In the wake of a landmark U.S. Supreme Court decision last year that significantly limits what the government can do to restrict guns, Democratic-led states have been quick to circumvent or test the limits of the ruling. Some have approved new gun restrictions. Oregon even passed a ballot initiative to ban high-capacity ammunition magazines.
But this week, supporters of the new gun measures suffered a pair of setbacks, underscoring the domino effect of the court’s decision.
On Tuesday, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that a 10-year-old Maryland law related to firearm licensing requirements was unconstitutional.
The same day, a state judge in southeastern Oregon found that a voter-approved ballot initiative in 2022 that would ban high-capacity magazines and require background checks and training for gun permits violated the state Constitution.
For Gun Owners of America, a lobbying group in Virginia that has been active in litigation, the twin rulings merited a news alert distributed to its members, announcing “good news for gun rights supporters to celebrate this Thanksgiving!”
In an email, Erich Pratt, the group’s senior vice president, said he was “excited” by Oregon’s ruling and found Maryland’s ruling “just as encouraging.”
“At the end of the day, more and more Americans are realizing that the government cannot be trusted with their security,” Pratt said, citing a new News21USA News poll showing that gun ownership had risen to record levels.
Legal scholars were more cautious about what the latest rulings portend, noting that other recent court decisions, such as in Illinois, and arguments in a new gun case before the Supreme Court suggested there was still some momentum for gun violence prevention laws..
Still, they said this week’s decisions reinforced an unmistakable trend in which judges, especially those appointed by Republican presidents, were interpreting the Second Amendment as broadly as possible.
“It’s part of the zeitgeist of the courts to say that we should take the right to keep and bear arms more seriously than we have,” said Jacob D. Charles, a law professor at Pepperdine University who has followed the gun regulations and court decisions. “There have been examples over the last year and a half where lower court rulings have repeatedly and significantly interpreted the Second Amendment quite broadly and struck down laws that were never considered unconstitutional before Bruen.”
Bruen is referring to the Supreme Court case New York State Rifle and Pistol Association v. Bruen, which has quickly become the shorthand of the battle over gun control, in the same way that Dobbs and Roe have become. become shorthand for the abortion debate.
In its June 6-3, 2022 decision, the Supreme Court dramatically changed the standard for firearms restrictions. Writing for the majority, Justice Clarence Thomas asserted that gun laws should be judged not by the long-standing practice of balancing the right to bear arms with the public interest, but by the text of the Second Amendment and the “ historical tradition” of gun regulation.
Since then, lower courts have struggled to search for references to obscure or forgotten regulations in an attempt to evaluate historical tradition. A federal judge in Indiana compared evaluating the constitutionality of gun laws to a “historical game of ‘Where’s Waldo?’”
Earlier this month, the Supreme Court’s conservative majority appeared willing during oral arguments to consider narrowing the scope of the Bruen case in a new case, United States v. Rahimi, and upholding a federal law that disarms domestic abusers.
Bruen’s fallout has also led to a rise in lawsuits challenging various gun laws, according to Giffords, a gun control group, with more than 450 decisions trying to interpret the case.
The new laws now being litigated in court take various forms.
New York, for example, passed a law that attempts to prevent people from carrying guns in “sensitive locations” such as Times Square, public transportation, sports venues and places of worship. The law has created confusion and generated numerous lawsuits.
Illinois banned high-powered weapons in January, in response to a mass shooting that occurred on July 4, 2022, in Highland Park. This month, the Chicago-based U.S. Court of Appeals for the Seventh Circuit upheld that ban.
Preliminary research indicates that Republican-appointed judges are much more likely to strike down gun regulation laws after Bruen, said one of the paper’s authors, Eric Ruben, a law professor at Southern Methodist University.
Such was the case this week with Maryland, when the federal appeals court split 2-1, with an appointee of former President Donald J. Trump writing the majority opinion.
In a statement, Randy Kozuch, executive director of the National Rifle Association’s Legislative Action Institute, said: “The Fourth Circuit Court’s decision to strike down Maryland’s restrictive gun licensing law sends a clear message: the fundamental right of law-abiding Marylanders to themselves -The defense must not be infringed.”
Oregon was different, because what was at stake was the state Constitution, not the Second Amendment. But in rural Harney County, where nearly 85 percent of voters said no to a ballot initiative that imposed new permit requirements and banned high-capacity magazines, Judge Robert S. Raschio concluded that part of the alarm about gun ownership was out of the question.
While mass shootings “have a significant impact on the American psyche,” they actually “have a very low frequency” and are “sensationalized by the media,” he said in his ruling.
In a statement, Oregon Attorney General Ellen Rosenblum, a Democrat, pledged to file an appeal and expressed confidence the state would win. Ultimately, the case could be heard by a state Supreme Court, whose seven members have all been appointed by a Democratic governor.
Eric Tirschwell, CEO and lead trial attorney at Everytown Law, described the post-Bruen period as similar to “a game of pingpong, where one day one side wins, the next day the other wins, and what we need is additional clarity for part of the Supreme Court.”
He added: “You can look at the last two days and say, ‘Yes, there are two unfortunate and ill-advised decisions that are likely to be reversed.’ “If we look at the last 30 days or so, there have been some very positive signs for gun safety and gun safety laws.”