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SCOTUS upended gun laws nationwide; mass confusion has followed

By Rachel Weiner, the Washington Post

July 11, 2024, 8:00 am CDT

Semiautomatic weapons. Large-capacity magazines. Guns with scratched-off serial numbers. Ghost guns. Guns in bars and restaurants. Guns in the hands of people who have threatened to kill themselves or someone else. Which firearms are legal and who can have them all expanded in the wake of the U.S. Supreme Court’s landmark decision two years ago in New York State Rifle & Pistol Association v. Bruen, which strengthened Second Amendment rights in America and launched hundreds of lawsuits challenging gun restrictions nationwide.

This summer, the Supreme Court said it had been misunderstood: Courts were taking too far Bruen’s guidance that gun laws must align with U.S. “history and tradition.” People under domestic violence restraining orders, the justices decreed, could be barred from having guns, allowing a looser interpretation of its decision from two years ago.

But on both sides of the gun-control debate, people say the ruling will do little to ease the confusion and disruption unleashed by the high court’s 2022 historical mandate. Only eight of roughly 500 federal court cases that are challenging the constitutionality of firearms restrictions since the Bruen decision that are being tracked by the gun-control advocacy group Brady involve the law recently upheld by the Supreme Court, according to a Washington Post review of the data. Those opposing gun regulations said they still plan to aggressively target laws that they believe violate the Constitution.

The high court also didn’t clarify how far back in American history judges must go to justify allowing firearms regulations. That leaves other major gun laws vulnerable at a time when the U.S. surgeon general has declared gun violence a public health crisis and as a new study reports that gun rulings have become more politically polarized, experts said.

The Bruen test was created in response to conservative complaints that the Second Amendment was not taken seriously enough, with courts too often prioritizing public safety concerns over gun rights. In Bruen, the court said no such choice was allowed—all that matters is whether there is a historical analogue for the regulation being challenged.

The prospect of implementing that decision helped drive Judge Paul Watford, 55, to retire from his lifetime appointment on the U.S. Court of Appeals for the 9th Circuit.

“If the Supreme Court hands down a decision like Bruen that imposes a mode of analysis that you think is completely misguided, that leads to results you think are incorrect under the Constitution … if you’re not comfortable doing that, if you don’t want to be implicated in the process, you should find another job,” Watford said.

He said the conservative U.S. Court of Appeals for the 5th Circuit, in ruling that domestic abusers could not be deprived of their weapons, “took Bruen seriously and applied it to a logical end.” After all, domestic abuse was not considered a crime in the periods the Supreme Court had deemed relevant for gun regulations—the late 1700s, when the Bill of Rights was written, and the 1860s, when it was applied to state laws.

United States v. Rahimi, decided last month by the high court, emphasized that the historical analogue didn’t have to be so strict. Laws about general dangerousness could justify the federal law making it a felony to possess a gun while under a domestic violence restraining order. Last week, the justices sent challenges to federal bans on firearms for felons and drug users back to lower courts for review with Rahimi in mind.

But experts say the decision was written so narrowly that it does not make clear how to address other clauses of the same federal law. The court also declined to clear up a dispute over whether judges must find historical analogues from the late 1700s or the 1860s.

Critics say the Rahimi ruling does not solve the inherent problem created by Bruen—that judges are being asked to evaluate history, based on limited records assembled by dueling teams of lawyers.

“We’re not really equipped to play historian,” said Lee Yeakel, a George W. Bush appointee from West Texas who also retired last year. To start with, he said, “we might not know what got left out.” A lack of regulations might simply reflect a lack of need or political will, not a belief that the law would be unconstitutional. Also, he said, the history that is recorded can’t be easily applied to modern-day problems: “If you look at historical writings about regulating firearms, you’re not going to find anything about regulating assault weapons.”

Yeakel said he found persuasive an opinion from a Biden-nominated judge lamenting that “we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.”

That opinion was one of a dozen cited by Justice Ketanji Brown Jackson in June in her concurrent opinion to the domestic violence case. Lower-court judges, she said, think “there is little method to Bruen’s madness.”

In the absence of clear guidelines, according to a recent study, an ideological divide has emerged. Judges nominated by Republican presidents are twice as likely to support undoing firearms restrictions in significant decisions, a shift fueled in large part by Trump nominees.

“The Trump judges are close to casting 50 percent of their votes in favor of gun rights, when the average for other Republicans is 28 percent,” said the study from three university professors reviewing more than 1,000 gun-related decisions in the 18 months after Bruen.

In part, experts say, the polarization is driven by advocates choosing the courts considered most friendly to their views. But they also say Bruen made it easier, not harder, to rule based on political preferences rather than the law.

“It’s not good to have a legal test that doesn’t work; it just invites courts to apply the test dishonestly,” said Nelson Lund, an academic who favors a broad reading of the Second Amendment. “There are going to be a lot of issues on which text, history and tradition do not provide reliable guidance.”

With Rahimi, he said, the Supreme Court warped its own history test to reach a politically palatable result. But gun-control advocates say they have taken the history seriously, marshaling scholars of colonial laws on “keeping the peace” and early innovations in gun design.

