State gun regulations are a messy patchwork. The Supreme Court's Bruen decision won't help | The Hill
Category: News & Politics
Via: ender • 2 years ago • 27 commentsBy: ANDREW MORRAL, ROSANNA SMART AND DARRELL MILLER, OPINION CONTRIBUTORS
S E E D E D C O N T E N T
Gun rights advocates cheered the Supreme Court's June decision in New York State Rifle & Pistol Association v. Bruen as a reaffirmation of the Second Amendment's protections of an individual right to bear arms. Gun control advocates grumbled that the decision would prove a costly disaster for states desperate to address sharply rising rates of gun violence.
And yet, as states are already proving, the truth is likely to be more complicated. Rather than an abrupt change to American gun laws, the Bruen opinion may accelerate existing political and legal trends, driving state laws toward more permissive and more restrictive gun regulations.
Red-state legislatures will likely continue their efforts to make it easier to own and carry guns — citing Bruen as a reason to relax their gun laws, repeal existing laws or vote against gun regulation. Blue states, by contrast, will likely continue to expand restrictions, citing passages in Bruen that bless gun licensing, the designation of sensitive places unsuitable for the presence of firearms, the prohibition of dangerous and unusual weapons, and the restriction of gun ownership to those who are "law abiding, responsible citizens."
Indeed, just weeks after many gun laws were upended by Bruen, state governments sought measures to avoid the seemingly-inevitable shift toward more permissive gun policy environments by raising age limits for buying semiautomatic rifles, requiring background checks for ammunition purchases and allowing individuals and local governments to sue irresponsible gunmakers for harm caused by their products.
The Bruen decision, then, may not actually narrow the policy gap between states sharply divided over their approach to regulating guns. Rather, its result may not look very different than what we have today — a patchwork of laws that often reflect political and policy demands of individual states. That is, until the court accepts new cases and clarifies some of the significant ambiguities that Bruen has left lower courts to sort out.
Bruen concerned New York's "may issue" concealed carry law, which required that a person seeking a license to carry a concealed weapon show "proper cause" to obtain a license. "Proper cause," under New York law, was defined as a special need, separate from a generalized need for self-defense, which is shared by everyone. In its ruling, the court indicated that gun regulations must be analyzed to see if they comport with traditional American practices of gun ownership and regulation. If not, they must be struck down.
All of this would seem to open the floodgates for guns. And yet, in concurring opinions by Justices Samuel Alito, Brett Kavanaugh and Chief Justice John Roberts - whose three votes were essential for the six-justice majority ruling - the court indicated that licensing laws for concealed carry that use more objective metrics than "proper cause" are presumptively constitutional. Gun ownership may be, in the court's view, a fundamental and historical American right, but so is the regulation and licensing around gun ownership and public carrying. States with so-called "shall-issue" laws - with less subjective and discretionary considerations about who may own and carry a firearm - would seem to comply with the Second Amendment after Bruen.
The presumptive constitutionality of these "shall issue" jurisdictions should provide ample room for states to ensure that firearms are not carried by the violent and the reckless — the people the now unconstitutional "may issue" laws were meant to screen out.
For example, some "suitability" permitting standards that deny licenses to persons who are a potential hazard to themselves and others seem to still be on the table. Some states, like Connecticut, deny permits to persons "whose conduct has shown them to be lacking the essential character o[r] temperament necessary to be entrusted with a weapon." Others, like Colorado and Oregon, enforce standards that prohibit the carrying of firearms to those with documented histories of drinking or drug problems, violence or emotional instability. Still other states, like Delaware (a state with a "may issue" law that the court considered constitutional), require that an applicant submit five character references from "respectable citizens" of the county, and have notice of the application published in a newspaper of general circulation.
Such "good moral character" standards may allow license issuing authorities to consider applicants' public statements, such as their social media posts, in making licensing determinations (although, depending on their breadth, this may raise some First Amendment issues).
Indeed, both California and New York have already included such "social media checks" in their application processes. By allowing states to determine suitability conditions for licenses to carry or even possess a firearm, Bruen may invite states interested in keeping guns out of the hands of high-risk citizens to develop more targeted, effective and consistent licensing rule than the "may issue" laws they replace.
Training standards provide another mechanism for ensuring safe gun carrying. Some of the presumptively constitutional "shall issue" states, like Florida and Michigan, require minimum levels of training, including live fire. Similar tests could be used in other states. Such regulations could be defended under Bruen by noting their historical analogues in the training standards required of militias in the early days of the republic.
Civilian training requirements could also include de-escalation and implicit bias training to reduce the erroneous use of deadly force against racial minorities, which is a common occurrence among the police. And suitability requirements could be graduated, much like driver licenses, to reflect the dangerousness of the weapon to be carried or the places a gun is allowed to be carried.
Tennessee, for instance, has a graduated licensing system that allows those who receive more training and who meet other criteria to obtain enhanced permits allowing them to carry concealed weapons in more places than those who obtain standard permits.
