A Closer Look at the Pivotal Bruen Decision
I think there's some good analysis in this piece, worth reading.
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The U.S. Supreme Court’s New York State Rifle & Pistol Assn., Inc. v. Bruen decision (issued June 23, 2022) was a pivotal ruling. Following up on the District of Columbia v. Heller (2008) and the McDonald v. City of Chicago (2010) decisions, Bruen reaffirmed private gun rights, quite solidly. Up until those three decisions, the Supreme Court had conspicuously ignored taking up any Second Amendment cases, for more than 50 years. But now, the highest court has made it quite clear that the right to keep and bear arms is nigh-on absolute.
I’ve mentioned the Bruen decision before in SurvivalBlog. But today, I’d like like to examine it more closely.
The majority opinion for Bruen was written by one of my heroes, Justice Clarence Thomas. He had previously lamented that the Second Amendment had been treated as “a disfavored right.” But in the 2022 decision, Justice Thomas set things write. He forthrightly wrote that the only gun regulations that can be deemed constitutional are ones that don’t infringe on conduct that is plainly covered by the text of the Second Amendment and that are “consistent with this Nation’s historical tradition.” This part of Bruen means that any gun law enacted at any level must have a demonstrable parallel in regulations that were in place at the time of the ratification of the Bill of Rights — meaning circa December, 1791. Thus, Bruen sets a very high bar for legislators to hurdle. If lawmakers cannot cite a similar law that existed after the War of Independence but before December, 1791, then any statute pertaining to arms of any description would be unconstitutional!
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FIRING THE OTHER BARREL
Just days after the Bruen decision was handed down, the Supreme Court also issued a decision in the West Virginia v. EPA case. This case will have a profound effect on executive branch agency rulemaking. By reaffirming that only congress can make new federal laws, the Supreme Court has effectively tied the hands of the “alphabet soup” agencies (EPA, ATF, OSHA, MSA, HUD, DOE, et cetera) in issuing any major rules that amplify or supersede existing laws. Thus, the ATF’s recent absurd redefinition of “frame or receiver” and their repeated waffling on pistol arm braces will almost surely be ruled as executive branch overreach. (Arm-braced pistols didn’t somehow magically become “short-barreled rifles” just because a man from a different political party took office as president.)
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Based on Bruen...the NFA and subsequent gun control laws are unconstitutional.
Based on WV vs EPA...the ATF can't be making up gun control rules as they see fit.
Too bad that both the NFA/GCA can't quickly be brought to SCOTUS for a ruling to strike them down based upon Bruen. As well as SCOTUS striking down the ATF's arbitrary rule making which creates law breakers.