Supreme Court ruled Bruen methodology (Text/history/tradition - burden shifting to states) as law of the land, how will this apply to future 2A cases?

[Mk-211]

I want to see open carry of swords make a comeback.

That's the thing, in CA you can! Just shows how ridiculous the laws are, when it comes to knives and firearms.

 

[LiveLife]

Bruen methodology of "Text, history and tradition" with burden shifting to the states/government continuing to spread to other cases as demonstrated by recent lower case rulings like for post #121 non-resident carry for CA and post #122 switch blade carry for MA.

Now major 2A win from the 9th Circuit affecting "sensitive places" carry for CA and Hawaii ( Somebody pinch me. ).

"The panel concluded that the proper approach for determining whether a place is sensitive is as follows:​

​

For places that have existed since the Founding, it suffices for Defendants to identify historical regulations similar in number and time frame to the regulations that the Supreme Court cited as justification for designating other places as sensitive. For places that are newer, Defendants must point to regulations that are analogous to the regulations cited by the Supreme Court, taking into account that it is illogical to expect a government to regulate a place before it existed inits modern form. Historical regulations need not be a close match to the challenged law; they need only evince a principle underpinning our Nation’s historical tradition of regulating firearms in places relevantly similar to those covered by the challenged law."​

Ninth Circuit Deals Blow to California Gun Carry Ban - https://www.firearmspolicy.org/ninth-circuit-deals-blow-to-california-gun-carry-ban

Firearms Policy Coalition (FPC) announced today that the Ninth Circuit Court of Appeals issued a decision partially upholding FPC’s previously secured preliminary injunction against California’s Senate Bill 2 (SB 2) ban on firearm carry in public. The opinion in Carralero v. Bonta can be found at firearmspolicy.org/carralero.​

​

“This partially favorable decision from the Ninth Circuit shows how far we’ve come over the past decade. But this case, and our work to restore the right to bear arms, is far from over. FPC will continue to fight forward until all peaceable people can fully exercise their right to carry in California and throughout the United States,” said FPC President Brandon Combs.​

​

FPC was joined in Carralero by three individual FPC members, Orange County Gun Owners PAC, San Diego County Gun Owners PAC, and California Gun Rights Foundation. Carralero was decided together with Wolford v. Lopez and May v. Bonta. FPC thanks and congratulates the Wolford and May parties and their counsel for their work to defend the right to bear arms.​

Mark Smith from Four Boxes Diner discuss the ruling

9th Circuit issues major gun-free zones rulings in California and Hawaii - https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/06/23-4354.pdf

The US Court of Appeals for the Ninth Circuit issued a major ruling today in Wolford v. Lopez involving sensitive places laws in Hawaii and California. Mark Smith Four Boxes Diner analyzes.​

​

0:00 Major Breaking News!​

1:05 Case Background & Details​

3:02 The Good News (2A Wins)​

4:30 This Was All Over The Place...​

6:25 The Comprehensive Security Standard & What We Lost...​

8:42 This Court Didn't Do the Work!​

11:14 What I Would Do...​

13:30 Thank You!​

BREAKING 2A NEWS: FEDERAL APPEALS COURT ISSUES MAJOR GUN-FREE ZONES RULINGS IN CALIFORNIA & HAWAII

The US Court of Appeals for the Ninth Circuit issued a major ruling today in Wolford v. Lopez involving sensitive places laws in Hawaii and California. Mark ...

www.youtube.com

 

[Insignificant bill]

The ruling should have been all gun control violates the Constitution. Nothing in the 2nd about History or any other nonsense.

 

[ilbob]

The ruling should have been all gun control violates the Constitution. Nothing in the 2nd about History or any other nonsense.

I think in the long run you do better with this approach because you can't use it to create all kinds of rights out of thin air. The approach targets rights that were acknowledged at the time the constitution was enacted. If you want to add rights that did not exist then, you need to amend the constitution.

 

[Basura Blanca]

I think in the long run you do better with this approach because you can't use it to create all kinds of rights out of thin air. The approach targets rights that were acknowledged at the time the constitution was enacted. If you want to add rights that did not exist then, you need to amend the constitution.

