New York State Rifle and Pistol Association v. Bruen is an exciting and complex case that has reshaped Second Amendment rights, but what it means for individuals in different states is still almost completely undecided. Because questions about Bruen represent the large bulk of legal questions we have been fielding here at the American Knife & Tool Institute recently, we felt it was best to issue this primer to update people on the status of the law. As big state cases interpreting Bruen are handed down, we will update this document and the corresponding state pages. Read this first, and if you still have questions, feel free to email us. As always, we can’t provide legal advice in any one specific case, but we can direct you to resources that may help you.
Federalism
Before getting into Bruen itself, let’s review the structure of our legal system.
Federalism means that we have at least two sovereigns in every state-the federal government and the state government. Under federalism, as defined here in the U.S., there are a variety of implications, but one is critical for understanding Bruen. In our federalist system, the federal constitution sets the floor for our rights, while state constitutions can only add to them, not take them away. So, for example, when voters in California, as part of the Three Strikes Movement, voted to get rid of all constitutional grounds to challenge criminal charges, all they did was wipe out California law. Individuals could still avail themselves of federal grounds to challenge their charges. In terms of Bruen, we now know the floor for constitutional rights. States can offer gun and knife owners more rights, and many do, but state laws cannot offer LESS than what Bruen says we are entitled to. Also, remember, when a state constitution and a federal constitution conflict, the federal constitution wins. This means that Bruen is the law of the land, not just federally but in every single state as well.
Appellate Rules
That sounds wonderful, but it is not as liberating as you may think. This is, in part, due to how cases are appealed. When a case is appealed, not just to the U.S. Supreme Court, but all appellate courts, the parties must select “issues” or legal disputes for the Court to review.
These issues must be narrowly stated and must be tied to the specific facts of the case. In Bruen, the parties were challenging New York State’s gun licensing scheme found in both statutes and regulations. That scheme, the Court held, was unconstitutional in that it infringed too heavily on the Second Amendment. But the only thing that was held unconstitutional was the scheme in New York. Bruen did not and could not rule on the constitutionality of other similar but not identical schemes in other states.
One only needs to look at Caetano v. Massachusetts, one of the cases after Heller, to see how narrow a case’s conclusion (or holding) can be. Heller ruled that the Second Amendment gives individuals the right to own and possess firearms. One would think this would naturally extend to non-lethal protective devices like stun guns. But it didn’t. In fact, the Massachusetts Supreme Judicial Court pulled Heller apart and concluded that a stun gun wasn’t protected, even though the vastly more lethal firearm was. The issue was smartly appealed to the U.S. Supreme Court, and they struck down the Massachusetts law barring stun buns. But Caetano’s case was not a foregone conclusion. All this serves to emphasize one point – holdings from cases heard on appeal are VERY narrow.
The real question post-Bruen is this – How similar is your state’s scheme to New York’s? Some provisions may seem prohibited by Bruen, but unless they were identical to those in that case or have been ruled on by state legal authorities, we just don’t know. For example, New York’s scheme required some reason to carry, putting the burden on the right holder. Justice Thomas found this impermissible. But what if a state had a firearms class requirement? Would Bruen knock that provision down? We don’t know. What about a minimum age requirement or an eye test? Again, we don’t know.
Bruen in Your State
So how does one figure out what is prohibited after a case as sweeping as Bruen is handed down? The short answer is this: wait. Bruen offers cold solace to the person who is arrested, held overnight in jail, forced to pay bail, and forced to pay for a lawyer on a weapons charge based on a statute that is struck down 14 months into the legal proceedings. A lot of Second Amendment groups are going on the offensive. Instead of waiting for people to get charged, they are seeking injunctive relief. They are basically asking the Court to rule ahead of time if the State can enforce their weapons statutes and regulations or not. That way, individual people don’t have to wait until they are in the thick of criminal proceedings to find out if Bruen helps them or not.
But Bruen is a hot case with a powerful holding. It will be used a lot, but the legal system works at a ponderous pace. After it came down, thousands of federal cases were sent back to court by federal public defenders to see if their client’s gun charge was improperly adjudicated. Those cases will give us new insights into Bruen. The advocacy groups and their lawsuits will also give us insights into Bruen. And finally, run-of-the-mill criminal cases will occur and give us insights into Bruen. But none of that happens instantaneously.
Tips on Navigating State Laws Post-Bruen
• Find a local Second Amendment Lawyer: As with all things legal, if you want legal advice, go to a lawyer. One issue that might add complexity here is that very few lawyers specialize in Second Amendment law. Often those that do are criminal lawyers that take Second Amendment cases. Most states have a few lawyers that are known to specialize in Second Amendment law. Seek those people out.
• Get Involved Locally: There is no better way to know the law than to be the author of it. You would be surprised how easy it is to get involved. Finding advocacy groups that do good work is key. Highly partisan or aggressive groups don’t hold much sway, so avoid them if you want to make productive changes to local laws.
• Stay Tuned to Reliable Second Amendment Sources: There are a lot of sources out there for information on legal developments in the Second Amendment area. As was noted by George Orwell, all are equal, but some are more equal than others. AKTI will stay abreast of Bruen developments in each state.