Another post-Bruen decision, this one regarding marijuana

[Tom Servo]

Jared Michael Harrison was charged for being an unlawful user of marijuana in possession of a firearm. The Western District court in Oklahoma ruled that 18 U.S.C. § 922 is unconstitutional under Due Process grounds, and that it violates his right to own firearms under Bruen.

Here's the decision itself.

There are some interesting takeaways here. First off,

As for the Second Amendment, Harrison argues he has the right to possess a firearm and that § 922(g)(3) infringes upon that right. Relying primarily on New York State Rifle & Pistol Association v. Bruen, Harrison argues that the Second Amendment’s plain text covers his conduct (possessing a handgun), and that the government cannot affirmatively prove that restrictions like § 922(g)(3) are part of the historical traditions that define the outer bounds of the right to keep and bear arms.

The GCA was passed almost two centuries after the founding, so it may not pass Bruen's basic test of historical tradition.

The court also addresses the due-process problems:

But § 922(g)(3) is quite different from even modern felon-in-possession statutes. For starters, the laws significantly differ in the process by which one is deprived of the right to armed self-defense. Section 922(g)(1), the modern federal felon-in-possession provision, only prohibits possession of a firearm after an individual has been convicted of a felony offense

Then there's this, which could pave a pathway to non-violent felons to regain gun rights:

There is no historical tradition of disarming a person solely based on that person having engaged in felonious conduct.

(...)

It was not until 1961—just fifteen years before the adoption of the ordinances invalidated in Heller—that Congress dropped the crime-of-violence requirement from federal law. The 1961 Amendments to the FFA replaced the then-existing category of prohibited persons, those convicted of a “crime of violence,” with a prohibition on persons who had previously been convicted of a “crime punishable by imprisonment for a term exceeding one year.” Thus, it was not until 1961 that Congress, for the first time, prohibited persons from receiving a firearm solely on the basis of the person having been convicted of a felony, regardless of whether the felony conviction signified that the person exhibited a likelihood of future violence or force

In summation,

Total prohibitions on the right to possess a firearm merely on the basis of a person being a user of marijuana do not fall within the tradition of disarming persons who have demonstrated their dangerousness through past violent, forceful, or threatening conduct.

It's going to be an interesting couple of years while we see how these things hash out.

 

[zukiphile]

I went back to Kanter to see if the 1961 amendment that displaced the prior crime of violence prohibition. It was there, but I hadn't recalled it.

The treatment of the issue of how closely the ideas of felony conviction and death were related is also interesting in this case.

 

[44 AMP]

convicted of a “crime punishable by imprisonment for a term exceeding one year.”

I would also point out that this language does not allow the actual sentence imposed to be considered. Only what could have been imposed matters, and I don't see that as being justice.

 

[Tom Servo]

The treatment of the issue of how closely the ideas of felony conviction and death were related is also interesting in this case.

In the early days of the republic, a felony was a serious crime against the social order. Usually it was something that caused very real physical harm. Nowadays, it seems like almost anything can be considered a felony.

Remember, under some states' "assault weapons" bans, a person can be charged with a felony if they didn't know better, and they put an upper with a bayonet lug on a Colt Sporter.

That's always been a glaring issue with parts of the GCA and things like the misdemeanor DV provisions in the Lautenberg amendment.

 

[Metal god]

It's going to be an interesting couple of years while we see how these things hash out.

Interesting in deed , The more I read about the Bruen text and tradition standard . The more I see very few current laws passing constitutional muster . My question is how much do we think the SCOTUS will start walking back some of the Bruen language in those same few years . I mean The NFA clearly should be found unconstitutional based on Bruen . Do we really think the whole of the country will be ok with that . I can just see the anti's out there talking about all the mass shooting that will now be possible with full auto assault weapons , silenced with 100rd mags . Stating "you think Vegas was bad " just wait for what's coming !

I see a lot of political pressure coming down on the Bruen decision and I'm not sure how it's going to stand up , especially if the make up of the SCOTUS changes inside of 5 to 10 years . I can see Bruen becoming moot really fast in that case .

 

[44 AMP]

My question is how much do we think the SCOTUS will start walking back some of the Bruen language in those same few years .

To which my counter questions is "Why should they?"

Note how these recent decisions are being made by lower courts, under the framework of review established by the Supreme Court in Bruen.

Take a look at what the current Supreme Court has been doing. They aren't "pro gun", they are "pro proper procedure" about how laws are written and passed. Also about previous SCOTUS decisions, and how they were made.

The amazing thing to me is that they have the intestinal fortitude to look at laws (when the case comes before them) and decide that something done wrong a long time ago doesn't get to stand just because we have been doing it for a long time.

And, so far it seems they don't care about what the press driven "popular" opinion on their rulings are.

