While gun control proponents and their allies in the establishment media lament how the U.S. Supreme Court has “expanded” gun rights in the U.S., an attorney handing legal issues for the Second Amendment Foundation has essentially set the record straight.
An example of how the press mistakenly explains what has been happening since the high court handed down the 2022 Bruen decision, striking down New York State’s century-old concealed carry statute and “interest-balancing” by courts to uphold gun control laws, is found in the first paragraph of a recent story.
“More than two years after the U.S. Supreme Court fundamentally expanded its interpretation of the Second Amendment, federal courts throughout the country continue to strike down state restrictions on gun ownership,” according to Stateline.
But that’s not quite accurate, according to an explanation from Bill Sack, director of Legal Operations for the Second Amendment Foundation.
“Contrary to a somewhat common misconception,” Sack said via email, “Bruen didn’t change the correct analysis for 2A cases, which had been laid out in Heller. What it did do is reiterate the correct methodology and clarify precisely how it should be undertaken – both critical points, as numerous circuit courts had been doing it wrong for nearly a decade.”
In the aftermath of the 2008 Heller ruling, which struck down the District of Columbia handgun ban, some lower federal courts created an “interest-balancing” test, which placed emphasis on the “means-end” interests of the government in Second Amendment cases. But in the Bruen ruling, Associate Justice Clarence Thomas, writing for the court, said, “In the years since (Heller), then Courts of Appeals have coalesced around as ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny…Despite the popularity of this two-step approach, it is one step too many.”
Sack added his perspective.
“Circuit courts like the 9th, 7th, and 4th Circuits had invented from whole cloth an interest balancing test – one completely detached from the proper ‘Text as informed by history and tradition’ test, and then, to add insult to constitutional injury, applied a watered down version of intermediate scrutiny that acted essentially as a rubber stamp to uphold gun control,” the attorney explained.
“The Supreme Court had finally had enough,” Sack continued, “and when it decided Bruen, the opinion made it crystal clear: those circuits were doing it WRONG. This opened up a litany of fresh opportunities in the courts because years and years’ worth of cases upholding gun control were now overruled and ripe to be revisited. And that’s precisely what SAF has been doing ever since.”
Presently, the foundation is involved in some 60 legal actions around the country, including a couple which could have significant constitutional impact.
“A great example of that is our Snope case out of Maryland, currently before the Supreme Court on a Petition for Certiorari,” he said. “In a prior, dreadful, opinion the Fourth Circuit had upheld Maryland’s Assault Weapons Ban – but they did so using the wrong analysis. So post Bruen, that statute was primed for a fresh challenge. And while the Fourth Circuit continues to try to wriggle around the demands of Constitution, we are hopeful that Snope will be the vehicle the Supremes have been waiting for to put the issue of ‘assault weapons’ to bed once and for all. Snope has been distributed to the Court and is awaiting conference where the Justices will discuss whether or not to hear the case.”
For some reason, the federal courts have been sluggish in deciding Second Amendment cases, dragging out the process almost as though they have been trying to delay the obvious, that the amendment means what it says.
