B.L.U.F. An analysis of court battles pre-Bruen

Heller introduced two major changes to the gun rights litigation landscape, first it defined the scope of the Second Amendment to be individuals, not the militia and second it told the inferior courts that second amendment cases had to be analyzed using text, history and tradition.

What did this mean to us? It was the first time in decades that some of the worse laws in the land could be challenged.

Consider bringing a case saying the 1989 AWCA of CA was unconstitutional under the Second Amendment in the early 2000’s. At that time the Ninth Circuit court had issued their opinion that the Second Amendment only applied to militias. Furthermore, the states were allowed to regulated militias.

Because of this, the only entities that the Ninth Circuit court said had standing was the State in regards to the State’s militia.

In order to win your lawsuit you would have to win at the district level, unlikely, appeal to the circuit court and be granted a hearing and win, or you could lose at the circuit court level or be denied a hearing at the circuit court level and appeal to the Supreme Court.

The Supreme Court at that time wasn’t looking to hear a second amendment case.

In addition, the rules on appealing to the supreme court if the circuit court did not grant certiorari. Normally we speak of certiorari in regards to the Supreme Court but according to Cornell Law School web page it also happens at the appellate court level.

It is unclear from a brief bit of research when, if ever, a case denied a hearing at the circuit court level is allowed to appeal to the Supreme Court. It might just be that the Supreme Court just doesn’t hear those cases, in general.

In this instance the courts are stacked against us. The state legislature has created a law that they hope the state can defend in court, the population of the area might lean anti-gun, the district court and lower state courts all lean anti-gun, the appeals court (or state appeals court) lean anti-gun and the state supreme court likely leans anti-gun.

The ability to get past this bulwark of infringement is nearly impossible.

While this particular situation is based on the Ninth Circuit court and California, the same situation existed in the other anti-gun states. Those states that were huge infringers were also the states that existed within circuit courts that supported the concept that the second amendment only applied to the militia.

On the other hand, there were states and circuits that understood that the second amendment applied to The People. …,The Right of The People to keep and bear arms shall not be infringed.

But these courts didn’t have states attempting the huge infringements. At most they were minor infringements and the circuit courts struck them down and the states didn’t push to the Supreme Court.

It required good people living in anti-gun territories to stand up over and over again trying to get just one case through the infringement allowing circuits to the Supreme Court. This is expensive. Often when the plaintiffs (good guys) lost they were punished by having to pay attorney fees to the state.

Yet people did this over and over again. These were unsung heroes of the battle for the Second Amendment.

One of those heroes was Mr. Dick Heller. In 2003 he filed suit in the U.S. District Court for the District of Columbia. The district court dismissed the case for lack of standing. Heller et all appealed to the U.S. Circuit Court of Appeals for the D.C. They determined that only Heller had standing.

The United States Government then filed for certiorari and it was granted. Finally in March of 2008, 5 years after the case was first filed, the Supreme Court heard Oral Arguments. They decided in June of 2008 and the Heller decision came into existence.

Why was this such a big deal? It was a big deal because it meant that for the first time in decades the people could actually fight for their rights under the Second Amendment in court. The arguments presented by the state, prior to Heller were all about denying standing to the plaintiffs.

There was no need for the Government to defend their law(s). The plaintiffs were always arguing at a disadvantage to just get their cases heard. The arguments were all about standing, not about the infringement of any right. In most cases, the Due Process Clause and the Takings Clause were about getting standing.

Post Heller in 2008 we quickly saw the McDonald case which told the states that the Second Amendment applies to them as well. It wasn’t just the Federal Government that couldn’t infringe, it was the states as well.

This started the next stage of court battles.

While Heller said that the courts had to use text, history, and tradition of firearms regulation the inferior courts did not stick with just that.

Judges are human and quickly succumbed to the emotional blackmail of the state.

We might joke about If it saves just one child/life the blunt truth is that the claim of saving the life of a child is very very powerful.

While my wife really really didn’t get the problem with giving our younger children balloons to play with she looked at the Homer buckets with their warnings about it might kill small children and all of the plastic bags with the same types of warnings and shook her head in disbelief that this sort of warning was required. The reason it was required was that it took the death of only one child to turn the hearts of a jury against some corporation and suddenly a parent that killed their child was getting a huge payout from a corporation.

The courts were asked by the state to look at the good of the people vs the burden imposed on the individual. To see that the good of the many over weighed the good of the one.

Again, a powerful argument. The courts then looked at the issue and the earlier cases seemed to decide on a case by case basis.

The arguments then devolved into:

  • Was the the “core” right of self-defense implicated?
  • How much was the individual burdened by the law
  • Did the state have a compelling interest to pass the law
  • If there was a compelling interest and if there was a burden on the individual, was it better that the individual suffer or society as a whole

This was premised on the concept of the end justifies the means. Since there is common understanding that the end justifying the end isn’t really a good argument this was shortened to means-end.

Once there was case law at the circuit court level we find that second amendment cases quickly became pretty standardized.

The plaintiffs(good guys) would point out that their right to keep and bear arms was being infringed. The state would then grant that there was an infringement and immediately move to creating a situation where means-end could be applied.

That process normally consisted of the state explaining that the plaintiffs had other means of self-defense so that the infringement in question did not remove the core purpose of the second amendment. Because the Supreme Court in Heller used core lawful purpose of self-defense the state then argued that self-defense was the only core lawful purpose of self-defense.