I get more than a bit of satisfaction from that. Also, note how the lower courts are "running with the ball" now that the high court has given them a specific framework to use when reviewing future cases before them.

Bruen has given the entire Federal court system a clear set of guidelines which they MUST follow when reviewing firearms law cases.

I think that those courts who frequently upheld gun control laws due to their long existence or due to current political pressure now have an "out" provided by SCOTUS which allows them escape (if they choose) political pressure. If they make an unpopular ruling, they MAY be voted out the next election cycle, or, they may not be. If they intentionally disobey a SCOTUS procedural ruling, they WILL be removed from the bench.
Oh, not instantly, and it would have to be proven "six ways from Sunday" and 100% within correct procedure, but if that is done, the individual judges will be removed, and likely for good.

This gives them the "out" so that they can tell the various political factions "we HAD to rule this way, SCOTUS requires it" along with the implied "don't blame us, we had no choice"....

Personally, I don't think any gun control law of the past century will pass muster under the now established rules, when/if such cases come up. This includes the NFA 34 and the GCA 68 and all the others, in my opinion.

Yes, there will be a HUGE amount of wailing, knashing of teeth, and beating of breasts if/when those are struck down or even appear to be within reach of being struck down, but that is not, and SHOULD NOT be the concern of the Supreme Court.

Do take a close look at what the high court is actually doing and saying with their rulings. They aren't saying "we struck this down because its a bad law" or "we struck this down because its a bad idea", they are saying "we struck this down because proper, correct procedure wasn't followed when it was written, and became law.

AND, they have even applied that standard to previous Supreme Court rulings.

I don't see holding everyone, including themselves to this standard to be a bad thing.

 

[Tom Servo]

but that is not, and SHOULD NOT be the concern of the Supreme Court.

And these last couple of terms, they've given the impression they're not concerned at all with public perception or politics. Bruen isn't the only recent ruling that invited controversy.

There are, of course, petulant calls to impeach certain Justices or pack the court, but those won't go anywhere. We now have a less biased and more focused Supreme Court than we'd had in recent memory. Thank goodness.

My question is how much do we think the SCOTUS will start walking back some of the Bruen language in those same few years

It's really unlikely in the short term. Alito, and Thomas in particular, have been quite vocal in recent cases about the cavalier treatment of the 2nd Amendment. Thomas set up a clear and reasonable test, and it would take decades at least to change that.

I can just see the anti's out there talking about all the mass shooting that will now be possible with full auto assault weapons

Those already happen. Christopher Dorner used silencers. The Vegas shooter probably used machine guns. Gangs are using a primitive Glock conversion to convert pistols.

But the thing is, Bruen made it clear that "public safety" isn't the open-and-shut justification for any regulation lawmakers want to pass. If they want new gun laws, they're going to have to craft better ones than they have been.

especially if the make up of the SCOTUS changes inside of 5 to 10 years

The authority of the Supreme Court as an arbiter of law rests on a principle called stare decisis, or "the decision stands." It's not a tangible or explicitly defined thing. They know this. If a future court starts overturning recent decisions, they're admitting that they're fickle and their rulings are no longer the definitive interpretations. And that would wreck their credibility.

The court is not, as Justice Gorsuch pointed out in a recent ruling, a legislature of last resort. It's not their problem if a gun law gets struck down under the Bruen test and a mass shooting happens. Their job is simply to arbitrate legal disputes and evaluate the validity of laws.

 

[Metal god]

All good points but not my point . Couple new anti activist judges on the court and all that is moot is one of my points .

The other is our side for decades now have not done well in the court of public opinion . I hope you’re right but I can see more political pressure then ever been seen if all modern firearms restrictions are shot down . I agree the country as a whole may be against more gun control but basically completely removing them ???

What about background checks , do they pass the Bruen test ? Registration? Where firearms sales even tracked at all nation wide prior to the 14th amendment ?

The cases coming out of CA right now have spread sheets documenting all gun restrictions since the founding . What is clear from those spread sheets from founding to 1880 is that although there has not been nation wide restrictions . There are many restrictions from state to state . This seems to indicate although the Federal Government does not have a tradition of firearms restrictions. It is clear the state’s individually have been doing it since the founding . How that plays out in the text and tradition argument I’m not sure .

One of the newer or more aggressively argued points since Bruen by the anti’s . Is arguing accessories in General that you can attach to the firearm are not Firarms therefore can be regulated . Sights , grips , types of stocks , modified triggers , muzzle devices etc all are fare game which is an interesting argument to me .

 

[zukiphile]

It is clear the state’s individually have been doing it since the founding .

The antecedent for it is what would need to be unpacked.

