By Dave Workman
Like it or not, many lower federal courts are essentially defying the U.S. Supreme Court’s language in the 2022 landmark Bruen decision, and it may take another high court ruling to give them more direction.
That was the analysis from attorney Joseph Greenlee, director of Office of Litigation Counsel at the National Rifle Association. He spoke about the way courts have been addressing Second Amendment issues since the Supreme Court issued its historic June 2022 ruling in New York Rifle & Pistol Association v. Bruen.
Greenlee told his audience that, in general, the Bruen “test,” which eliminated the “two-step” way courts had been treating Second Amendment cases since the 2008 Heller ruling, was far more favorable. The previous two-step application, pitting government interests against individual rights, invariably allowed government to prevail in challenges. This is no longer the case, and Greenlee read off a lengthy list of litigation favorable to the Second Amendment since Bruen. Laws have been challenged in New Jersey, Massachusetts, Maine, Illinois, California and Hawaii.
“There is not a robust tradition of firearm regulation in American history,” he observed.
The government in the early days of the United States “generally had a far greater respect for the right to keep and bear arms than many modern governments,” Greenlee explained. He said there have been more Second Amendment victories in the three years since Bruen than ever before, and the pattern appears to be continuing.
Greenlee predicted the high court will, within the next couple of years, grant review to cases challenging bans on so-called “assault weapons” and “large-capacity magazines.” Likewise, the court may be ready to take a case involving the rights of young adults under age 21, although he acknowledged “the courts are deeply divided” on questions regarding the rights of citizens in the 18-20-year age group, even though historically they were expected to serve in militias and supply their own arms.
He further acknowledged that many of the lower courts are defying the Bruen ruling, “So, I think the supreme court is going to have to step in and provide further instruction…”
Another issue which may find its way to the Supreme Court is how people who use illegal drugs are prohibited from owning or possessing firearms. Courts are split on this issue, as well.
Without actually mentioning this, the current state of litigation illustrates the nation is still in the early stages of Second Amendment jurisprudence. But in the wake of the Bruen ruling, courts and local governments are faced with having to narrow any restrictions on Second Amendment rights.
All signs point to more litigation in the months and years ahead.
