The Bruen ruling, when laying out the historical prong of the test, said it was up to the government that was defending a gun law to prove the restriction had a parallel in the past.
This shift in burden has put gun rights groups at a greater advantage in court. It has also changed the type of work that government defenders – and the outside gun safety groups that often support them in litigation – must do to advocate for their laws.
“Imagine if you are a district attorney, somewhere in some random state, you suddenly get a lawsuit brought on this, on some gun law you’ve got, and then you’ve got maybe 30 days to respond to the lawsuit. What are you going to do?” said Carlton Larson, a professor at UC-Davis School of Law who specializes in the historical basis of Second Amendment rights.
“I am a legal historian by training,” Larson said. “I would find it very, very hard to turn around quickly on that and come up with something thoughtful.”
But gun rights advocates say this work of historical analysis is a better fit for courts than the means-ends balancing test that many lower courts were applying pre-Bruen. The old approach required courts to act like legislators, said Peter Patterson – a lawyer for the firm Cooper and Kirk, which has represented gun rights groups in high profile cases – while the historical analysis, he said, is “much more a judicial task.”
The Bruen decision has also put a greater focus on the first prong of the legal test – whether the conduct being burden is even covered by the Second Amendment in the first place – which was a question that was “underappreciated” in litigation over gun laws in the past, according to Tirschwell.
— Tierney Sneed in How the Supreme Court Put Gun Control Laws in Jeopardy Nationwide
“I am a legal historian by training,” Larson said. “I would find it very, very hard to turn around quickly on that and come up with something thoughtful.”
GOOD!! That’s the point. Bruen was not written to make their cases “harder,” it was written to make their cases GO AWAY!!
Not finding an answer quickly probably means your position is wrong.
This is just additional excuses for trying to drag out the inevitable for as long as possible. “We can’t possible do an effective search for historical parallels inside of six months!” If one expects to have to dig into the weeds that far, again, you are on the wrong side of the discussion.
It should be obvious…Pompous pasty mouth Gun Control zealots see Bruen as something the plantation escapee Justice Clarence Thomas did. Therefore in the eyes of those sick enough to continue carrying around an agenda that History confirms is rooted in racism and genocide Bruen has no standing.
D Y,
“Not finding an answer quickly probably means your position is wrong.”
I agree 1000%.
(By the way you comment gave me hearty chuckle–thank you.)
We hoped beyond hope that we could get a strict scrutiny ruling from the Court, and we got something so much better.
Combine ‘Bruen’ with what’s coming from a newly-revitalized high Court, and Trump will go down in history as being the most consequential president in recent memory for conservative causes.
Just imagine if the high Court applies a similar standard to other laws. We have a solid shot of cutting *thousands* of bullshit laws out of the books.
Hear that sound, Leftist Scum ™? That’s a fully-loaded freight train coming down the track to crush your bullshit flat… 🙂
Geoff,
While I appreciate your optimism, I am waiting to see if anything substantive actually comes to pass. After all, the United States Justice Department would ultimately have to prosecute any government entity who violates the United States Supreme Court Bruen ruling, via 18 U.S. Code § 242 – Deprivation of rights under color of law. Call me a pessimist, but I just cannot see our United States Justice Department actually applying that law to prosecute government entities who violate the Bruen decision.
Remember, Progressives dominate the United States Justice Department. Good luck getting a Progressive Justice Department Attorney to prosecute a case against a Progressive politician or bureaucrat who is advancing the Progressive cause. I won’t be holding my breath.
Saying it another way, we are solidly in an era now where Progressives define right-versus-wrong and legal-versus-illegal almost entirely based on the identify of the actor and recipient, rather than timeless standards of actual right-versus-wrong. Thus, if a Progressive is doing something to a Conservative, by definition it is probably A-OK regardless of what laws or court decisions are in force.
1983 provides for [individual] civil lawsuits. Also, 242 doesn’t apply to any of this.
I just laughed at a coworker who was freaking out at the idea that our gun laws may not keep criminals locked up. Can’t even keep them locked up with the pre Bruin laws after bail/sentencing reform and raise the age kicked in. Makes my day when reality slowly kicks in for people.
Everybody shed a tear for the tyrants. Stop bullying the tyrants and just let them restrict your liberties! What are you, racist or something?
The only reason we are here with this ruling is that the left has gone full on batshit crazy and outed their hatred for our Constitution. They write laws which are clearly unconstitutional but they don’t care. For such blatant violations of their oath of office they should be removed immediately. Without clear consequences for such behavior they will continue to write these laws.
At a very minimum, we should start using “42 U.S. Code § 1983 – Civil action for deprivation of rights” against these folks.
If these unconstitutional laws are not depriving us of civil rights under the “color of law,” then that phrase has no meaning whatsoever.
LOL…Shall NOT be infringed! Kinda simple Leftard.
Who are you calling “Leftard?”
Do you know what Section 1983 does? It gives big teeth to those whose rights have been violated. It should be used against those who DO the infringing to take their homes, their pensions, their kids’ college funds…
“Do you know what Section 1983 does? It gives big teeth to those whose rights have been violated.”