Well, the ninth amendment covers that very thing, and does so very deliberately to avoid situations where rights can be "disparaged" for lack of exclusive mention.

 

[Basura Blanca]

The opinion in Carralero v. Bonta can be found at firearmspolicy.org/carralero.

​

I'll take the tiny bits of this for the baby-step victory they are, but the 9th circuit didn't deal any major blows to sensitive places.
I can't agree with the authors that this is the "proper approach" though, after looking at the scattered logic they employ throughout the decision. For example (p13):

Parks in modern form, for example, first arose in the middle of the 19th century; governments throughout the nation immediately imposed prohibitions on firearms in parks; the constitutionality of those bans was unquestioned; and those regulations are akin to laws recognized by Bruen as sufficiently representative to qualify a location as a “sensitive place.” States permissibly may prohibit firearms in most parks. By contrast, banks have existed throughout our Nation’s history, but the historical record does not demonstrate a comparable national tradition of banning firearms at banks. Applying Bruen’s guidance, we conclude that the Second Amendment likely prohibits a State from banning firearms in banks. But that conclusion is less restrictive than it may appear at first glance. As the owner or operator of private property, a bank may prohibit firearms as a matter of the ordinary property-law right to exclude.
And if a State operates a bank, the State, too, may exercise its proprietary right to exclude, just as a private property owner may.

In essence, parks are 19th century constructs which have always been universally subject to firearms bans (i.e. sensitive places) without question. Banks, not so much, therefore not sensitive places but not really because private property trumps the 2A if the owner insists and/or if the state itself operates a bank, it too is exempt/is a sensitive place by mere decree.

This isn't a win, guys. Sorry.

 

[LiveLife]

9th circuit ... I can't agree with the authors that this is the "proper approach" though, after looking at the scattered logic they employ throughout the decision.

This isn't a win, guys. Sorry.

Well, 9th Circuit 3 judge panel certainly did "mention" Bruen and tried to look like they were using the methodology of "Text, history and tradition" but like so many other states/inferior courts, continues to misinterpret and in some cases openly defy Bruen ruling.

That's why we have cases like Antonyuk v. Nigrelli now Hochul (NY CCIA defiance to Bruen ruling) where NY state openly defied Bruen ruling and the Supreme Court vacated the ruling and remanded back down for the lower court to do over - https://www.thehighroad.org/index.p...-nysrpa-v-bruen-decision.913941/post-12939568

And in contrast to 9th Circuit ruling, we also have Kipke v. Moore (MD Carry ban) consolidated with Novotny v. Moore (MD Carry ban) but I am certain the 4th Circuit will "misinterpret" Bruen ruling and methodology on appeal - https://www.thehighroad.org/index.p...-nysrpa-v-bruen-decision.913941/post-12951990

So to me, at this point in time, it really doesn't matter what anti-2A laws the states write and pass or how the inferior courts rule after misinterpreting and/or defying Bruen ruing/methodology as the Supreme Court obviously must see what's happening and chomping at the bits to clarify and EXPAND on Heller/Caetano/Bruen/Cargill rulings to "modernize" Second Amendment for 2024.

And IMO, sooner we get to the Supreme Court the better.

 

[MEHavey]

And IMO, sooner we get to the Supreme Court the better.

Make SURE it's the right case though.
and not something so incredibly ill-advised as....

United States v. Rahimi - SCOTUSblog

Independent News and Analysis on the U.S. Supreme Court

www.scotusblog.com

 

[Basura Blanca]

So to me, at this point in time, it really doesn't matter what anti-2A laws the states write and pass or how the inferior courts rule after misinterpreting and/or defying Bruen ruing/methodology...

