On June 29, 2022, the Supreme Court held a clean-up conference for the cases yet to be dealt with in the current term, which ends on June 30, 2022.
Four of those cases have been waiting on the decision in the NYSR&P Association v Bruen case. Bruen was decided with a strong opinion upholding the Second Amendment individual right to keep and bear arms outside the home.
All four cases have been granted certiorari, vacated by the Supreme Court, and remanded to the appropriate circuits to be heard in light of the Bruen decision.
The Bruen decision eviscerates the “two step” process and the three levels of scrutiny created in the circuits to evaluate cases. As far as enumerated rights go, “rational basis” “intermediate scrutiny” and “strict scrutiny” are dead.
It is now the burden of the state to prove any law restricting the right to keep and bear arms must have a history and tradition greater than the Sullivan law in New York. If the state cannot prove such a history and tradition exists; the law is unconstitutional under the Bruen decision.
The four cases, which have been languishing in the courts for years, are these:
This case involves the ban on magazines of over 10 rounds by New Jersey. (Third Circuit)
This case is about the denial of Hawaii to issue carry permits for outside the home. (Ninth Circuit)
This case involves the ban on magazines of over 10 rounds by California. (Ninth Circuit)
This case involve the ban on semi-automatic “assault weapons” in Maryland. (Fourth Circuit)
All four cases have been sent back to three different circuit courts of appeal, to be re-evaluated under the clear-cut rules of the Bruen decision. This is what is expected when the Supreme Court invalidates the previous system used by the various circuits over the last decade and more.
The Supreme Court has told the offending circuits: You did it wrong when you considered these laws under your convoluted two part system with a three part level of scrutiny. Evaluate them again, using the process laid out in Bruen.
How long this will take is unclear.
New Jersey and California have already made policy decisions saying the “good reason” requirement in their carry permit law is now unconstitutional.
New York seems inclined to find ways to attempt to thwart the direction of the Supreme Court.
The Hawaii government appears to remain silent on the issuing of permits at the moment.
The Supreme Court has sent a message to the lower circuit courts. It appears to be: bans on items protected by the Second Amendment are out of bounds. Bans on the carry of firearms outside the home are out of bounds. Use the process outlined in Bruen to determine if a law has been around long enough, and has been common enough, that it was an acceptable restriction on the right to keep and bear arms in most states for the history of when the Second Amendment was ratified; and particularly when the Fourteenth Amendment was ratified.
It is hard to see how bans on magazines of more than 10 rounds (very recent) or on Semi-automatic firearms (very recent) meet these criteria.
©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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