On the 26th of April, the Fifth Circuit court issued their opinion in McRorey v. Garland. We did not win this case. This is a loss for the Second Amendment.
So what happened?
In 2022, shortly after Bruen, Congress had their Bruen tantrum. Since some rhinos decided to sell out The People, we ended up with the Bipartisan Safer Communities Act of 2022.
This is the monstrosity that is pushing every state to establish red flag infringements, as well as changing the language of who is involved in the business of selling firearms. It also adds “enhanced” background checks for adults less than 21 years of age.
The Fifth Circuit profoundly fucked up when they made this opinion.
This case presents the latest rendition of the question we face during the Bruen-Rahimi1 interregnum: What part of Bruen controls our evaluation of a firearm regulation? Its imposition of an historical showing to be made by the government? Or its various assurances that it did not disturb commonplace regulations in shall-issue regimes?
—No. 59 McRorey v. Garland, No. 23-10837, slip op. at 1–2 (5th Cir.)
This is not even a difficult question:
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Königsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 8 (U.S. 2022)
This is the holding. When evaluating a Second Amendment challenge, the court should first decide if the Second Amendment’s plain text covers an individual’s conduct. If it does, the burden shifts to the government.
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Drake v. Filko, 724 F. 3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. District of Columbia v. Heller, 554 U. S. 570, 635 (2008). Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” Ibid. And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, Shuttlesworth v. Birmingham, 394 U. S. 147, 151 (1969), rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305 (1940)—features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
—id. n. 9
The important thing to see is that this is footnote 9. This is not a holding. This is a footnote in dicta.
In this case, it is the latter. Therefore, we affirm the denial of a preliminary injunction.
—Published Opinion – #59, Att. #1 in McRorey v. Garland (5th Cir., 23-10837), No. 23-10837, slip op. at 2
This case is still in an interlocutory state. That means it will go back to the district court for more litigating before it is appealed back to the Fifth Circuit. By that time, there will be something out of the Supreme Court regarding some Second Amendment cases currently before them.
Perhaps recognizing this, plaintiffs characterize those “dicta” as conflicting with express holdings and assert that “[d]icta cannot supplant express holdings.” That is true.
But, in rejecting plaintiffs proposed approach, we do not supplant any holding. Bruen requires an historical showing by the government “[w]hen the Second Amendment’s plain text covers an individual’s conduct.” 597 U.S. at 24 (emphasis added). The plain text covers plaintiffs’ right “to keep and bear arms.” U.S. Const. amend. II. And on its face “keep and bear” does not include purchase—let alone without background check. That is so in either the contemporary or the Founding-era context.
—id. at 9
The plaintiffs are correct. Dicta cannot override holdings. The holding in Bruen was absolutely clear. It starts with “we hold”.
Commentary in a footnote on dicta is less than dicta.
A concurring opinion does not change the holding. Concurring opinions are just more dicta.
Background checks, in a foundation era historic context? The very concept is absurd.