First, some background because I haven’t written on this stuff in a while. A few weeks ago, the Supreme Court issued its ruling in NYSRPA v. Bruen. At issue was New York City’s restrictive and discriminatory system for issuing permits to carry a firearm.
The law in question was New York’s Sullivan Act, which I’ve written on before. It required a permit to carry a firearm outside the home, then set up an arbitrary, discretionary process under which minorities and union organizers were routinely denied. In fact, the original text singled out the Irish and used the phrase “swarthy immigrants.”
In the intervening decades, New York made it impossible for anyone but the rich and connected to get permits. A business owner in a bad neighborhood had no chance of being approved, but celebrities like Robert DeNiro and Bill Cosby certainly did. In one case, two members of Aerosmith were given permits in exchange for backstage passes even though they didn’t qualify at all.
In a 6-3 opinion authored by Justice Thomas, the Supreme Court found the Sullivan Act unconstitutional. But how they got there matters.
In 2008, DC v. Heller finally cleared up the idea that the 2nd Amendment does in fact protect an individual right to firearms ownership, unconnected with organized militia service. Gun control advocates weren’t pleased, so they dug their feet in and did everything they could to whittle it down. Most post-Heller challenges to existing gun laws were turned down in the lower courts, who adopted an odd two-tiered, interest-balancing standard of review suggested by Justice Breyer in his dissent. Since Heller specifically ruled out the “rational basis” standard, the lower courts called it “intermediate scrutiny.”
This should have been cleared up by McDonald v. Chicago, in which Justice Alito declared the right to keep and bear arms fundamental. Under pretty much all prior civil-rights jurisprudence, restrictions on fundamental rights are subject to strict scrutiny. The lower courts continued to brush this off.
So here we are. The Supreme Court responded in Bruen by forbidding any kind of interest-balancing test.
We declined to engage in means-end scrutiny because ‘[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.
(…) We then concluded: ‘A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.
Going forward, the courts must evaluate the validity of firearms restrictions under a test of text, tradition, and history. This means many of the laws that were previously upheld are now subject to a new, stricter standard of review.
And there are a ton of cases pending. This one implies the roadmap.
Jared Michael Harrison was charged for being an unlawful user of marijuana in possession of a firearm. The Western District court in Oklahoma ruled that 18 U.S.C. § 922 is unconstitutional under Due Process grounds, and that it violates his right to own firearms under Bruen.
Here’s the decision itself. There are some interesting takeaways here. First off,
As for the Second Amendment, Harrison argues he has the right to possess a firearm and that § 922(g)(3) infringes upon that right. Relying primarily on New York State Rifle & Pistol Association v. Bruen, Harrison argues that the Second Amendment’s plain text covers his conduct (possessing a handgun), and that the government cannot affirmatively prove that restrictions like § 922(g)(3) are part of the historical traditions that define the outer bounds of the right to keep and bear arms.
The GCA was passed almost two centuries after the founding, so it may not pass Bruen’s basic test of historical tradition.
The court also addresses the due-process problems:
But § 922(g)(3) is quite different from even modern felon-in-possession statutes. For starters, the laws significantly differ in the process by which one is deprived of the right to armed self-defense. Section 922(g)(1), the modern federal felon-in-possession provision, only prohibits possession of a firearm after an individual has been convicted of a felony offense
Then there’s this, which could pave a pathway to non-violent felons to regain gun rights:
There is no historical tradition of disarming a person solely based on that person having engaged in felonious conduct. (…) It was not until 1961—just fifteen years before the adoption of the ordinances invalidated in Heller—that Congress dropped the crime-of-violence requirement from federal law. The 1961 Amendments to the FFA replaced the then-existing category of prohibited persons, those convicted of a “crime of violence,” with a prohibition on persons who had previously been convicted of a “crime punishable by imprisonment for a term exceeding one year.” Thus, it was not until 1961 that Congress, for the first time, prohibited persons from receiving a firearm solely on the basis of the person having been convicted of a felony, regardless of whether the felony conviction signified that the person exhibited a likelihood of future violence or force
This part is important. The 1938 Federal Firearms Act created the category of “prohibited persons.” One of those categories was people indicted or convicted of “a crime of violence.” In 1961, Congress quietly passed Public Law 87-342, which which struck the phrase “crime of violence” and replaced it with “crime punishable by imprisonment for a term exceeding one year.”
Given that even misdemeanors meet that standard now, the change was sneaky but significant.
In summation,
Total prohibitions on the right to possess a firearm merely on the basis of a person being a user of marijuana do not fall within the tradition of disarming persons who have demonstrated their dangerousness through past violent, forceful, or threatening conduct.
It’s going to be an interesting couple of years while we see how these things hash out.