So do you agree this wasn't a laudable approach by the court? Reading the decision, it's full of landmines.
Either way, with respect to what you're saying above, the 9th touched on this a bit indirectly (p36):

The “proper cause” requirement at issue in Bruen addressed a societal problem that had been present since the Founding, which caused the Court to apply the stricter “distinctly similar” test. Moreover, Bruen emphasized that much evidence—primarily state court decisions—weighed strongly against the constitutionality of New York’s law. In that circumstance, a few outlier statutes, especially in places with tiny populations and especially when enacted well after the Founding, did not suffice to identify a national historical tradition.
With respect to sensitive places, however, those concerns are diminished. Our Nation has a clear historical tradition of banning firearms at sensitive places. When examining whether a particular place falls within that tradition, a small number of laws, even localized laws, can suffice, if those laws were viewed as non-controversial.

We can't just throw out everything less than what the supreme court *might* be inclined to think, just because lower courts are coming up with off-the-wall nonsense we don't agree with on principle.

 

[LiveLife]

Disclaimer: I am not a lawyer, just a random layperson posting on THR.

Make SURE it's the right case though ... not something so incredibly ill-advised as.... Rahimi

Actually, as constitutional attorney Mark Smith pointed out and presented to Harvard Journal of Law & Public Policy, Rahimi was the right case to test and reaffirm Bruen ruling and methodology - https://www.thehighroad.org/index.p...apply-to-future-2a-cases.931586/post-12925764

The reason why Rahimi was the "right" case for testing Bruen is because the government wanted to take the worst violent felon case to disarm permanently "We the People" and the Supreme Court applied Bruen methodology of "Text, history and tradition" and shifted the burden to the government to come up with historical tradition evidence of disarming "We the People".

• ... Merrick Garland, this is his best shot. He lost. He lost the Bruen methodology of text first, burden shifts to the government and the government bears the burden to show a long-standing historical tradition going back to the founding of long-standing gun related regulation remains the law of the land.
• In fact, the good news is that even justice Jackson ... in her concurrence said specifically that she admits that the Bruen methodology is the law. It is binding law in the United States today ... even the liberal [justices] admit that the Bruen methodology is the law of the land.

The government FAILED to come up with historical tradition evidence of permanent disarming of "We the People", even those that are violent felons; and the Supreme Court applying Bruen methodology, ruled that even bad people, violent felons, are inclusive part of "We the People" and could not be disarmed. And only exception is when a court rules violent felons are immediately actively danger to others can they be disarmed, and then only on a temporary basis. And when the danger to others is not immediate/active, then Second Amendment right to violent felons must be restored.

Next test case is the Range case where government is trying to disarm permanently non-violent felon but I have a feeling the Supreme Court will also rule that non-violent felon is inclusive part of "We the People" and government can not disarm.

So Rahimi was the right case to test Bruen methodology and as conceded by justice Jackson, Bruen methodology is now the "binding law" of the land as "We the People" prevailed against government's attempt to permanently disarm a violent felon.

So do you agree this wasn't a laudable approach by the court? Reading the decision, it's full of landmines.

We can't just throw out everything less than what the supreme court *might* be inclined to think, just because lower courts are coming up with off-the-wall nonsense we don't agree with on principle.

I think this is where "We the People", including pro-2A gun owners really must change our way of thinking because of Bruen ruling.

Like the Supreme Court doing an about face in doing away with Chevron Deference in Loper case, the majority justices did a Thanos Snap/Blip/Decimation elimination of administrative agencies interpreting law and took that power away. Just like that, what was allowed for decades was gone in a ruling.

Similarly for decades, judicial branch accommodated the notion of interesting balancing two-step approach to 2A cases where greater good of the community/society was considered over the individual right. But with Bruen ruling, another Thanos Snap/Blip/Decimation happened and eliminated the two-step approach. Just like that, what was considered for decades was gone in a ruling.

And Bruen methodology of "Text, history and tradition" with shifting of burden to the states/government was tested and reaffirmed in Rahimi and now "binding law" of the land.

So while many inferior lower courts continue to entertain the notion of mass shootings, the "greater good of the community/society", lower courts are acting like they didn't get the Bruen memo because according to the Supreme Court, the individual 2A right now supersedes "greater good of the community/society".

I do believe we will see this clearly explained by majority justices in the next Supreme Court rulings for Second Amendment protection expanding to "modern" types of arms and accessories likely with Bianchi now Snope, Miller and Duncan, etc.

