By Alanna Durkin Richer and Lindsay Whitehurst | Associated Press
WASHINGTON (AP) — A landmark decision by the U.S. Supreme Court on the Second Amendment is lifting gun laws across the country, dividing judges and sowing confusion over which gun restrictions can stay on the books.
The Supreme Court ruling that set new standards for evaluating gun laws left many questions unanswered, experts say, resulting in a growing number of conflicting decisions as lower court judges struggle to figure out how to apply them.
The Supreme Court’s so-called Bruen decision changed the test that lower courts had long used to evaluate challenges to firearms restrictions. Judges should no longer consider whether the law serves public interests, such as improving public safety, the judges said.
Under the Supreme Court’s new test, the government that wants to enforce a gun restriction must look back in history to show that it’s consistent with the country’s “historic tradition of gun regulation.”
Courts in recent months have declared unconstitutional federal laws designed to keep guns out of the hands of domestic violence, felony suspects and people who use marijuana. Judges have struck down a federal ban on gun ownership with removed serial numbers and gun restrictions for young adults in Texas and blocked enforcement of Delaware’s ban on the possession of homemade “ghost guns.”
In several cases, judges looking at the same laws have disagreed on whether they are constitutional in the wake of the Supreme Court’s conservative-majority ruling. The legal turmoil caused by the first major gun ruling in a decade is likely to force the Supreme Court to step in again soon to give judges more guidance.
“There’s confusion and disorder in the lower courts because not only are they not coming to the same conclusions, they’re just applying different methods or applying Bruen’s method differently,” said Jacob Charles, a law school professor at Pepperdine University who focuses on firearms legislation. .
“What it means is that not only new laws are struck down…but also laws that have been on the books for over 60 years, in some cases 40 years, are being struck down – where prior to Bruen – courts were unanimous that those were constitutional, ‘he said.
The legal wrangling is playing out as mass shootings continue to plague a country awash in guns and as law enforcement across the US work to combat a rise in violent crime.
This week, six people were shot dead in multiple locations in a small town in rural Mississippi and one gunman killed three students and seriously injured five others at Michigan State University before committing suicide.
Dozens of people have been killed in mass shootings so far in 2023, including in California, where 11 people were killed as they welcomed the Lunar New Year at a dance hall popular with older Asian Americans. More than 600 mass shootings took place in the US last year that killed or injured at least four people, according to the Gun Violence Archive.
The decision opened the door to a wave of legal challenges from gun rights activists who saw an opportunity to overturn laws on everything from age limits to AR-15-style semi-automatic weapons. For gun rights advocates, the Bruen decision was a welcome development that removed what they see as unconstitutional restrictions on Second Amendment rights.
“It’s a true reading of what the Constitution and the Bill of Rights tell us,” said Mark Oliva, a spokesman for the National Shooting Sports Foundation. “It gives absolute clarity to the lower courts on how to apply the constitution when it comes to our fundamental rights.”
Gun control groups are sounding the alarm after a federal appeals court said this month that under new Supreme Court standards, the government cannot prevent people with domestic violence restraining orders from owning guns.
The New Orleans-based 5th U.S. Circuit Court of Appeals recognized that the law “embodies beneficial policy goals designed to protect vulnerable people in our society.” But the judges concluded that the administration failed to identify a precursor from early American history sufficiently similar to modern law.
Attorney General Merrick Garland has said the government will further review that decision.
Gun control activists have denounced the landmark Supreme Court test, but say they are confident that many gun restrictions will survive the challenges. For example, since the decision, judges have consistently upheld the federal ban on gun possession for convicted felons.
The Supreme Court noted that cases involving “unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” And the judges clearly stressed that the right to bear arms is limited to law-abiding citizens, said Shira Feldman, trial attorney for Brady, the gun control group.
The Supreme Court test has raised questions about whether judges are fit to delve into history and whether it makes sense to judge modern laws based on regulations — or lack thereof — of the past.
“We are not experts in what white, wealthy, and male property owners thought about gun regulation in 1791. Yet we are now expected to play historian in the name of constitutional justice,” wrote Mississippi U.S. District Judge Carlton Reeves, who was appointed by President Obama.
Some judges “parse history very closely and say, ‘These laws are not analogous because historical law worked in a slightly different way than modern law,'” said Andrew Willinger, executive director of the Duke Center for Firearms Law.
Others, he said, “have done a much more flexible investigation and are trying to say ‘look, what is the purpose of this historic law as far as I can understand it?'”
Firearms rights and gun control groups keep a close eye on many ongoing issues, including several challenging state laws banning certain semi-automatic weapons and high-capacity magazines.
A federal judge in Chicago on Friday rejected an attempt to block an Illinois law banning the sale of so-called assault weapons and high-capacity magazines. However, a state court has already partially blocked the law — allowing some gun dealers to continue selling the guns — amid a separate legal challenge.
Already some gun laws passed in the wake of the Supreme Court decision have been shot down. A judge declared several parts of New York’s new gun law unconstitutional, including rules restricting the carrying of firearms in public parks and places of worship. An appeals court later put that ruling on hold while it hears the case. And the Supreme Court has allowed New York to provisionally uphold the law.
Some judges have upheld a law that prohibits people charged with crimes from buying guns, while others have declared it unconstitutional.
A federal judge has issued an order barring Delaware from enforcing provisions of a new law that prohibits the manufacture and possession of so-called “ghost guns” that do not have a serial number and are nearly impossible for law enforcement to trace. But another judge rejected a challenge to California’s ghost gun regulations.
In the California case, U.S. District Judge George Wu, who was nominated by President George W. Bush, appeared to examine how other judges interpret Supreme Court guidelines.
The company that took up the challenge – “and apparently certain other courts” – would like to treat the Supreme Court’s decision “like a ‘word salad’, choosing an ingredient from one side of the ‘plate’ and choosing an entirely separate ingredient from the others, until there is nothing left but a completely bulletproof and uninhibited Second Amendment,” Wu wrote in his statement.
Richer reported from Boston.