Finally, the court's opinion was quite vague on what places states can legitimately describe as "sensitive," where guns could be prohibited. Instead, the court again looked back in time, suggesting that historical analogues should guide these decisions. Yet, if history is to guide us, early America was filled with examples of gun carriage restrictions, going back to the early common law. Restrictions of guns at fairs, markets, polling places, places of public assembly and public education are well documented in the historical record. States will almost certainly expand the list to cover places where modern educational, civic and political activity occurs.
That said, red-state legislatures are likely to see Bruen less as an invitation to regulate than as permission to further deregulate guns and gun ownership. Bruen's defense of public carry will be cited by gun rights advocates as a justification to repeal or relax what limited licensing remain in those states in favor of so-called "constitutional carry." The court's "history and analogy" approach to constitutionality will potentially be used by red-state legislatures to sift through their existing laws and purge all those that have no clear legislative equivalent in the founding era.
Almost certainly, some legislators will use the Bruen ruling as reason to vote down any kind of modern regulation - such as emergency risk protection orders ("red flag laws") - they deem as limiting gun rights. Bruen doesn't command this result; but it offers a legal justification for such policy choices.
The result of this, in all likelihood, is that, unless the court clarifies its Bruen holding, we'll see for the foreseeable future what we've seen for the last decade: Blue states regulating within the ambiguities and interstices of the Supreme Court's decisions on guns; red states articulating their political and policy preferences as a matter of constitutional right and requirement.
Thus, we'll see a continuing separation between blue states and red states (blue urban areas and red rural areas) — about how, state by state, region by region, we understand our fundamental, constitutional framework surrounding the right to keep and bear arms.
Andrew Morral is a senior scientist at the nonprofit, nonpartisan RAND Corporation and director of its Gun Policy in America initiative. Rosanna Smart is an economist at RAND. Darrell Miller is the Melvin G. Shimm professor of law at Duke University.
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For or against, this is a well written article.
In the real world gun laws have been proven to be ineffective
The one thing I don't like about this article is it's almost saying that the courts should decide gun law.
well the state legislatures are trying to do the same thing ,the courts simply determine if the legislation falls into and within constitutional constraints .
you dont think legislatures cant over reach and impinge on personal rights ?
It is still going to the courts and having courts rule. If it doesn't work the first time, try again...
Personally I think some people should leave well enough alone. What may work in Manhattan is not going to work out on the plains.
Just like I couldn't tell someone what gun to carry on a farm, I couldn't tell NYC they have to let every nut in the city be able to carry.
thats simple , the one that works .
for the most part i tend to agree , different places will need different solutions , but at the same time the courts will be deciding if any legislation does not meet constitutional muster , that is after all pretty much their jobs .
When every law is pushed for the courts to decide, is that not defacto having them make law.
Case in point, this article. Talking about courts deciding. Sue against any law, have the courts decide. Don't like the outcome sue again.
Imo it is basically forming law through the court system.
ok , a legislature follows the proceedure and creates a law , the govenor signs it into law , ANYONE can challenge ANY law if they feel it is not a just law , the court then decides if the law is just , or unjust , they are NOT making any laws just deciding if the law does not meet the standards needed to be met . thats all that happened in the latest case ,Bruen , the courts simple decided it was an infringement of a persons rights , which made the law unconstitutional and null and void .
legislatures have a bad habit of creating legislation that ultimately cant pass the constitutional "sniff test". they usually count on no one wanting to take the time or spend the money on a court challenge .
And that goes for any legislature , local , state or federal . ALL legislation has to pass that "sniff test".
there is one remedy though , change the constitution in one of the 2 methods provided . absent that expect challenges till the cows come home
I could also say another remedy is to simply move somewhere where the people think alike but that would usually mean out of the country .
and to finally answer the question , no , having the court decide a challenge to a legislated law is not meaning the courts are making law , it means the legislature that created the law didnt do their simple jobs . or in other words , they need to try a little harder not to violate individual rights where the constitution is concerned . if they cant do that , they should never have been elected to create laws in the first place .
You know as well as I do that there are people that will fight tooth and nail for zero regulation. Even if they have to go to court for it. Even going as far as taking away a cities gun laws that were on the books for 80 years or more.
Imo what some people don't want to see is taking away one cities ability to regulate is the same as trying to regulate farmland or plains.
What is burdensome to some may not be to others. I see it as a way to make guns laws universal.
In my state any non-felon resident over 21 can carry concealed with no training or permit.
Kind of scary.
Are you more comfortable with open carry?
I think it’s the “no training or permit” part that is of concern. Not the “concealed” part.
Maybe, but cjcold could have just said carry.
Well i live in what some call a "Constitutional carry " state the state still offers permits for those that would like one that travel out of state to states that recognize this states permits . My state also recognized all other states permits , and as of this year even out of state people do not need a permit . better if they have one though .
there is a caveate .
one can just not be a prohibitted person , meaning if you cant purchase a firearm from a licd dealer and pass the background check , or if you have been convited of a felony or some other disqualifier , and those people know who they are , one best not be caught carrying .