---

Like for free speech Supreme Court rulings that expanded First Amendment protection to "modern" forms of communication, we can see the progression of Second Amendment protection expanding to "modern" types of arms and accessories:

In Heller and Caetano, the Supreme Court ruled:

• Second Amendment right to keep and bear arms did not require militia/military activity
• Second Amendment protection applies to carry of operable/loaded arms in the home for self-defense purposes
• Second Amendment protection expanded to weapons “that were not in existence at the time of the founding” (Modern types of arms, including non-projectile energy weapons)
• Arms "in common use" could not be banned and in Caetano quantified as several hundred thousand

In Bruen/Rahimi, the Supreme Court ruled:

• Second Amendment protection applies to carry of operable/loaded arms outside of home for self-defense purposes
• Text, history and tradition approach now must be used for Second Amendment cases with regulation analogues (Not twins) going back to 1791 ratification of Bill of Rights
• Burden shifted to government to provide historical tradition evidence (Government lost permanent disarming of Rahimi because government FAILED to come up with historical tradition evidence of disarming "We the People", even bad violent felons)
• Supreme Court (Including liberal justices) reaffirmed Bruen methodology is now "binding law" of the land

In Cargill, the Supreme Court ruled:

• Administrative agency exceeded statutory authority designated by Congress when ATF expanded interpretation of "machinegun"

In Loper, the Supreme Court ruled:

• Administrative agencies can no longer interpret laws under Chevron Deference and Supreme Court took that power away from the executive branch and returned to judicial branch

Can you see the trend of Supreme Court confirming Second Amendment and expanding protection while limiting/reversing what the executive branch/administrative agencies were allowed to do for decades?

 

[MEHavey]

Rahimi was the right case to test and reaffirm Bruen ruling and methodology -

~~~~~~~~~~~~~~~
SCOTUS/Holding:
United States v. Rahimi
"When an individual has been found by a court to pose a credible threat
to the physical safety of another, that individual may be temporarily
disarmed consistent with the Second Amendment."

United States v. Rahimi - SCOTUSblog

Independent News and Analysis on the U.S. Supreme Court

www.scotusblog.com

M. Garland;
“The Supreme Court’s decision today in United States v. Rahimi upholds
Congress’s longstanding prohibition on the possession of firearms by
people subject to domestic-violence restraining orders. That law protects
victims by keeping firearms out of the hands of dangerous individuals
who pose a threat to their intimate partners and children.

Attorney General Merrick B. Garland Statement on Supreme Court’s Decision in United States v. Rahimi

The Justice Department issued the following statement from Attorney General Merrick B. Garland on the Supreme Court’s decision in United States v. Rahimi:

www.justice.gov

~~~~~~~~~~~~~~~

Are we reading the same ruling?
i.e., an automatic loss of 2A rights when subject to a retraining order?

To say it's a victory for Bruen kinda reminds me of the old joke
"the operation was brilliant... too bad the patient died." **
**
I do realize that legal beagles may find the SCOTUS ruling professionally fascinating....
but I would wager that most ordinary folks would find "Rahimi" to be a terrible case to
test auto-loss of 2A-vs-potentially one-sided restraining orders.

 

[LiveLife]

Are we reading the same ruling?

Yes, from the OP of this thread, the Rahimi ruling - https://www.thehighroad.org/index.p...pply-to-future-2a-cases.931586/#post-12925507

... Finally ... we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” ... “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented.​

​

... we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.​

Government tried to disarm Rahimi permanently because he was a "bad person", a violent felon. The Supreme Court rejected disarming Rahimi permanently because even violent felon is part of "We the People" and enjoy right to keep and bear arm under the Second Amendment.

Supreme Court's very narrow decision concluded "only this" ... that "We the People" could not be disarmed by the government permanently and "We the People" could only be disarmed temporarily AFTER a court found the individual an immediate threat to physical safety of another individual.

And thus Rahimi was the right test case for Bruen methodology as using "Text, history and tradition" with burden shifting to the government was reaffirmed as "binding law" of the land.

