Daily Archives: October 7, 2023

WASHINGTON, D.C.Last week, U.S. Sen. Mike Braun, R-Indiana, and 20 other Republican senators introduced a bill that, if passed, would prevent the president and secretary of Health and Human Services from declaring a public health emergency to impose gun control. The governor of New Mexico did so earlier this month.

The Protecting the Right to Keep and Bear Arms Act is cosponsored by senators from Arkansas, Florida, Idaho, Iowa, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Wisconsin and Wyoming.

Braun previously introduced this idea as a bill in 2021 and also as an amendment in July 2023. Braun reasoned that this bill was necessary in the initial press release by saying gun control organizations were encouraging the Biden Administration to administratively restrict your right to keep and bear arms. Sixteen of the cosponsors for the 2023 measure also supported the measure in 2021. U.S. Sen. Todd Young, R-Indiana, supported a similar bill in 2021 but is not currently listed as a cosponsor of this version.

U.S. Sen. Mike Braun, R-Indiana.

This latest attempt comes after Gov. Michelle Lujan Grisham, D-New Mexico, instituted a public health emergency for part of her state earlier this month, placing a 30-day ban on the right to open or conceal carry firearms in public. When announcing the temporary ban, Lujan Grisham said it was to curb gun violence and illegal drug use in Albuquerque and Bernalillo counties.

Lujan Grishams ban sawbipartisan backlash from the police tasked with enforcing the ban and lawmakers who questioned the constitutionality of the order. The ban drew lawsuits from gun-rights groups as soon as it went into effect. Some lawmakers even went so far as to call for her impeachment.

Many said that public health emergencies would not be abused to impose gun control, but after we saw the vast expansion of executive power during COVID and the New Mexico Governor use a public health emergency to effectively suspend the 2nd Amendment in her state, no one can doubt that this needs to be addressed, Braun said in a press release. We need to set into law that no one can remove the right to defend ourselves and our families with the stroke of a pen.

Lujan Grishams order comes after more that a year of gun-control activist groups calling for the Biden administration and Health and Human Services Secretary Xavier Becerra to do so at the national level. The groups began urging Biden to make an emergency declaration on gun violencemore persistently after the Robb Elementary School shooting in Ulvade, Texas, in May 2022.

Recently, The Washington Post reported insider scoop on the Biden administrations plans to create a new office to address gun violence.

Greg Jackson, the executive director of the Community Justice Action Fund, and others in gun violence prevention groups could have key roles in the office, according to the Posts sources.

Gun violence is currently the leading cause of premature death in the U.S., with guns killing more than 38,000 people and causing nearly 85,000 injuries each year, according to the American Public Health Association. The American Medical Assocation declared gun violence a public health crisis in 2016 after 20 years of continued gun violence was attributed as a major cause of death in the U.S.

In the press release, Braun raised the potential for the Biden administrations new office to have gun-control activists in these roles as a ploy to declare a public health emergency and impose gun control.

In the press release about the bill, U.S. Sen. Kevin Cramer, R-North Dakota, said, Its simple: terrorist attacks are national emergencies, and pandemics are public health emergencies; gun are neither.

Using legitimate presidential power as a backdoor to violate the Second Amendment is disingenuous at best and diminishes the gravity of real emergencies, he said.

U.S. Sen. Thoms Tillis, R-North Carolina, said in a press release, The illegal action by the Governor of New Mexico to suspend the 2nd Amendment through a public health emergency should be concerning to every American.

I am deeply concerned that this stunt might be replicated on the national level by a left-wing politician in an effort to enact gun control, and Congress must take action to prevent that from ever happening, Tillis said.

After Braun introduced the bill on behalf of himself and the 20 cosponsors in the first congressional session on Sept. 21, the bill was referred to the Senates Committee on Homeland Security and Governmental Affairs.

Link:
Second Amendment proponents fear public health emergencies ... - The Statehouse File

Video: Joining Chicago Tonight to discuss cases before the Supreme Court are Carolyn Shapiro, co-director of the Chicago-Kent College of Laws Institute on the Supreme Court; and David Franklin, associate professor at DePaul Universitys College of Law. (Produced by Blair Paddock)

(CNN) Looking at an upcomingSupreme Courtterm from the vantage point of the first Monday in October rarely tells the full story of what lies ahead, but the docket already includes major cases concerning the intersection between the First Amendment and social media, gun rights, racial gerrymandering and the power of the executive branch when it comes to regulation.