I'd also suggest that simply because our history and tradition may include some local regulation of firearms possession and carry, speech, travel, marriage, involuntary servitude or establishment of religion, that doesn't mean that everything found in that history should be open to replication. There may be a history of limited indians to muzzle loaders in some areas, but a new law limiting indians to muzzle loaders now would run into all sorts of problems. NY state had a state church at the founding of the nation and the 1st Am. was seen only as a limit on the federal government. Yet, since incorporation we've seen that as a limit on the powers of each of the states as well. With incorporation of the 2d Am., we should see pre-incorporation history as a limit on state power, not a separate basis for new state authority.

If the antecedent for it is simply any kind of limitation historically as an excuse for an entirely different kind of regulation now, I think that argument will be too crude for most courts. I don't see any historical precedents here for banning a firearm in the hands of full citizens because it's too good at doing what a firearm does.

 

[Metal god]

Not looking at each individual act , only that the states have been implementing there own Sovereign laws since the founding to include firearms restrictions in general. That seems like a tradition in its self . So why can’t they continue restricting firearms as they have since the founding ?

 

[zukiphile]

Not looking at each individual act , only that the states have been implementing there own Sovereign laws since the founding to include firearms restrictions in general.

I'm suggesting to you that a court will be likely to find that analysis too crude where the challenge is to a specific law. No one disputes that states have made their own laws since the founding (though limited by the BOR and incorporation). The challenge would be to a law on the basis that it is without an analogue in history and tradition.

So why can’t they continue restricting firearms as they have since the founding ?

Which of the current crop of laws is substantially like a law restricting firearms at the time of the founding?

 

[44 AMP]

So why can’t they continue restricting firearms as they have since the founding ?

I think, for one example, we had a little thing called the Civil War, which (right or wrong) pretty well settled the fact that individual states cannot do everything they want to, even within their own "sovereign state" borders.

The problem is not ownership of weapons, it is the illegal use of weapons. Abuse does not invalidate use.

Gun control advocates seek to eliminate (or at least reduce) illegal USE by reducing or eliminating legal use and ownership. This is wrong and does not work, as far as I can see.

When people do evil with an object, its cheap, quick and often easy to ban ownership of the object, so that the problem goes away...

except that the problem doesn't go away.......

 

[Aguila Blanca]

The court is not, as Justice Gorsuch pointed out in a recent ruling, a legislature of last resort. It's not their problem if a gun law gets struck down under the Bruen test and a mass shooting happens. Their job is simply to arbitrate legal disputes and evaluate the validity of laws.

Maybe states could just make mass shootings illegal ...

 

[Tom Servo]

The other is our side for decades now have not done well in the court of public opinion

Fortunately, the Supreme Court is not the court of public opinion.

What about background checks , do they pass the Bruen test ? Registration? Where firearms sales even tracked at all nation wide prior to the 14th amendment ?

They were not. We didn't have background checks until 1998. The country somehow functioned without them for over two centuries. What's more, there's no clear data they do any good.

What is clear from those spread sheets from founding to 1880 is that although there has not been nation wide restrictions .

If you look closely, you'll notice that most of those laws have one thing in common: race-based restrictions. I can't believe they chose to present THAT to the court.

In any case, the rule isn't just history. It's also text, and as Heller laid it out, the text is clear.

 

[44 AMP]

While nearly always cloaked in the mantle of "protecting the people from harm" the root of nearly all gun control laws is to deny (or make difficult) possession of arms by certain groups of people.

It may be race based, or ethnicity based or income based, but it is always there. You cannot have an aristocratic ruling class safely doing what ever they feel like if the "unwashed masses" are armed and disagree with the ruling class.

A lot of the gun control got put on the books by people from the ruling classes to protect their privileges, and there was little or no opposition to them from a lot of people simply because even though the laws were on the books, for a long time, they were only enforced against the minority classes.

We have these laws still today, because not enough people with enough of a political voice spoke out against them before they became law, or when they were new. When a bad law has been the law for generations, it is tough to get it repealed, no matter how much it should be.

A few decades ago, one of the "anti-establishment" writers said "America is at that awkward stage, it's too late to work within the system, and too soon to start shooting the bastards..."

I didn't think so at the time, but lately, I've begun to have my doubts. The recent SCOTUS rulings have given me hope that its still not too late to work within the system. I not convinced, yet, but for the first time in a long time, I have a glimmer of hope....

 

[Aguila Blanca]

They were not. We didn't have background checks until 1998. The country somehow functioned without them for over two centuries. What's more, there's no clear data they do any good.

We didn't have 4473s to fill out until the GCA of 1968. Prior to 1968, anyone could walk into a Sears, Montgomery Ward, or the local hardware store and walk out with a firearm.

 

[zukiphile]

We didn't have 4473s to fill out until the GCA of 1968. Prior to 1968, anyone could walk into a Sears, Montgomery Ward, or the local hardware store and walk out with a firearm.

