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Decision expanding gun rights has policymakers picking through the pieces

Restrictions on firearms in 2022 will more closely resemble those of 1790 following the major ruling Thursday. 

WASHINGTON (CN) — The rigorous permitting scheme to carry a concealed weapon in New York may have been the issue that brought the Second Amendment to the Supreme Court for the first time in a decade, but experts warn that the court's ruling Thursday creates a framework under which all gun laws will now have to be evaluated.

What was once considered settled law may now be on the chopping block. 

“What this means is that we're going to see a parade of litigation challenging what we would otherwise think of as fairly well settled legal restrictions on who can possess weapons, where they can be carried, what kind of weapons are protected,” professor Darrell Miller from Duke Law said in a phone call. “We're going to see a parade of litigation that will say that these regulations are insufficiently analogous to some kind of regulation that existed around 1791 or thereabouts.” 

The 6-3 ruling announced this morning called it unconstitutional New York to require that gun owners demonstrate “proper cause” beyond a generalized self-defense need when applying for the permit to carry a concealed weapon.

Since 2008 when the court handed down District of Columbia v. Heller, courts have used a two-part framework to evaluate if gun laws violate the Second Amendment. The framework asks if the case concerns a Second Amendment issue, and, if so, applies means-end scrutiny. For example, it allows courts to take into account why certain crimes should prevent someone from owning a gun. 

But Thursday’s decision throws that framework out in favor of what is known as the text, history and tradition approach — a method championed for years by the gun lobby and conservative judges, which forces courts to look at laws from the 18th century to decide the constitutionality of modern-day gun regulation. 

Justice Clarence Thomas calls the historical context exceedingly notable in Thursday's decision, the full name of which is New York State Rifle & Pistol Association Inc. v. Bruen.

“For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment,” he wrote for the majority. “Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.” 

This would mean that unless there is a historical regulation that corresponds to the law legislators want to enact, it would be unconstitutional regardless of any data supporting its enactment. For example, some laws prevent gun ownership after convictions for certain crimes like domestic violence. Under this new framework, those factors could not be considered. 

“Let's say that you are prosecuted under a regulation that forbids possessing a firearm,” Miller, the Duke professor, said Thursday. “If you are convicted of a misdemeanor domestic battery offense, now, with this opinion in Bruen, you go in and you say, forget all the data about whether people that are convicted of domestic violence are in fact dangerous or not, the only question is, is this sufficiently analogous to a regulation that existed in history.” 

A hiccup with this methodology comes when there isn’t an analogous regulation from the 18th century. For instance, there are no laws from the 1790s addressing gun regulation on airplanes. Thomas tries to address this in the court’s ruling by noting how Heller didn’t just apply to guns that existed in the 18th century. 

“Much like we use history to determine which modern ‘arms’ are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding,” Thomas wrote. “When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy — a commonplace task for any lawyer or judge.” 

Thomas said judges should look to see if the historical and modern regulations are “relevantly similar.” While noting that other factors may be considered, Thomas said judges should consider how and why a regulation burdens Second Amendment rights. 

“Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘‘central’’ considerations when engaging in an analogical inquiry,” Thomas wrote. 

While Thomas lays out this methodology and tries to account for modern circumstances, there are still many unknowns about how lower courts will apply this framework. 

“Justice Thomas makes a point that you don't need an exact replica of a 1791 regulation for modern regulation to be constitutional, but he doesn't give any indication about what level of generality the analogy is supposed to be articulated at and that's what Justice Breyer in his dissent sort of points out,” Miller said. “Where there is uncertainty, there's litigation, and so we can guarantee that there's going to be litigation.” 

Only hours after the ruling, gun-rights advocacy groups were already vowing to amp up their litigation efforts. 

“FPC Law will soon be filing many more important strategic lawsuits, adding to our dozens of active cases across the United States on key issues from restrictions on the right to carry in public to bans on self-manufacturing firearms and so-called ‘assault weapons’ and ‘large-capacity’ magazines,” Brandon Combs, the founder and president of the Firearms Policy Coalition, said in a statement. “We know that authoritarian governments and officials will do everything they can to circumvent the Constitution and attack the human right to keep and bear arms, but we will punch back twice as hard.” 

Experts say it's likely that all of this litigation may end up back on the steps of the high court for further clarification. 

“This is probably the first in a series of cases that the courts are going to have to figure out about how to apply this text, history, and tradition only approach to problems that didn't exist in 1791,” Miller said. “We don't have jet airplanes, domestic violence isn't really a crime in 1791, we don't have weapons that fire scores of rounds per minute. We don't have any of those things in 1791, and so how lower courts are supposed to figure out what looks like something else, they're going to need more guidance. The Supreme Court is going to have to supply that otherwise, the lower courts are going to be sort of left at sea.” 

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