“These are fairly niche areas, whether it’s the linguistics of the Second Amendment or 18th-century firearm regulations,” said Zach Pekelis of Pacifica Law Group, a firm helping defend gun laws in Oregon and Washington. “There are only a handful of credentialed experts out there.”

Brian DeLay has become a go-to expert. The history professor at the University of California at Berkeley started researching gun manufacturing through work on Native American involvement in the Mexican-American War. Until late 2022, he had never been an expert witness in any court case. Now he has been involved in at least 25. He was first recruited to help defend D.C.’s high-capacity-magazine ban through what he called “a highly random connection”—recommended by a fellow historian who knew a librarian whom D.C.’s attorneys had contacted because she had curated an exhibit on 19th-century firearms.

“Although I had never worked on one of those cases before, I knew immediately” that the claims made by the plaintiffs “were totally incorrect,” DeLay said, and “utterly devoid of context.” His testimony generally consists of saying that automatic or semiautomatic weapons were “vanishingly rare” in the 18th to mid-19th century and that there was no American tradition resembling today’s handmade or self-assembled weapons, known as ghost guns.

Brady is tracking nearly 700 active Second Amendment cases, using online docket searches to build on data from a study published on the first year after the Bruen ruling. From that data, The Post identified about 500 distinct federal challenges under Bruen.

Nearly 40 percent of those federal cases involve challenges to laws that keep guns away from people who are charged with or convicted of felonies, according to a review of the data. Roughly 15 percent involve bans on types of firearms such as machine guns, military-like weapons and ghost guns.

About three dozen of those challenges, in eight states and D.C., are over what counts as a “sensitive place.” In Bruen, the court said there were “no disputes regarding the lawfulness of” laws barring firearms in “sensitive places” such as “legislative assemblies, polling places, and courthouses.” After the ruling, multiple Democratic-led states passed legislation expanding what counts as “sensitive.”

Before the Supreme Court decision in Bruen, Jeffrey Muller was one of a select few people allowed to have a handgun in New Jersey, where people had to prove a need to be armed. The pet store owner won a right to carry after being beaten and kidnapped by a group who meant to attack another man, with the same name, they wrongly believed was wanted by the Hells Angels motorcycle gang.

The Bruen decision, however, made New Jersey’s stringent permit process unconstitutional, opening up who could apply for the right to carry a gun. In response, the state banned guns in designated “sensitive places,” including nursing homes, museums and libraries, along with any private property without explicit consent. Under the law, guns could be carried in cars only unloaded and secured.

“People got these permits now, but they can’t carry—it’s ridiculous,” said Muller, who is suing over the new law.

New Jersey Attorney General Matthew Platkin said he understood the frustration of longtime gun owners. “But the reality is that Bruen changed things,” he said. In 2019, New Jersey approved about 1,500 gun permits, according to the office. Since the decision, more than 37,000 people have gotten gun permits in the state. He pointed to research indicating a relationship between gun permit access and homicides.

In addition to regulations on where people can have a gun, about a dozen bans on sales of large-capacity magazines are being challenged across the country, according to advocacy groups tracking those cases. For years, limiting guns to 10 bullets or fewer has been seen as less controversial and potentially more effective than bans on military-style semiautomatic weapons.

Those trying to upend the restrictions say the most popular guns now hold more than 10 bullets, so they are hardly the “dangerous and unusual” weapons early American laws banned. But supporters of the laws compare them to bans on trap guns and Bowie knives, novel and dangerous weapons that were prohibited in the late 18th and early 19th centuries. They also argue that magazine restrictions are a similar response to a new problem—mass killings with semiautomatic weapons.

When Oregon’s high-capacity-magazine ban was challenged, the state called historians and statisticians to make that case. But their final witness was Jenna Longenecker, who had a different kind of experience: Both her parents had been killed by gunfire.

First, in December 2012, her mother was shopping for Christmas presents at a local mall when a 22-year-old with an AR-15 opened fire from the food court. Four years later, her father, deeply depressed, killed himself with a gun he purchased that summer. Oregon’s magazine limit and new permitting process could have changed both stories, she said.

Watching her testify, firearms advocate and instructor Derek LeBlanc had a different view. A friend of his was at the mall the day Longenecker’s mother was killed and pulled out a Glock that holds 15 bullets in its magazine. Though the friend told police he did not fire, fearing more carnage, he also told law enforcement and reporters he believed the gunman saw the Glock and retreated. (Police said they had no evidence to confirm or contradict that theory).

“I want as many bullets as I possibly could have inside the gun because I don’t know what that threat is going to be,” LeBlanc said.

But more generally, as he wrote on his blog—“What this testimony has to do with the historic traditions related to our [Second Amendment], I do not know.”

Longenecker says she doesn’t want to ban all firearms. Her husband, a veteran, owns several. But she now worries about their children falling victim to gunfire.

“There’s always going to be people on the other side who disagree. I’ve tried to do my best to understand what they’re saying and why and understand their thought process, because that’s the only way we’ll make progress,” she said. But, she added, “I worry more than anything that this issue is not going to get better.”