After Heller, the law of the land was that if the proposed conduct implicated the plain text of the Second Amendment, then the history and tradition of arms regulation was examined. If there was an analogous regulation from the ratification of the Second Amendment, then the modern-day regulation was constitutional.
The rogue, inferior Article III courts then proceeded to take unimportant parts of dicta, focused on those crumbs with laser like intensity to discover that the state could still infringe.
Because the Supreme Court, in Heller was only deciding on a single question, there were laws that were not directly struck down. To put this in perspective, when Bruen was decided, there was only one law struck down, that being the good cause part of the NYC permitting requirement.
Every other law in the land still stood, exactly as it had been written.
When the Supreme Court GVRed several cases, no laws were vacated. Instead, the inferior courts were told “Do it over. Do it right.”
In Heller, the Supreme court told the inferior courts how to analyze Second Amendment challenges. Those rogue courts looked at the dicta, the crumbs, and decided to use an interest balancing test instead. They claimed that since the state was allowed to interest balance free speech, and because no right was absolute, that they should engage in interest balancing in Second Amendment cases.
This allowed the inferior, rogue courts, to decide just how badly a regulation was raping you, and then allow the state to argue it was in the best interest of the rest of the state’s subjects to allow you to be raped just that little bit.
Bruen was a slap in the face to those rogue, inferior courts. The major point of Bruen was to say, “We told you how to do it in Heller. You refused. So now we are going to explain it to you, in simple words, that even a lawyer can understand.”
If the plain text of the Second Amendment is implicated, the burden shifts to the state to show a history and tradition of analogous laws from the time of the ratification of the Second Amendment.
If it is an arm or if it is ancillary to the right to keep and bear arms, then we look to see if there is an infringement.
Samuel Johnson’s Dictionary, published in the 175 and 1773 defined “infringe” as:
- To violate; to break laws or contracts
- To destroy; to hinder.
If a regulation hinders your ability to keep or bear arms, then the Second Amendment is implicated.
This puts the burden on the state to find laws that match the modern-day law.
There were not any in the 1791. Thinking about it, The People have just done an interest balancing test of the right to keep and bear arms. The People have decided that this is one of the most important unalienable rights that must be protected from government overreach.
Because The People believe it to be a core, unalienable, right, they have enshrined protection of the right to keep and bear arms in their newly created Bill of Rights.
If the right to keep and bear arms is so essential to The People, is there any reason to expect them to be creating laws that destroy or hinder that right? No. There is no reason.
This means that the modern state has not been able to find analogous laws. They just don’t exist. They have to reach in to the 1600s or the late 1800s before they can find analogous laws. Even those laws are questionable.
What they did find were regulations that removed arms from people who were individually dangerous. Many of those regulations allowed for disarming a person for only the duration of the danger. A drunk person could be disarmed while drunk. When they were sober, their arms were returned.
If a person was dangerous, they could be incarcerated. While incarcerated, they would be disarmed.
If a person was too dangerous to possess arms, the state could make a finding of dangerousness, and disarm a person.
These infringements on an individual’s right to keep and bear arms are what the state is using to disarm us today.
Their stated reasoning is that since the state has the authority to disarm a dangerous person, the state also has the authority to determine if you are dangerous before allowing you to possess a firearm.
We argue that this is backwards. By default, we have the right to keep and bear arms. The state’s argument is that they have to be given a chance to prove you are dangerous before you can possess a firearm.
In Rahimi the Supreme Court pushed the state to articulate what criteria they were using to disarm Mr. Rahimi. The state dithered between “responsible” and “dangerous”. They want the criteria to be “responsible” because that is an easier objective standard to reach than “dangerous”.
It is fairly clear that Mr. Rahimi was not a responsible person. He had not been proven, in a court of law, by a jury of his peers, beyond all reasonable doubt, with a strenuous defense, that he was dangerous.
Translation: He has to have access to a lawyer and have his day in court.
When the state was backed into a corner by the Justices, they relented and stated that it was only the “dangerous” criteria that they actually could justify.
In my opinion, the Supreme Court is likely going to find §922(g)(8) to be unconstitutional on its face because of the lack of due process. How limited that finding will be is the interesting question. They are likely to issue an opinion that says that §922(g)(8) can be rescued via wording changes.
Conclusion
The state threw a bunch of stuff against the wall. Courts, such as Judge Benitez’s, and others have knocked most of the historical regulations out as not applying. The state is left with one potentially winning argument, disarming dangerous people.
Because that was determined to happen on an individual basis, the state is going to do their best to flip the argument from the state proving you are dangerous to you proving that you are not. If they can’t do that, they will push to have time to “verify” that you are not dangerous.
From this, I foresee a spat of regulations coming out of the infringing states regarding permits to purchase and other such infringements.
