By Rob Morse
Laws can be interpreted many ways. We seek guidance from the courts to know what is legal and what is not. The US Supreme Court has largely ignored the right to bear arms compared to the number of decisions the court has rendered in other areas. As a result, we don’t have enough decisions to draw a clear map of where our rights begin and end.
Now, however the court has issued an opinion on the right to bear arms in public. This case has redefined the legal landscape and has given us a few rules to go by. Let’s look at some of the unanswered questions to see if we may draw further conclusions.
The Court’s Bruen ruling said that states may require carry permits, but they must issue them to ordinary people who are not criminals. Ordinary people must be able to carry a personal firearm in ordinary places where people congregate. Licensing cannot be excessively delayed or expensive.
Now the ruling will be applied to other situations, other limits on the right to keep and bear arms. We first look to the plain text of the Bill of Rights. Based on that text, are the actions in question covered by the Second Amendment? When in doubt as to the scope or applicability of a law, we then consider the history of use when the Bill of Rights was ratified. We are to draw analogies from that period to the present day.
There are no longer tiered levels of examination or scrutiny. If the law in question materially limits the right to keep and bear arms, then, with remarkably few exceptions, under Bruen the law will be an infringement on Second Amendment rights.
Here are a few things to think about . . .
- The court said that the Second Amendment is a full and equal right, the same as the others in the Bill of Rights. We don’t yet know how to treat the victims who were unjustly prosecuted under unconstitutional laws that are now on the books. A handful of Democrat-controlled states charged thousands of people with the non-violent crime of carrying a firearm without a permit that the state refused to issue to them. Most of these victims were black and brown young men. How do we make the victims whole again after the state took their fortunes and years of their lives in prison?
- If the right to bear arms in public is a full and equal civil right, then why do I need to seek and receive dozens of permits to exercise that right as I travel from state to state? We didn’t have to do that in the 1790s.
- There was no general prohibition outlawing the bearing of arms in churches when the Constitution and the Bill of Rights were ratified. State laws that ban carrying arms in houses of worship today are a clear infringement and unconstitutional (each church or synagogue, can, of course, decide to ban them on their own).
- There were no widespread and broadly applied state laws restricting the right to bear arms in taverns and inns at the Founding. State laws that limit the right to bear arms as we travel and eat today are infringements on the right to bear arms and should be unconstitutional.
- There were no widespread or broadly enforced laws in the 1790s requiring that firearms be stored in an inoperable condition, separate from ammunition. Those laws today are infringements of Second Amendment rights.
- There were no general prohibitions restricting the right to bear arms on ferries, barges, and stages, the mass transportation at the time. State laws restricting law-abiding citizens from carrying in a parking lot, on a subway, bus, ferry, or train today are unconstitutional infringements on our civil rights.
- There were no general prohibitions against carrying arms at a horserace or at a public amphitheater. Those were the stadiums of their day. Today, state laws restricting law-abiding citizens from carrying their personal firearms at sporting events that receives public funds are unconstitutional.
- In the 1790s, there were no laws outlawing the bearing of arms in hospitals. Denying a doctor, nurse, technician, staff member, or a visitor their right of self-defense violates their civil rights.
- The laws of the 1790s didn’t create a two-tiered system of rights where politicians, judges, and other government officials were allowed to carry in places where ordinary citizens were disarmed. The exceptions may be inside a prison or jail, a courtroom, or inside statehouses when the legislature is in session. Disarming citizens in places where politicians are free to go armed is an infringement of the right to bear arms.
- Citizens of the 1790s didn’t face broad legal prohibitions from bearing personal firearms that met or exceeded the performance of arms born by the military forces or law enforcement agents of the day. We must either restrict our military and police to using only the man-portable weapons we allow civilians to carry today, or we must allow civilians to carry weapons equal to those used by our military and police. Anything else is unconstitutional.
- As a coequal civil right, our right to keep and bear arms cannot be removed without due process in a court of law. Gun owners are assumed innocent until proven guilty and have the right to face their accusers and be represented by a qualified attorney. If necessary, the state must promptly provide representation in the form of a public defender. Like any other right, false accusations and malicious prosecution can result in a suit for damages. How many “red flag” confiscation laws now on the books comply with that standard?
- A sheriff of the 1790s knew the criminals in his county. Today, a policeman can check my license, my vehicle registration, and my legal status in seconds from the roadside. We can process an ID and credit card from around the world equally quickly for a few cents. That means it should take no more than a minute to perform a background check and it should cost pennies at most. Once we have done one background check to own a firearm, then repeated background checks to buy ammunition, secure a carry permit, or to buy another firearm are abuses and impediments of the right to bear arms.
That’s just a cursory list and I am not an attorney, but there are a lot of laws currently on the books that don’t seem to stand up to scrutiny under the rules set out by Heller fourteen years ago and now clarified by Bruen. That means there’s a lot of work to do in the months and years ahead.
This article originally appeared at Slow Facts and is reprinted here with permission.