This from Mark Smith's article - https://journals.law.harvard.edu/jl...imi-reinforces-bruen-and-heller-mark-w-smith/

VI. Rahimi’s Tight Analogical Reasoning Demonstrates the Court is Fully Committed to the Heller/Bruen Framework​

​

... The Government invited the Court in Rahimi to find that Heller and Bruen established an extraordinarily broad principle or historical tradition, namely, that “[l]egislatures may disarm those who are not law-abiding, responsible citizens.” The Court rightly, and summarily, rejected that attempt to find a historical tradition based on dicta in other cases rather than close historical analysis in the case before it.​

​

... Rahimi was, therefore, a routine application of established methodology—not the shifting of the doctrinal tide that opponents of Bruen had desired. The path of the Second Amendment is now as perceptibly ordinary as that of any other constitutional right: the epochal establishment of substantive doctrine having occurred in Heller and having been explicated in Bruen, the Court applies that doctrine to different laws and circumstances. But no reading of the cases applying doctrine should be held to be in tension with the cases establishing it—least of all when the Court applying doctrine in a case understands itself, as in Rahimi, as doing so with utmost fidelity to its precedential commitments.​

 

[MEHavey]

The Supreme Court rejected disarming Rahimi permanently (emphasis added)

OK.... that parses out the relevant positive from the case.

QUESTION: How does this now play against the Lautenberg Amdm't?

 

[Basura Blanca]

And Bruen methodology of "Text, history and tradition" with shifting of burden to the states/government was tested and reaffirmed in Rahimi and now "binding law" of the land.

So no other case could've accomplished "reaffirming" this? Because I'm not even buying that we needed to reaffirm anything to make it "binding law" in the first place, simply because it already was as it stood. That's the whole point of a decision. To say Rahimi was the hamburger helper to Bruen, and necessary to make Bruen more real, is a bit rosy.

 

[LiveLife]

QUESTION: How does this now play against the Lautenberg Amdm't?

I am not a lawyer and this "General" thread discussion of THR member "layperson" opinions/comments is about Bruen methodology.

Question specific to domestic violence offender gun ban could be posed in "Legal" in a new thread or existing thread like this - https://www.thehighroad.org/index.p...at-and-outcome-of-rahimi.933518/post-12971072

 

[Basura Blanca]

OK.... that parses out the relevant positive from the case.

And it's a mere sliver of one.
Since Rahimi, there's been no shortage of decisions that accept watered down Bruen application to find historical analogues in, well, anything. This latest from the 9th, which is admittedly (of course) a hostile venue for the 2A, gives us a bunch of good examples of it. In the excerpt I posted earlier, they say in no uncertain terms that sensitive places gets a different treatment. They then continue and say that even minor laws will suffice for historical analogues if those laws were never actively challenged (non-controversial) since the time they were adopted.

That's opening the door very wide.

 

[LiveLife]

So no other case could've accomplished "reaffirming" this? Because I'm not even buying that we needed to reaffirm anything to make it "binding law" in the first place, simply because it already was as it stood. That's the whole point of a decision.

Rahimi just so happened to be the "first" 2A Supreme Court test case of Bruen methodology.

And "binding law" and "test case" are not my words but words of justice Jackson in her concurring opinion - https://www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf

JUSTICE JACKSON, concurring.​

​

This case tests our Second Amendment jurisprudence as shaped in particular by New York State Rifle & Pistol Assn., Inc. v. Bruen ...​

​

... Bruen is now binding law. Today’s decision fairly applies that precedent, so I join the opinion in full.​

 

[Basura Blanca]

Being the first isn't really important, when you consider just how many cases we even get cert for from the supreme court. To have it squandered on Rahimi just to make some unnecessary "Bruen is now the law of the land" declaration, is putting a really heavy duty shine on a turd. A million other cases could've done the same thing, and they all would've been the first to test the post-Bruen waters too.
But whatever. What's done is done.

As for Jackson, this is what she actually wrote. I'll quote it here again so the vitally missing context is retained: "I concur in today’s decision applying Bruen. But, in my view, the Court should also be mindful of how its legal standards are actually playing out in real life. We must remember that legislatures, seeking to implement meaningful reform for their constituents while simultaneously respecting the Second Amendment, are hobbled without a clear, workable test for assessing the constitutionality of their proposals."