Certainly. My understanding is that the federal licensing of arms retailer dates from the 1930s and that the 4473 process was required of licensees.

I have a lot of enthusiasm for text informed by history and tradition as a constitutional standard generally, not just on 2d Am. issues, but I'd be leery of sticking it places that would get it broken.

Almost all of our modern administrative state arose within the last century. To my disappointment, a lot of people are very comfortable with it. Look to the reflexes of people choosing safety over fairly fundamental liberties over the last several years, and it's hard to see a lot of thought and principle being applied. If the rule that saves the 2d Am. breaks the modern administrative state, we can anticipate that people will find a way to break the shiny new rule rather than the state's firm embrace.

If the current issues of aggressive agency action and individual states appearing to intentionally defy the Court in NYRPA v. Bruen are addressed in a way that secures a win on just those issues, that would be a tremendous victory. When people in all states have a healthy and genuine RTKB, challenging whether the federal government has a place in a federal licensing scheme might be a useful next step. Alan Gura secured his client's victory strategically by keeping the issue small, a license for a pistol possessed in the home.

I raise this point not because I would resist the larger victory, but because I don't think it can happen. We all know what the Court in Wickard did when a large majority didn't like the limitation of the interstate commerce clause. It broke the rule people didn't want to acknowledge.

 

[44 AMP]

Depending on which side of an issue you are on, you're either eating an elephant one bite at a time, or you're suffering death by duckbites....

Simple fact is, trying to do too much in one 'swell foop" gets you severe pushback from everyone who has a vested interest in maintaining the status quo, whether it is right or wrong.

My understanding is that the federal licensing of arms retailer dates from the 1930s and that the 4473 process was required of licensees.

I do not think that the general license requirement for retail sellers dates from the 30s, though there are certain Federal "Licenses" that do. The paperwork and tax stamp required by the NFA 1934 certainly could be considered licenses...

It was the GCA 1968 that set up the FFL license requirements for everyone "engaging in the business" of dealing in firearms, along with the age restrictions on sales, record keeping requirements, the ending of mail order sales, various import restrictions and several other things.

 

[Metal god]

So yeah just the last few posts makes my point . Is the country ready for no background checks , full auto , mail order no way to track firearms etc ? Nope

I disagree these things and the push back on them being unconstitutional will not effect the courts in the future. Maybe we get a real debate finally when anti’s start calling for a constitutional amendment in favor of some gun controls if everything gets struck down .

Based on Bruen I/we/someone should try to buy a silencer and when asked to fill out the paper work refuse and when denied file a lawsuit. According to Bruen in a couple years we should be able to mail order silencers Y/N . Same with refusing to fill out a 4473 Y/N —- Full auto ???? I can see this going the way of abortion . Let the states decide what gun control they want ??? To be clear , I’m saying I think thats the legal way to go . I can see the court compromising in that direction in the future.

I’d love all that but the country as a whole is not ready for that . We all know how many people actually read these rulings and base there full understanding on what they are told they mean . I see a lot of backlash in our future is all Im saying .

 

[Tom Servo]

I do not think that the general license requirement for retail sellers dates from the 30s

It does, but it's obscure. It was implemented in the (hard to google) 1938 Federal Firearms Act. That's also the act that set up classes of "prohibited persons." One of those classes was people convicted of a "crime of violence."

In 1961, "crime of violence" was quietly changed to “crime punishable by imprisonment for a term exceeding one year.” That meant a lot of minor felonies (which should be a oxymoron) and misdemeanors now serve as lifetime bans.

The 1968 GCA gave us the 4473.

Is the country ready for no background checks , full auto , mail order no way to track firearms etc ?

This sort of hyperbole doesn't help. First off, I can't imagine how the tracing system could be construed to be unconstitutional. Serial number requirements and regulations on manufacture will likely pass muster.

As for the rest, is it really that big of a deal? I, and several others in this thread, remember a time not THAT long ago when we could buy guns at 18 at the local hardware store. The world somehow kept turning.

In fact, when I was in high school, it wasn't that uncommon for students to have rifles in their cars. And how many school shootings did we have? Pretty much none.

I bring this up because large-scale school shootings and high-casualty mass shootings are a recent development. Guns haven't become more lethal. In fact, they're generally harder to get. The hardware hasn't changed. It's a software problem, and we won't make progress until we address that.

But we're lazy. We want instant "results," and politicians feed the need to "do something" by passing laws to limit access to firearms. But those laws don't work.

So now the courts are going to do their job and invalidate bad laws. It's up to the legislature (who have been utterly derelict on this) to to theirs and pass equitable laws. We have to think of new, and hopefully more thoughtful, ways to address the problem.