must be refreshed from time to time with the blood of kindergarteners."

papers.ssrn.com/sol3/papers.cf… "In many of the cases... 'tradition' is so malleable that it has no independent capacity to influence the outcome of cases. There is a method, but it consists in the deployment of traditionalist rhetoric to clear away obstacles to the destination that the Court desires to reach."

Interesting new SDWV case upholding mental health-based gun bar in 922(g)(4) against 2nd Am. challenge.

The court addresses several growing questions about how to conduct the Bruen analysis at both stages of the inquiry.

Op: documentcloud.org/documents/2380… The court accurately describes the new test as a two-step approach--despite Bruen's statement that the prior two-step approach was "one step too many." There are just two irreducible inquiries Bruen demands.

NEW: A California intermediate appellate court upholds the state’s assault weapons ban post-Bruen, holding that such weapons aren’t protected “arms” under the Second Amendment.

courts.ca.gov/opinions/docum… Interestingly, the court notes that the legislature found when it first banned the weapons in 1989 they were not in common use for self defense & since they’ve been prohibited ever since, are still not in common use in CA today.

Welp another law generates diametrically opposed district court ops. This one strikes down; two prior IL fed courts upheld (which this court doesn’t even mention??).

Bruen as Rorschach Test. It can lead a judge anywhere she wants, but certainly ain’t leading to predictability.

https://twitter.com/mikesacksesq/status/1652178219603312640

By the by, this is *the entirety* of the court’s engagement with the historical tradition the government introduced, which is supposed to be the heart of Bruen’s test. 🤷‍♂️

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)

tmsnrt.rs/40zBCZk 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.

#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.

firearmslaw.duke.edu/2023/03/by-the… 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.

📶That spreadsheet is available here 👇

firearmslaw.duke.edu/wp-content/upl…

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

storage.courtlistener.com/recap/gov.usco… 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’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.

📈
This edition has charts showing Bruen’s effects!
📊

papers.ssrn.com/sol3/papers.cf… 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.

🚨 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. 🚨

Petition: bit.ly/42nZy36 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.

1/ There's a lot to chew on in this thoughtful post by Barnett & Lund about pitfalls of Bruen's new test, and I agree with parts of their critique.

But I want to highlight two problems I see with their proposal for a replacement 🧵

lawliberty.org/implementing-b… 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.

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.

assets.nationbuilder.com/firearmspolicy… 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.