The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
Heller v. DC @2787
We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel …, each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D.C.Code § 7-2507.02. The nonexistence of a self-defense exception is also suggested by the D.C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A.2d 744, 755-756 (1978).
Heller @2819

These are the places where Justice Scalia used the term. Because he used this term the state and lower courts determined that there were levels of infringements, which they called burden. “What is the burden on the core right of self-defense under the Second Amendment?” is the question the courts were asked to answer.

This leads to the primary use of the courts, to answer questions of fact. If everybody agrees on the facts there is no conflict. The court might then be asked if the law violates the rights of the individual.

When analyzing Rupp v. Bonta it quickly became apparent that under the means-end of post Heller that the state wasn’t interested in denying that their laws were infringements.

Plaintiffs’ due process claim is without merit. Their contention that the date and source registration requirements arbitrarily deprive owners who do not have that information of their assault weapons fails. The AWCA and its registration requirements are rationally related to the Legislature’s public-safety objectives, which are not just legitimate, but compelling. See Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015).

While a regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause, the AWCA’s date and source registration requirements survive a due process challenge as a matter of law. Regulations “survive a substantive due process challenge if they were designed to accomplish an objective within the government’s police power, and if a rational relationship existed between the provisions and purposes” of the regulation. Levald, 998 F.2d at 690 (emphasis in original and quotation omitted). The “threshold for a rationality review challenge asks only ‘whether the enacting body could have rationally believed at the time of enactment that the law would promote its objective.’” MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1130-31 (9th Cir. 2013) (emphasis added and quotation omitted).
Defendant’s Opposition to Plaintiffs’ Motion for Preliminary Injunction – Rupp v. Bonta

What this points out is that as late as 2017 the state was arguing that even due process was at the whim of the government. If the burden imposed on the individual of the state no allowing/following due process was not too much and it was for the common good, then the state could suspend your right of due process. The state argued similarly regarding the Takings Clause.

Having easily disposed of the Due Process and Takings Clauses the state moved on to the second amendment aspect.

Here the argument was that while the law might be an infringement, we don’t agree that it is, but that it might be and we, the state, will stipulate to that, it isn’t a burden on the core right of self-defense.

Once it is determined that it is not an infringement of the core right of self-defense the court is allowed to continue with means-end by choosing the level of scrutiny.

One useful way to think of a level of scrutiny is a way of expressing an overall balancing test, where what we’re balancing is the importance of what the government is trying to achieve by the alleged rights violation or classification (hereafter “government action”) and necessity of the government action to the government’s ends against the perniciousness of the kind of government action under consideration. Then the choice between the three levels of scrutiny, strict scrutiny, intermediate scrutiny, or rational basis scrutiny, is the doctrinal way of capturing the individual interest and perniciousness of the kind of government action. Race discrimination is really dangerous and nasty, so we’re going to apply strict scrutiny to it; violating a fundamental right like the right to vote, ditto. Regulating commercial speech (i.e., advertisement) under the 1st Amendment is probably less dangerous and nasty than regulating speech for its political content, so it only gets intermediate scrutiny, and so forth.
14th Amendment Course Note on levels of scrutiny by Paul Gowder
Strict Scrutiny is what the Court applies to fundamental rights violations (at least formally, in name—in practice it often applies something else) and suspect classifications under the Equal Protection Clause
Intermediate Scrutiny

Like strict scrutiny, the burden of proof is on the government, and like strict scrutiny, you can’t use after-the-fact invented justifications.

The big difference, however, is in the actual level of scrutiny applied. Where for strict scrutiny, the government needs a compelling interest, in intermediate scrutiny the government merely needs an important interest. And where for strict scrutiny, the government action has to be narrowly tailored to the interest, in intermediate scrutiny the government action must only be substantially related to the interest.

Rational Basis

As we know by now, rational basis is the default rule for if we don’t have some other standard of review that applies. And rational basis is extremely deferential. The court will uphold a government action under rational basis if it’s rationally related to a legitimate government interest.

Rational basis is easy. Basically, the government almost always wins. First, the government merely needs a “legitimate” interest, which can be something like administrative convenience or saving a little bit of money.

The state and courts couldn’t get away with Rational Basis so they tried to get the courts to apply Intermediate Scrutiny. Under intermediate scrutiny they just had to prove that the state had an important interest and that the law was substantially related to that interest.

This is easy. The state just has to say “This law is for public safety.” The plaintiffs then have to argue that it isn’t for safety. This is an extremely difficult case to make. It is entirely possible to look at a ban and say but it will save a child! and that is both important and substantially related to that interest.

The thing the state did not want to happen is to have the courts decide to apply text, history, and tradition.

This is what Judge Benitez did. He looked at the case before him, a magazine ban, and applying the Supreme Courts opinion in Heller said that the Ninth Circuit Court of Appeals had misinterpreted the opinion. That he, at an inferior court, was doing it right.

The Ninth Circuit court than slapped him down. Just like they had done previous 2A cases.

In this case though, Virginia Duncan and her team didn’t stop with the Ninth Circuit court and applied for certiorari. The Supreme Court heard the request in conference and did not grant certiorari. They also did not deny it. The case sat in limbo until Bruen.

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One thought on “What was the legal landscape pre <i>Bruen</i>”
  1. Even after Bruen, they’re doing everything in their power to maintain control. Wash DC’s latest brief says that they can restrict licenses because there were laws against Indians, slaves, and free blacks owning guns during colonial times. They literally said that.

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