The state prison in rawlins is not a fun place , its in the middle of no where where its a good walk to get anywhere to try and escape . and if convicted thats where you would go .
My state also allows both open and concealed carry , thats up to the individual which best suits them for the situation they are in , example when hunting i tend to open carry a hand gun , when out and about its a mix of open and concealed depending on the situation.
Some states only allow one or the other , some allow both .
So as far as permitting , if one can pass the background check for purchase , thats all thats need here to carry.
As for training ,to get the permit one does have to have some verifiable training , and military service counts .for those that dont have military service , training is highly advised , for those that dont bother to get the permit to go out of state .
which leads to the question how much training should be required ?
to get a hunting lic , one has to take a hunter safety course ( that counts towards carry as well) and anyone wishing to hunt born after 1965 has to take the course no exceptions . and that course is a once and done deal.
I think its pretty simple here where i am , and IMO it doesnt have to be very complicated .
I know it is just a tv show but I was watching that Texas law or something, about Texas wildlife rangers. They actually have a lot of rules and regs for hunting, even about the guns. What kind of shells can be used, something about a blank has to be inserted so only one or two shots can be fired....
I would say even their boater regulations are stricter than in my state.
One thing that for some reason worries me, when people are not trained or do not know how to react or respond with cops when they are carrying.
well i spent 10 years as military police , then 3 years as a county deputy sheriff before my hearing took a dump and i was a detriment to those i worked with , and after seeing some things decided , it wasnt for me anymore . i still have all the training and certs , for me when or if i carry and interaact with working police , its simple common sense what to do for me .
though i do see your point how things can escalate .
all very true , thats why when talking hunting or firearms , and their uses , i always make sure to remind people no matter what activity they are doing to make sure they know and understand the laws pertaining to what they are doing , and i even suggest they can make a few rules themselves that even go beyond what the law allows for safety .
Example , the law says here i can use deadly force to protect myself or others from imminent grievious harm or death , part of MY rules for use of deadly force simply drops the protection of others , i have no obligation legally to provide another persons protection .
I don't know how you all do it to be honest. I was watching some cop shows today. I am a little strange I guess, I also watch this one called jail, shows intake. Anyway...it was a chase, the guy stopped, hooker jumped out, he took off again, threw drugs out the window, stopped again, another guy jumped out, he took off again, finally bailed...
Not to mention the one I saw where an armed man hijacked three or four cars and shot at civilians and the police.
I would go nuts and want to beat the living shit out of them. After they put so many lives in danger I would be fuming. Hell I was just watching it.
well i only lasted 13 years most of it in a very controlled military setting , loosing my hearing was likely a blessing in disguise , i can understand your last statment , there was one set of crimes that i had zero to little tolerance for , and that was any adult that hurt a child in any way , .I never crossed the line , but will admit , i came close .
the call that made me decide to hang it up 20-25 years ago was a drugggie that had blown his 2 year old toddler to hamburger , with a 12 ga shot gun . i quit that night , turned to the dark side and became a semi truck driver .
Sorry you had to see that. I know it is against some mythical hippie code that some hate cops yet it has always been the opposite for me. I have a lot of respect for what they do. I couldn't handle it.
I wanted to be a paramedic at one time, but honestly, I don't think I could have handled that either.
I'm very sensitive...Haha
Remember those aptitute test they gave in HS years ago to see what proffession one was best suited for? mine always came back as some career in law enforcement .
There is so much good work that Congress could do to clarify the law instead of playing this absurd game with the SCOTUS.
That was kinda my point. What they are doing is having the courts make law.
thing is they are not playing a game with SCOTUS, they are playing a game the US Constitution , the courts just call them on the games they play .
What you say is true. But what I meant by that is that Congress is the branch that should be making law, not the Court.
And they are , and the courts are the entity that decide if those laws fall within the frame work of the constitution . its all part of the checks and balances of government .
nothing is stopping congress from legislating or creating laws , all the courts decide is if those laws violate the constitution or not in some way or are allowed by the constitution, that is not creating law if they toss one out because it violates the constitution .
If there was no check to the legislatures power to create law they could create all the laws they want that could be in direct violation of the constitution .
A perfect example of court created law was roe v wade , it stood for almost 40 years , yet the federal legislature never created legislation that was signed into law that protected it at its base subject, some thought that even without the needed legislation it was a settled matter , people found out that it was not because it didnt have anything but court rulings after roe was decided in the courts to protect it . Now the USSC has thrown the responsability back to both the states , and the federal entity to create legislation one way or the other , in absence of written constitution proof legislation , the courts were left to their own devices and thoughts .
basically i view the overturning is the courts telling legislatures its time to shit or get off the pot , and create legislation one way or another and solve the issue once and for all and stop using the issue as blodgeon for political purposes.