Big, *sharp* teeth. Now, just imagine a similar standard to ‘Bruen’ being applied to other civil rights… 🙂
“Big, *sharp* teeth.”
I read things like this all the time here, but what I never see is actual cases demonstrating that is true.
What I guarantee we’ll never see is any judgment under this statute that comes anywhere close to balancing out the damage the official(s) inflict on countless people who become felons for choices that are neither unethical nor harmful.
Absolutely. Particularly when these city councils, etc. deliberately and intentionally violate state preemption and/or Federal law to vote in some local restrictive ordinance. They should be arrested and prosecuted for criminal violations under 42 USC 1893. Put a few of them in jail.
We need a Nuremberg 2.0. These people and their supporters are serial human and civil rights violators.
TFred,
While you are 1000% correct in terms of the legalities, the reality is that our United States Justice Department will never actually prosecute any government employee for violating United States code sections for violation of civil rights under color of law.
Think about it this way: a large number (perhaps a commanding majority) of politicians and high-ranking bureaucrats are money and power hungry scumbags–why would they interfere with the ability of their colleagues to amass more money and power, especially when their colleagues will, in-turn, share a handsome portion of that money and power with them?
“At a very minimum, we should start using “42 U.S. Code § 1983 – Civil action for deprivation of rights” against these folks.”
Who is “we”, and why haven’t a flurry of 1983 cases been launched already? There is likely quite a good reason, as in such cases are difficult to bring, and have a loss/win ratio that argues against 1983 cases.
Writing and passing laws that on their face, are in clear disregard of the Constitution should be considered treasonous and those involved treated accordingly.
So, if we start infringing on the infringers, they might quit infringing?….. Brilliant
psst…When a hard won document includes “Shall Not Be Infringed” and scumbags infringe on We The People the response to such tyranical rot is not in anyway an infringement. Brilliant don’t you think?
Meanwhile NYS politicians, “ hold my beer .”
“Say you’re trying to destroy the life of a person who made a choice that was neither unethical in any way, nor harmful / threatening to the rights of any person or the security of the state. Instead of being drawn and quartered for treason and crimes against humanity, as you should be, you’re handed a complicated homework assignment.”
FIFY
“The answer” is pretty clearly written
The Supreme Court recently stabbed gun owners in the back by letting the lower court ruling stand that banned bump stocks.
The Supreme Court today are mere prostitutes of the Republican party and they have paid little attention to the constitution in all matters not just guns. Yes, the corrupt court is smart enough to let gun owners win a case occasionally but as in the bump stock ruling, anything that might threaten their absolute power over the people is not going to get a pro-gun vote.
I will predict you will see a lot more rulings outlawing high capacity magazines and further restrictions on the right to own assault rifles. The corrupt court will simply let lower court rulings stand as they have many times in the past. It’s simply called “Realpolitik” something the average Hillbilly never heard of or would understand.
dacian
you don’t pay much attention to the politics of guns do you. challenges to magazine bands have been filed in five separate Federal US district courts in the past few weeks. a complete prohibition on magazine bans is imminent given that a court in California already said that they were unconstitutional. the ruling on bump stocks really has nothing to do with bump stocks and is more of a procedural question with how Federal Regulators can regulate. there are four other cases on the Supreme Court docket that deal with that subject and once those are ruled on or combined and ruled on it will settle the matter of bump stocks without actually having to litigate bump stocks.
Sorry but the ban on bump stocks is done and over with. The Supreme Court refused to hear the case letting the lower court ban stand.
Which means precisely nothing, as refusing to take this case has no bearing on whether they will take that other similar case–and there are others pending on the bump stock ban. A denial of review is not a ruling on the merits.
dacian the Dunderhead. Refusing at this point to hear one case does not end the matter.
Roe v Wade was done and over with – idiot. Don’t you pay attention at all? And, that wasn’t the first time the Supreme Court overturned “established precedent”. Maybe you should spend a day searching for “supreme court overturns established precedent”. If they didn’t do that from time to time, we would still have dark skinned slaves in the US. Idiot.
dacian the Dunderhead, The Supreme Court is deciding cases based on the Constitution and it’s supporting documents, like the Federalist Papers and the AntiFederalist Papers. That is a concept which is alien to you Leftist. It is time for you and your kind to start to read the Constitution as it was written and meant to be used to govern the country. You people have been having your way making up “rights” that were not in the Constitution, nor ever intended.
You people don’t even understand what a preamble is.
I suggest you take a good reading comprehension course at your local BOCES.
Careful now, Walter. They do have the right to be stupid. They don’t, however, have a right to be protected from their own stupidity.
Dacian is a full blown Marxist British “SUBJECT”!!!
So he can’t think and conclude with his own thoughts, he has to follow the “EDICTS” of the British Monarchy!!!
Lol who cares we are coming for the NFA this decade.
