The 2022 session of the Supreme Court of the United States (SCOTUS) resulted in several decisions impacting gun ownership. The exact significance of these cases and their impact on gun regulation in America is not entirely clear, but some points are fairly certain. A thorough discussion of the nuance of these cases would be an entire book, and far exceeds the scope of an article. Instead, we’ll keep this discussion at the surface level.
Disclaimer: This is not legal advice. If you are making decisions based on this information, you should stop and talk to an attorney about your specific situation. This article is just a lawyer/gun nerd perspective on what these cases mean.
Legal Analysis – The 2022 Supreme Court Gun Cases, Explained
NYSRPA v. Bruen
The biggest gun deal this year was the New York State Rifles and Pistols Association vs. Bruen (Kevin Bruen is the New York State Police Superintendent). Like some states, New York has required concealed carry permit applicants to show “good cause” before issuing the permit. Self-defense by a member of the general public was not considered a good cause. NYSRPA disputed this requirement and SCOTUS agreed with them. The practical result of the case is that states cannot require a license applicant to demonstrate an increased need for personal protection.
However, Brown has profound implications beyond concealed carry permits. Courts often apply ‘tests’ to the facts of a case, which guide the court’s decision. Tests can be convoluted, but are usually a list of questions, and the facts of the case are used to answer those questions. These tests are usually created as part of the decision in a case and help other courts facing similar situations in the future.
Brown changed the test that courts should use in firearms cases. To understand this change, we need to look at an earlier Supreme Court decision on firearms. DC vs. Heller is a 2008 Supreme Court decision that said the Second Amendment applies to individuals, not just a collective militia. It also considered that the right to possess and bear arms extends to weapons in common use, but does not extend to abnormally dangerous or usual weapons.
Some courts have made the decision in Heller and used it as the first step in a two-step test. If the proposed law fails under the Heller standard, the court would apply an “intermediate review,” meaning that the law must further an important government interest and be substantially connected to that interest. Basically, the courts would say “well, this law is not consistent with Hellerbut we still think this law is important, so that’s fine.
Brown specifically terminated the two-step test.
Today, we refuse to take this two-pronged approach. Consistent with Heller, we argue that where the plain text of the Second Amendment covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government cannot simply assume that the regulation furthers an important interest. Rather, the government must demonstrate that the regulations are consistent with this country’s historical tradition of gun regulation. Only if a gun regulation is consistent with that nation’s historical tradition can a court find that the individual’s conduct does not fall within the “absolute command” of the Second Amendment. Konigsberg v. State Bar of Cal., 366 US 36, 50, n. 10 (1961).
This is a massive change from the status quo, and it signals the end of many gun control laws across the country. In fact, several cases that were slated for eventual review by the Supreme Court have already been affected by this decision. SCOTUS has issued “grant, evacuation and discharge” orders on several firearms cases, including Duncan v. Bonta (challenging the magazine ban in California), Bianchi v. Frosh (challenging Maryland’s assault weapons ban), Young vs. Hawaii (challenging the Hawaiian gun law), and Association of New Jersey Gun and Rifle Clubs vs. Bruck (challenging the New Jersey magazine ban). These “grant, set aside and dismiss” orders mean that the Supreme Court grants the motion to hear the case in question, the previous lower court decisions are set aside (meaning they no longer constitute a binding precedent) and the case is remitted (remitted) to the Court of Appeal for a new decision based on Brown decision. This is a very strong indicator that these cases will go in favor of expanding gun rights, but don’t count on a victory until it happens. Lawyers and judges can be very creative when they want.
Administrative law cases
A few other Supreme Court cases may end up having an impact on gun regulation, even if they are not gun cases. To understand how these cases work, we must first explain what the administrative bodies and rules are. If you are already an expert in the Code of Federal Regulations, do not hesitate to take the plunge.
Congress creates laws. The judiciary interprets these laws. The executive branch enforces these laws. Although it sounds like a simple setup, in practice it can get extremely complicated. Suppose Congress wants to reduce pollution and passes a law banning “abnormally hazardous chemicals”. Congress is not made up of expert chemists and biologists in this field, nor does Congress have time to discuss the vagaries of specific chemical compounds that are abnormally dangerous or just plain dangerous. Instead, Congress empowers an executive branch agency to determine which chemicals are abnormally hazardous and issue rules listing those chemicals. As scientific understanding changes and new chemicals are created, the agency can issue new rules on those chemicals without congressional involvement.
Unfortunately, the system often does not work as expected. It is common for the courts to defer to the opinion of an agency. Some agencies make rules that directly contradict the law they are supposed to interpret and enforce. One such agency is the Bureau of Alcohol, Tobacco and Firearms. It is a regulatory body and has a history of making dodgy administrative rules.
Two recent cases have held back administrative agencies. American Hospital Association v. Becerra dealt with the Department of Health and Human Services and their ability to set health care reimbursement rates. The Supreme Court justices concluded, unanimously, that HHS had misinterpreted the law they were trying to enforce. Judicial precedent generally provides confidence in an agency’s opinion of laws. But in that case, the Court ignored the HHS opinion and instead looked at the plain meaning of the law.
West Virginia vs. EPA deals with coal and natural gas power plants. The EPA created a fairly broad power plant rule that would eventually phase out the power plants in question. SCOTUS ruled that the EPA did not have the authority of Congress to make this rule, and as such it was struck down.
So how do hospital and power plant regulations affect gun laws? In short, these cases will make it more difficult for the ATF to ignore underlying laws when making rules or to make rules that are outside of its authority. A specific example is in bump stock cases. The ATF created an administrative rule defining bump stocks as machine guns, despite the fact that the ordinary meaning of the law states that bump stocks are not machine guns. The upcoming rule on pistol stabilizing straps and the recent 80% drop rule will likely not survive these recent rulings.
The 2022 Supreme Court mandate has been positive for gun owners. Immediate impacts are already being felt, such as the California AG directing state to drop ‘good cause’ requirement for concealed permits. Other impacts, such as increased scrutiny by administrative agencies, may take longer to impact firearms business. At this point, it’s safe to say that SCOTUS gun law challenges have a high success rate.