The way Rahimi is playing out in the real world so far has mostly centered around finding laws that address "longstanding societal issues", and saying those are good enough to meet Bruen's intent. This isn't being hidden in layers and layers of complex language. It's very superficial. But that's precisely why Jackson said what she said in such unambiguous terms; Bruen isn't a workable test. We can't ignore that.

 

[LiveLife]

As for Jackson, this is what she actually wrote. I'll quote it here again so the vitally missing context is retained: "I concur in today’s decision applying Bruen. But, in my view, the Court should also be mindful of how its legal standards are actually playing out in real life.

And I see the difference in wording ...

"Bruen is now binding law. Today’s decision fairly applies that precedent ..."​

​

Compared to:

"... in my view, the Court should also be mindful"​

​

To this layperson, there's a significant difference between "is now ... fairly applies" and "in my view ... Court should".

As to Bruen methodology being played out in lower inferior courts, here's recent example from 9th Circuit - https://www.thehighroad.org/index.p...apply-to-future-2a-cases.931586/post-12974769

"must point to" seems quite strong wording to this layperson ...

"[Government] must point to regulations that are analogous to the regulations cited by the Supreme Court ..."​

 

[armoredman]

Question - do we have any idea how long "temporarily" can be? Temporarily like less than a year, or the duration of a prison sentence, (get yer horse and yer gun back, pard!), or some flexible standard that could be 1-100 years? I wonder how that will shake out. bet on the Marxists stating that 100 years, geologically speaking, is "temporary"!

 

[Jim Watson]

Well in some law, the difference between a misdemeanor and felony is a year and a day sentence. A government lawyer might consider a year to be temporary.

 

[LiveLife]

Question - do we have any idea how long "temporarily" can be? Temporarily like less than a year

Well in some law, the difference between a misdemeanor and felony is a year and a day sentence.

I do believe it could be up to a year and renewable before court order expires - https://maerpo.org/frequently-asked-questions/

How long does an Extreme Risk Protection Order (ERPO) last if it is issued by the judge?​

If an ERPO is issued after a full hearing, it will be in effect for one year, or for less than one year as ordered by the judge. When an order is issued, the judge will give a specific date for when the order will expire.​

 

[Basura Blanca]

And I see the difference in wording ...

"Bruen is now binding law. Today’s decision fairly applies that precedent ..."​

​

Compared to:

"... in my view, the Court should also be mindful"​

​

To this layperson, there's a significant difference between "is now ... fairly applies" and "in my view ... Court should".

What I mean is it's unremarkable that any of the justices would say otherwise with respect to Bruen being "binding law". That's a given in the circumstances. What's more noteworthy (imo), is what was said beyond that. It's missing significant context. Jackson's writing is one thing. Sotomayor is more blunt:

Today, the Court applies its decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), for the first time. Although I continue to believe that Bruen was wrongly decided, I join the Court’s opinion applying that precedent to uphold 18 U. S. C. §922(g)(8).

It would be pretty darned disingenuous, if I were to summarize that as simply "Sotomayor accepts Bruen as the law of the land!" Sure, it's kinda true. Also kinda not.

 

[Basura Blanca]

Well in some law, the difference between a misdemeanor and felony is a year and a day sentence. A government lawyer might consider a year to be temporary.

In Thomas's dissent, he tangentially touches on the government rewriting the 2a to only apply to law-abiding "responsible" citizens, and then further attempting to clarify "responsible" to mean "not dangerous". So from the point of view of the U.S., temporary could mean until "not dangerous" (anymore). This is of course ridiculed by him as being unsound and inconsistent with the plain text meaning of the second.

This was a terrible case. Period. A red flag case with a more sympathetic plaintiff could've been a stellar win, instead of an 8-1 crap fest. All this did was empower the other side.

 

[Jim Watson]

Sympathetic plaintiffs are hard to come by.
These are criminal cases, after all.