The U.S. Supreme Court’s New York State Rifle & Pistol Assn., Inc. v. Bruen [1] decision (issued June 23, 2022) was a pivotal ruling. Following up on the District of Columbia v. Heller (2008) and the McDonald v. City of Chicago (2010) decisions, Bruen reaffirmed private gun rights, quite solidly. Up until those three decisions, the Supreme Court had conspicuously ignored taking up any Second Amendment cases, for more than 50 years. But now, the highest court has made it quite clear that the right to keep and bear arms is nigh-on absolute.
I’ve mentioned the Bruen decision before in SurvivalBlog. But today, I’d like like to examine it more closely.
The majority opinion for Bruen was written by one of my heroes, Justice Clarence Thomas. He had previously lamented that the Second Amendment had been treated as “a disfavored right.” But in the 2022 decision, Justice Thomas set things write. He forthrightly wrote that the only gun regulations that can be deemed constitutional are ones that don’t infringe on conduct that is plainly covered by the text of the Second Amendment and that are “consistent with this Nation’s historical tradition.” This part of Bruen means that any gun law enacted at any level must have a demonstrable parallel in regulations that were in place at the time of the ratification of the Bill of Rights — meaning circa December, 1791. Thus, Bruen sets a very high bar for legislators to hurdle. If lawmakers cannot cite a similar law that existed after the War of Independence but before December, 1791, then any statute pertaining to arms of any description would be unconstitutional!
A cursory search of pre-1792 laws that mention “arms” (edged weapons, archery gear, maces/clubs, firearms, and cannons) yields very few laws at all. And the majority of the few arms laws extant in 1791 were actually designed to keep guns out of the hands of American Indians and black slaves [2].
The first law mentioning guns in the colonies was a 1640s Virginia Colony law:
“That all such free Mulattoes, Negroes and Indians…shall appear without arms.” [The Statues at Large; Being a Collection of all the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, p. 95 (W.W. Henninged. 1823).]
But, of course, the Republican-sponsored 13th,14th, and 15th Amendments [3] of the 1860s, buttressed by the Civil Rights Act of 1875, the Civil Rights Act of 1957, and the Civil Rights Act of 1964 invalidated all such laws, by making it unlawful to degrade or deny the rights of any citizen, based on the color of their skin [4].
Set In Stone
Bruen‘s “history, text, and tradition” test is a fittingly heavy bookend to the granitic “shall not be infringed” wording of the Second Amendment itself. Now, once and for all, it is abundantly clear that Americans have an unquestionable right to both keep and bear arms in all but the most limited circumstances and places — such as within courtrooms. And, arguably, the type of arms that we own and carry is entirely beyond the reach of any gun-grabbing legislators. Perhaps some legal scholar might argue that we don’t have the right to own nuclear weapons, but they’d be hard-pressed to find such a law “consistent with this Nation’s historical tradition.”
Consider the following, for the laws of the United States:
- In December, 1791 there were no arms licensure nor permit laws.
- In December, 1791 aside from the carry-over colonial Slave Codes of some southern states, there were no laws that banned open carry. Those only applied to slaves and freed slaves. And there were no concealed carry laws until the slave states of Kentucky and Louisiana both enacted such laws in 1813. Again, disarming slaves and freed slaves was their goal.
- In December, 1791 there had been only one law that restricted whether or not guns could be kept loaded at home. (In 1786, under the pre-constitutional Confederal government, the city of Boston briefly enacted a ban on loaded weapon storage in homes, but that was enacted in the midst of Shay’s Rebellion [5]. The advent of the clear language of the Second Amendment would have invalidated that law.)
- In December, 1791 there were no laws that restricted bore diameter. Even the largest cannons and mortars were unrestricted — although Creepy Joe Biden falsely claims otherwise [6]. And, in fact, the right to own cannons was recognized in the charters of private [7]warships [7]. There were hundreds of such warships by the end of the War of Independence [8], sailing under informal agreements with George Washington and the Continental Army. The number of privateer warship owners peaked during the War of 1812 [9]. Those heavily-armed private warships had full congressional approval, under Letters of Marque [10]. Their cannon, explosive petards, hand grenades, and smal arms were privately-owned, not government property. I should also mention that the Ancient and Honorable Artillery Company, a private artillery group organized in 1638 in Massachusetts, still exists to this day. [11]
- In December, 1791 there were no laws that mentioned a minimum barrel length or overall length of a gun.
- In December, 1791 there were no laws that restricted the rapidity of fire of a gun or cannon. (Organ guns and volley guns had been developed as early as 1339 [12].)