…but enforcing them may be a different matter…
the taxing portion of the NFA could be challenged…
@daican
SCOTUS denied cert, simply basically meaning they would not review that case. It does not mean SCOTUS agrees or disagrees with the lower court ruling. What SCOTUS is interested in a good Bump Stock case that makes a big difference in gutting the ATF and this wasn’t it. But there is one coming once the Fifth Circuit Court of Appeals decides the Cargill v. Garland case from Texas … > BIG ATF LOSS COMING: ATF will Lose Bump Stock Case before Supreme Court–Prediction Explained here > https://www.youtube.com/watch?v=XUm6Esd6F4E
And then we will find out.
The Supreme Court is well away of all this and will once again refuse to hear the case “when not if” the lower court rules in favor of the bump stock ban ( Cargill v. Garland )
Just like NYSRPA vs Bruin right?
@dacian
Keep away from subjects you don’t understand.
dacian, How do you like your Crow cooked?
.40 cal,
“Keep away from subjects you don’t understand.” Umm, not to be rude, but . . . what would there be left for that idiot to comment on??? He knows nothing, he understands nothing, and everything he THINKS he ‘knows’ is . . . utter and complete male bovine feces. As God beset Job with maladies and plagues, so he besets us with dacian the demented. We must suffer our torment.
.40Cal, since when did that ever stop dacian the Dunderhead from flapping his jaws? dacian is what some might call, an efferdent snob!
Hush, the little bass-turd should have to eat it raw.
I saw a decent analysis of this recently. They failed to hear the two cases presented to them on bump stocks, but there are two much better cases to hear working their way through the 5th Circuit. Although seemingly a setback, it appears that the SCOTUS is setting up to hear a different case that will deal a bigger blow to ATF overreach.
dacian is just throwing a temper tantrum. He knows his side lost. Now he’s having a fit like any mentally ill person would.
Defens,
What I think (and hope) we are seeing is Clarence Thomas coming into his own, and becoming the ‘de facto’ Chief Justice. Roberts is a pathetic joke of a windsock, and NO ONE on the court seems to be inclined to be guided by him. Thomas, OTOH, has the deep respect of Alito, Kavanaugh, and Barrett.
Our Clarence is looking down the road and picking the battles he wants to fight, and the Leftist/fascists are going to rue the day they tried (and failed) to Bork him . . . ’cause Clarence got a long memory, and I think he wants some payback (and to actually uphold the Constitution in the bargain).
“The Supreme Court recently stabbed gun owners in the back by letting the lower court ruling stand that banned bump stocks.”
Attempt to comprehend this, your retarded fuckwit :
“BIG ATF LOSS COMING: ATF will Lose Bump Stock Case before Supreme Court–Prediction Explained here”
https://www.youtube.com/watch?v=XUm6Esd6F4E
There is one thing no one really has mentioned when it comes to these lawsuits that I wonder about. If you are an elected official and pass a law like many Blue cities are doing that you know is illegal why is it they can only be sued to change it? Shouldn’t elected officials who pass these types of laws be held accountable as criminals just like anyone else who knowingly breaks the law? Is there no recourse to charge them with criminal behavior?
No.
@dprato
“If you are an elected official and pass a law like many Blue cities are doing that you know is illegal why is it they can only be sued to change it?”
basically: because a law is assumed to be constitutional and lawful until its decided it isn’t and that takes going to court to sue them to get that decision. Our forefathers placed great confidence in ‘governments’ and ‘elected officials’ to follow the constitution, and in doing so allowed them some leeway to assume the laws they enact are constitutional and lawful until a court says otherwise.
I don’t know what they’re crying about. The burden of proof has always been on the government in free societies.
Honestly it’s more the free society (read individual liberty) they are bitching about.
Excellent points in this article.
That law professor is obviously not a litigator. A public entity gets 30 days to answer a complaint–subject to any extensions of time granted by plaintiff’s counsel. But that is just an answer. hardly the whole ball of wax. And typically a defendant will try to have a complaint tossed out (called a demurrer in state courts, a motion to strike in federal courts) for some alleged insufficiency of the pleading. If one follows these cases, it is not uncommon for a trial court to sustain various claims of deficiencies, and allow an amended complaint to be filed. This process can take MONTHS.
Mark are you trying to say that Buren has no merit?
“and then you’ve got maybe 30 days to respond to the lawsuit.”
Every action taken pursuant to a law should be defensible from that moment on, otherwise it was taken in haste without proper study. Delays for scheduling, vacations, holidays, office hours, those are not a problem. Needing 30 days to justify an action which has already been taken is grounds enough for throwing out that action without any further analysis.
Excellent points Felix.
“…you suddenly get a lawsuit brought on this, on some gun law you’ve got, and then you’ve got maybe 30 days to respond”
If the author actually is an attorney, actually is a “legal historian” (whatever that means) then the author knows that court deadlines are normal, and that “government” can always request an extension to respond. Question is the judge, and the likelihood of an extension being granted (given the political nature of judges, an extension will likely be granted).
Supreme Court Justice Clarence Thomas will go down in history as one of the most important jurists in the legal History of the United States. And that is just going to drive the racist white leftists crazy. And I’m glad.
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