In the wake of a landmark U.S. Supreme Court decision last year that significantly limits what the government can do to restrict guns, states led by Democrats have scrambled to circumvent or test the limits of the ruling. A few have approved new gun restrictions. Oregon even passed a ballot initiative to ban high-capacity ammunition magazines.
But this week, supporters of the new gun measures suffered a pair of setbacks, underscoring the rippling effect of the court’s decision.
On Tuesday, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that a 10-year-old Maryland law related to licensing requirements for handguns was unconstitutional.
On the same day, a state judge in southeastern Oregon concluded that a ballot initiative approved by voters in 2022 that would prohibit high-capacity magazines and require background checks and training to obtain gun permits violated the state constitution.
For the Gun Owners of America, a lobbying group in Virginia that has been active in litigation, the twin rulings merited a news alert distributed to its members, heralding “good news for gun rights supporters to celebrate this Thanksgiving!”
In an email, Erich Pratt, the group’s senior vice president, said he was “thrilled” by the ruling in Oregon and found the Maryland one “just as encouraging.”
“At the end of the day, more and more Americans are realizing the government cannot be trusted with their safety,” Pratt said, citing a new poll from NBC News showing that gun ownership had been rising to record levels.
Legal scholars were more circumspect about what the latest rulings portended, noting that other recent court decisions, such as in Illinois, and arguments in a new gun case before the Supreme Court suggested that there was still some momentum for gun violence prevention laws.
Still, they said that this week’s decisions reinforced an unmistakable trend in which judges, especially ones appointed by Republican presidents, were interpreting the Second Amendment as broadly as possible.
“It’s part of the zeitgeist of the courts saying that we should take the right to keep and bear arms more seriously than we have been,” said Jacob D. Charles, a law professor at Pepperdine University who has tracked gun regulations and court decisions. “There have been examples over the last year and a half where lower court rulings have been repeatedly and significantly been reading the Second Amendment pretty expansively, and striking down laws that were never thought to be unconstitutional before Bruen.”
Bruen refers to the Supreme Court case New York State Rifle &Pistol Association v. Bruen, which has quickly become the shorthand reference for the battle over gun control, in much the way that Dobbs and Roe have become shorthand in the abortion debate.
In its 6-3 decision in June 2022, the Supreme Court dramatically shifted the standard for firearm restrictions. Writing for the majority, Justice Clarence Thomas asserted that gun laws should be judged not by the longstanding practice of balancing gun rights against public interest, but by the Second Amendment’s text and the “historical tradition” of gun regulation.
Since then, lower courts have struggled to hunt down references to obscure or since-forgotten regulations in attempts to assess historical tradition. One federal judge in Indiana likened the assessment of the constitutionality of gun laws to a “game of historical ‘Where’s Waldo?’”
Earlier this month, the Supreme Court’s conservative majority appeared willing during oral arguments to consider narrowing the scope of the Bruen case in a new case, United States v. Rahimi, and uphold a federal law disarming domestic abusers.
The aftermath of Bruen has also prompted a surge in lawsuits challenging various gun laws, according to Giffords, a gun control group, with more than 450 decisions trying to interpret the case.
The new laws now being litigated in the courts take various forms.
New York, for instance, passed a law trying to prevent people from carrying guns in “sensitive locations” like Times Square, public transit, sports venues and houses of worship. The law has created confusion and generated numerous lawsuits.
Illinois banned high-powered guns in January, as a response to a mass shooting on July 4, 2022, in Highland Park. This month, the 7th U.S. Circuit Court of Appeals, based in Chicago, upheld that ban.
Preliminary research indicates that judges appointed by Republicans are far more likely to strike down gun regulation laws after Bruen, said one of the paper’s authors, Eric Ruben, a law professor at Southern Methodist University.
Such was the case this week with Maryland, as the federal appellate court split 2-1, with an appointee of former President Donald Trump writing the majority opinion.
In a statement, Randy Kozuch, executive director of the Institute for Legislative Action at the National Rifle Association, said: “The Fourth Circuit court’s decision to overturn Maryland’s restrictive gun license law sends a clear message: Law-abiding Marylanders’ fundamental right to self-defense must not be infringed.”
Oregon was different, because it was the state constitution, not the Second Amendment, at stake. But in rural Harney County, where almost 85% of voters said no to the ballot initiative imposing new permit requirements and banning high-capacity magazines, Judge Robert S. Raschio concluded that some of the alarm over gun ownership was misplaced.
While mass shootings “have a significant impact on the psyche of America,” they actually “rank very low in frequency” and are “sensationalized by the media,” he said in his ruling.
In a statement, Oregon’s attorney general, Ellen Rosenblum, a Democrat, pledged to file an appeal and expressed confidence that the state would win. The case could ultimately be heard by a state Supreme Court whose seven members have all been appointed by a Democratic governor.
Eric Tirschwell, executive director and chief litigation counsel of Everytown Law, described the post-Bruen period as akin to “a game of pingpong, where one day one side wins, the next day the other wins, and what we need is additional clarity from the Supreme Court.”
He added: “You can look at the last two days and say, ‘Yes, there are two decisions that are unfortunate and wrongheaded that are likely to be reversed.’ If you zoom out to the last 30 days or so, there’s been some very positive signals for gun safety and gun safety laws.”
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