Gun control measures are struggling to survive in lower courts in the wake of the Supreme Court’s ruling in June that firearm restrictions must align with legal thinking during the drafting of the Second Amendment, but at least one state law has survived.
A three-judge panel of the 11th U.S. Circuit Court of Appeals last month upheld Florida’s ban on gun purchases by 18- to 20-year-olds. The panel reasoned that Reconstruction-era laws restricted 18- to 20-year-olds from buying pistols.
The Florida law permits young adults to carry firearms but bars them from buying pistols at gun shops. The panel, comprising Obama, Bush and Clinton appointees, noted that the restriction was enacted in the late 1800s.
“Even though 18- to 20-year-olds now account for less than 4% of the population, they are responsible for more than 15% of homicide and manslaughter arrests,” the 11th Circuit panel ruled. “And in the more than 150 years since Reconstruction began, guns have gotten only deadlier: Automatic assault rifles can shoot 60 rounds per minute with enough force to liquefy organs.”
The National Rifle Association, which brought the lawsuit, is considering whether to appeal the ruling, spokesperson Amy Hunter said.
Republicans in the Florida Legislature have since introduced measures to lower the age for certain gun purchases to 18.
Democratic-led states have moved in the opposite direction. Delaware increased the age for buying most firearms from 18 to 21.
The 11th Circuit’s decision on young adults and firearms clashes with those of other courts.
Texas had a law barring 18- to 20-year-olds from obtaining a license to carry a handgun, but a federal judge said that restriction ran afoul of the Second Amendment because it limited the right to self-defense outside the home.
“Based on the Second Amendment’s text, as informed by Founding Era history and tradition, the court concludes that the Second Amendment protects against this prohibition,” Judge Mark Pittman, a Trump appointee, said roughly two months after the Supreme Court’s landmark ruling.
Texas planned to appeal the decision but ultimately backed off.
Bruen aftermath
The Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen has led state officials to halt numerous gun control measures and gun rights activists to file challenges. In Bruen, the justices struck down New York’s licensing program that required a legally recognized need to carry a gun in public.
The high court said the government must show that a gun control measure is consistent with America’s founding — or similar laws at the time — to meet Second Amendment guarantees. The justices wiped away New York’s law and measures in five other states that placed conditions on concealed weapons permits.
Justice Clarence Thomas’ majority opinion served as a lecture. He directed judges to start taking the high court’s Second Amendment jurisprudence seriously and said courts must determine whether a firearm restriction would have seemed reasonable to those who crafted and ratified the Second Amendment. If not, then the law must yield to the Constitution.
The ruling sent shock waves through court systems and gave gun rights activists new ways to challenge state and federal measures restricting the use of firearms.
Alan Gottlieb, founder of the Second Amendment Foundation, has more than 40 lawsuits pending in the wake of Bruen. His group is also awaiting regulations from President Biden’s March 14 executive order to increase background checks for firearms purchases.
Mr. Gottlieb said his organization has focused on four classifications of laws and ways to dispute them:
⦁ Age restrictions, carry laws and assault weapons bans that were challenged before the Bruen ruling.
⦁ Cases filed before Bruen that are in search of new plaintiffs.
⦁ Cases focused on insurance mandates and training requirements.
⦁ Lawsuits on New York’s licensing law and other government restrictions.
After the Bruen ruling, New York tried to designate nearly every public area in the state as a gun-free zone, effectively eliminating the right to carry. That post-Bruen move is working its way through the courts.
Mr. Gottlieb said his organization’s biggest hurdle is finding plaintiffs brave enough to challenge the gun laws.
“They don’t want the publicity,” he said.
‘Unpredictable’
The Second Amendment Foundation has stayed away from gun control laws focusing on crimes, Mr. Gottlieb said.
He pointed to a recent ruling from the 5th U.S. Circuit Court of Appeals that said it is unlawful to ban the possession of a firearm by anyone under a court order for domestic violence, such as stalking, harassing or threatening an intimate partner.
That ruling startled gun control advocates.
“I can’t square that decision with the actual danger that women and police officers face from armed domestic abusers and I don’t believe the founders of our nation would want courts to ignore this danger when applying the Constitution they wrote,” said Sen. Richard J. Durbin, Illinois Democrat and chairman of the Senate Judiciary Committee.
“The chaos the Bruen decision has caused is predictable,” Mr. Durbin said during a March hearing.
The Justice Department has asked the high court to review the 5th Circuit’s ruling. It said firearms and domestic conflicts are a “deadly combination” and the Second Amendment gives the government authority to disarm dangerous individuals.
“More than a million acts of domestic violence occur in the United States every year, and the presence of a firearm increases the chance that violence will escalate to homicide,” the U.S. solicitor general said in the petition.
Four justices would need to vote in favor of reviewing the issue for the Supreme Court to hear the case.
Shira Feldman, litigation counsel at the Brady gun control advocacy group, said a few district courts have upheld post-Bruen restrictions on assault weapons, guns without serial numbers — known as “ghost guns” — and felon possession of firearms.
She acknowledged that circuit courts haven’t had the final say and suggested that the high court will need to clarify its ruling eventually.
“We at Brady think that the Supreme Court decision in Bruen left a lot of room for constitutional gun regulation, but it also isn’t the clearest in terms of the standards that it lays out. So we do think that lower courts are often getting confused,” Ms. Feldman said.
Policy analysts have echoed the concern about the Bruen decision’s clarity.
“More than 100 opinions have [been] issued since Bruen, which demonstrate how lower courts have struggled to apply Bruen to various modern laws, such as those regulating 3D-printed guns, large capacity magazines, obliterated serial numbers and gun possession by domestic abusers. Though Bruen purported to constrain judicial decision-making through historical analogy, the post-Bruen case law highlights the risk that, in fact, the opinion has enabled judicial subjectivity, obfuscation and unpredictability,” said Southern Methodist University law professor Eric Ruben, who testified before Mr. Durbin’s committee.
Amy Swearer, a senior legal fellow at The Heritage Foundation who also testified before the senators, told The Washington Times that these issues will take time to develop in lower courts.
“None of this is settled,” she said. “We are probably several months — if not several years — from seeing any of this being reliably settled in the lower courts.”
Ms. Swearer noted that background checks, in particular, likely don’t clash with the historical legal analysis dictated by Bruen.
She pointed to footnote No. 9 in the court’s opinion that said gun licensing regulations in states that require background checks do not necessarily prevent an individual from carrying a firearm.
“I just don’t see Bruen overriding that,” Ms. Swearer said. “We are presuming background checks are fine.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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