Expect More 2A Wins
Commenter ccdirtdawgs sent me this tweet:
BREAKING: SCOTUS overturns mag bans, assault weapons ban, and carry ban, tells appellate courts "Go back and redo in light of what we said in Bruen."
What this means: The 9th Circuit upheld CA's mag ban and HI's carry ban. SCOTUS overturned those rulings, and the 9th Circuit now has to apply text, history, and tradition to those anti-gun laws.
Same thing with MD's assault weapons ban. The 4th Circuit ruling upholding it has been reversed, and the lower court has to redo based on the actual text of the 2A. This spells doom for assault weapons bans.
This was an easy development to see coming, once Thomas threw out the 2A Two Step. The SCOTUS had been sitting on those cases, waiting for Bruen.
A few days ago Josh Blackman wrote about this:
The Court abrogated a decade of circuit court precedent, and vitiated mountains of Second Amendment scholarship.
If you have paid attention to Second Amendment litigation over the past decade, you have become familiar with the two-step framework. Under this framework, those challenging gun control laws usually prevail at step one, and lose at step two. … And, over the past decade, there has been a mountain of scholarship that have endorsed the two-step test. During this time, the Supreme Court was asked over and over again to clarify the proper standard under Heller. …
Now, New York State Rifle & Pistol v. Bruen has bid farewell to the two-step test. And it did so very, very briskly:
In the years since, the Courts of Appeals have coalesced around a "two-step" framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. . . . Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
I haven't checked Westlaw, but this paragraph probably placed red flags on dozens of circuit court cases. And almost all Second Amendment scholarship that was premised on the two-factor test has now been vitiated.
The lower courts are going to scramble, and try to find language in the majority, and in Justice Kavanaugh's concurrence, to stick to their old ways. But it will be much tougher.
What Blackman is saying is that it’s not just the handful of cases that had made their way to the SCOTUS over the years and that were returned to the lower courts today. As he says, there are probably dozens of such cases out there. While there may be district courts that will try to stonewall, Trump changed the landscape of the Appellate Courts dramatically. As Blackman says, without specifying the changed makeup of many federal circuits, gun control advocates will find their job much tougher. In much of the country I expect to see various types of gun control laws fall relatively quickly, reversals coming quickly. There will be new cases brought as well, on issues such as fees and taxes.