Last week’s Supreme Court ruling in New York State Rifle & Pistol Association Inc. v. Bruen was a historic moment for gun rights in America. Lest 2nd Amendment advocates engage in a lengthy celebration, however, they had best prepare for more pitched battles at the state and local levels, where firearms opponents will fiercely defend their turf.
An individual right to possess a firearm was – finally – recognized by the Supreme Court in its 2008 Heller decision, and extended to all the states two years later in McDonald. Extending that fundamental natural right to self-preservation outside one’s home, which is the essence of last week’s ruling, serves also as a welcome update to the Court’s almost plodding effort to reclaim gun rights from decades of liberal encroachment.
Nevertheless, the decision, important as it is, merely shifts the theater of operations from the national to the state and local levels where Justice Clarence Thomas’ opinion in Bruen, excellent in form and substance, in effect ushers in a new phase of Leftist scheming on gun control.
Like Heller, Bruen is pivotal in impact, but limited in scope. In a concurring opinion supplementing Thomas’ six-member majority opinion, Justice Brett Kavanaugh (joined by Chief Justice Roberts), stressed that the ruling would not necessarily limit the ability of states to establish requirements for concealed carry – only that they cannot arbitrarily deny the right to carry. As with Heller, in the uncertainty created by Kavanaugh’s opinion, we now will be forced to contend with myriad regulatory tricks by local and state governments to undermine this latest ruling.
Immediately after Heller, for example, District of Columbia officials went to work finding loopholes around the “individual right” to keep and bear arms affirmed by the Supreme Court.
As documented by journalist Emily Miller, D.C. enacted a costly 17-step process for gun permits, including “five hours of mandatory training that had to be completed outside the District, and multiple trips to D.C. Metropolitan Police Department (MPD) headquarters during business hours.” This was in addition to the city’s ban on semiautomatic firearms, a requirement that gun owners re-register firearms every three years, a limit of registering only one handgun every 30 days, and a ban on both open and concealed carry, all of which deeply undermined, the High Court’s ruling.
It took multiple court challenges and nearly a decade to undo post-Heller gun control measures concocted by D.C. officials, costing taxpayers a fortune to partially restore constitutional rights thought to have been “guaranteed” by the 2008 decision.
Even today, D.C. regulators continue to make it nearly impossible for commercial firearm stores to operate within the city. Aside from the police department itself, which for a time was the only federally licensed dealer in the jurisdiction, there are currently only two active FFLs for citizens to use to take possession of firearms lawfully purchased online.
D.C.’s persistent gaming of Supreme Court rulings is not an outlier example of what anti-gun bureaucrats will do to obstruct what they see as a hostile legal landscape. It is the new playbook.
Extreme laws like New York’s have now been deemed unconstitutional by the highest court in the land, but the Left is not going to suddenly surrender and accept the constitutionality of the Second Amendment. In states like New York, Washington, California, and Connecticut, led by politicians who see banning firearms as a moral imperative and a response to a “national emergency” of gun violence, the strategy remains one of pushing the limits of Supreme Court rulings and forcing citizens to challenge them in expensive, years-long court battles.
The gun control movement considers it has nothing to lose, and even if they find themselves about to lose in court and facing yet another national precedent for gun rights, they can always do as New York City did in 2020, and change the law right before a judicial decision is rendered.
In a very practical sense, the Bruen decision is not the end of the fight for the primacy of the Second Amendment. It is just beginning, and every election at every level and for every position on the ballot, from sheriff to district attorney, and from judge to governor, will play a role.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