- In December, 1791 there were no laws that restricted the ownership of explosives or explosive-fused cannon shells or mortar shells. The earliest record of fused shells being used in combat was by the Republic of Venice at Jadra in 1376.
- In 1771, rigging firearms to be fired with a string or similar method to discharge a weapon without an actual finger on the firearm trigger was banned by the British Province of New Jersey. These are often referred to as “spring guns” or “gun traps”, intended to deter burglars. But keep in mind that was a law passed under British colonial law. New Jersey became a U.S. state in 1783.
- In December, 1791 there were no laws that restricted the ownership of military pyrotechnics or rockets. (“The first documented use of rockets in a military capacity was in 1232 [13] during the battle of Kai-Keng between China and the Mongols. The Chinese repelled Mongolian invaders with a barrage of “’arrows of flying fire [14].’ The fire arrows were tubes of gunpowder capped at one end and mounted on long sticks that helped keep the rockets’ flight paths steady.”)
- In December, 1791 there were no laws that mentioned hand grenades, but many were used during the War of Independence, primarily in naval engagements.
- In December, 1791 there were no laws that mentioned firearms length or concealability.
- In December, 1791 there were no laws that mentioned the amount of noise created by any firearm, nor the relative silence of air rifles versus black powder-propelled firearms. (The first air rifle was developed in 1779 [15].)
- In December, 1791 there were no laws that mentioned firearms serialization or that required registration, tax, or licensing.
- In December, 1791 there were no laws that distinguished any special status or restrictions on arms “dealers” or arm makers. During the 1700s and early 1800s, the majority of guns were homemade or from small makers, and they were not inscribed with serial numbers. Thus, what are now called “ghost guns” are in fact are traditional guns, in America.
- In December, 1791 there were no laws that restricted or taxed firearms importation. And, in fact, one of the key factors in the War of Independence was overcoming arms shipment blockades by the British navy.
- And in 1791, our fledgling nation had just recently won a war of independence with opening battles that had been triggered by a disarmament campaign by the occupying British army [16]. The British had marched on Lexington and Concord specifically to seize cannons and barrels of gunpowder from local militias.
- But in 1792, with the Second Amendment still in its infancy, there came the first attempt to enact an unconstitutional local gun law, in Maryland. It read, in part: “That if any person or persons shall fire any gun or pistol in the said town, such person or persons shall, for every such offense, forfeit and pay the sum of five shillings current money.” And things went generally downhill from there, until the District of Columbia v. Heller decision, in 2008.
Just A Matter of Time
With the Bruen decision established, it is now just a matter of time before the majority of state and federal gun laws are challenged and invalidated by the courts. Very few gun laws will withstand the Bruen test. It is unfortunate that the appellate court process is so slow. It may therefore take a full decade before we see the unconstitutional National Firearms Act of 1934 (NFA-34) and the Gun Control Act of 1968 (GCA-68) both struck down.
Firing The Other Barrel
Just days after the Bruen decision was handed down, the Supreme Court also issued a decision in the West Virginia v. EPA [17] case. This case will have a profound effect on executive branch agency rulemaking. By reaffirming that only congress can make new federal laws, the Supreme Court has effectively tied the hands of the “alphabet soup” agencies (EPA, ATF, OSHA, MSA, HUD, DOE, et cetera) in issuing any major rules that amplify or supersede existing laws. Thus, the ATF’s recent absurd redefinition of “frame or receiver” and their repeated waffling on pistol arm braces will almost surely be ruled as executive branch overreach. (Arm-braced pistols didn’t somehow magically become “short-barreled rifles” just because a man from a different political party took office as president.)
There is one more aspect of the Bruen decision that I have not seen mentioned elsewhere. That is that it can now be cited as a defense when someone is accused of violating a “gun control” law, and they are put on trial in a state or Federal level court. A defendant can now point out to a jury Bruen‘s “history, text, and tradition” test. At least with juries in pro-gun ownership states, that defense should be quite helpful in securing a “not guilty” verdict. After all, juries have the power to weigh not just the facts of a case but the law itself [18].
A Good Prognosis
All-in-all, gun rights are on the rise in America [19]. The Bruen decision has done away with “special needs” tests for approval of concealed carry permits. Effectively, all states will now be in the “shall issue” category. More importantly, the Bruen test is the death knell for most existing gun laws.
Lawsuits challenging the requirement to prove a specific need or personal risk to qualify for CCW permits are starting to be filed. For example, there was one just filed in New Jersey [20].
Today, 25 states now have permitless concealed carry (a.k.a. Constitutional Carry), and Florida legislators may soon make that number 26 [21]. Freedom is on the march! – JWR