The court will still determine if it will hear oral arguments on issues such as medication abortion and transgender rights, not to mention the possibility of a flurry of emergency requests related to the 2024 election.

Here are some of the key cases on which the court will hear oral arguments this term:

Second Amendment: Domestic abuser gun restrictions

After the Supreme Court issued a major decision last year expanding gun rights nationwide, lower courts began reconsidering hundreds of firearms regulations across the country under thenew standardcrafted by JusticeClarence Thomasthat a gun law passes legal muster only if it is rooted in history and tradition.

On the heels of that decision, a federal appeals court invalidated a federal law that bars an individual who is subject to a domestic violence restraining order from possessing a firearm. That law, the 5th US Circuit Court of Appeals ruled, is an outlier that our ancestors would never have accepted.

The Biden administration has appealed, saying the ruling threatens grave harms for victims of domestic violence.

In 2019, nearly two-thirds of domestic homicides in the United States were committed with a gun, according to Everytown for Gun Safety.

Lawyers for Zackey Rahimi, a man who was prosecuted under the law in 2020 after a violent altercation with his girlfriend, have urged the justices to let the lower court opinion stand, arguing in part that there is no law from the founding era comparable to the statute at hand.

Racial gerrymandering: South Carolina congressional maps

Justices will consider a congressional redistricting plan drawn by South Carolinas Republican-controlled legislature in the wake of the 2020 census. Critics say it was designed with discriminatory purpose and amounts to an illegal racial gerrymander.

The case focuses the courts attention once again on the issue of race and map drawing and comes after the court ordered Alabama to redraw the states congressional map last term to account for the fact that the state is 27% black. The decision, penned by Chief Justice John Roberts, surprised liberals who feared the court was going to make it harder for minorities to challenge maps under Section 2 of the historic Voting Rights Act.

In the latest case, the South Carolina State Conference of the NAACP and a Black voter named Taiwan Scott, are challenging the states congressional District 1 that is located along the southeastern coast and is anchored in Charleston County. Although the district consistently elected Republicans from 1980 to 2016, in 2018 a Democrat was elected in a political upset, though a Republican recaptured the seat in 2020.

The person who devised the map has testified that he was instructed to make the district more Republican leaning, but that he did not consider race. He did, however, acknowledge that he examined racial data after drafting each version and that the Black voting age population of the district was likely viewed during the drafting process.

A three-judge district court panel struck down the plan in January, saying that race had been the predominant motivating factor. To achieve a target of 17% African American population,the court said, Charleston County was racially gerrymandered and over 30,000 African Americans were removed from their home district.

Power of federal agencies: Herring fishermen

In the latest attack against the so-called administrative state, the justices are considering whether to overturn decades old precedent to scale back the power of federal agencies, impacting how the government tackles issues such as climate change, immigration, labor conditions and public health.

At issue is an appeal from herring fishermen in the Atlantic who say the National Marine Fisheries Service does not have the authority to require them to pay the salaries of government monitors who ride aboard the fishing vessels.

In agreeing to hear the case, the justices signaled they will reconsider a1984 decision Chevron v. Natural Resources Defense Council that sets forward factors to determine when courts should defer to a government agencys interpretation of the law. First, they examine a statute to see if Congress intent is clear. It if is then the matter is settled. But if there is ambiguity the court defers to the agencys expertise.

Solicitor General Elizabeth Prelogar told the justices that the agency was acting within the scope of its authority under the Magnuson-Stevens Fishery Conservation and Management Act and said the fishermen are not responsible for all the costs. The regulation was put in place to combat overfishing of the fisheries off the coasts of the US.

Representing the fishermen, former Solicitor General Paul Clement argues that the government exceeded its authority and needs direct and clear congressional authorization to make such a demand. The net effect of Chevron, Clement said, is that it incentives a dynamic where Congress does far less than the Framers anticipated, and the executive branch is left to do far more by deciding controversial issues via regulatory fiat

Independent agency power: Consumer Financial Protection Bureau

For the second time in recent years, the court is taking aim at a watchdog agency created to combat unfair and deceptive practices against consumers, in a case that could deal a fatal blow to the future of the agency and send reverberations throughout the financial services industry.

At the center of the case at hand is theConsumer Financial Protection Bureau an independent agency set up in the wake of the 2008 financial meltdown that works to monitor the practices of lenders, debt collectors and credit rating agencies.

Congress chose to fund the CFPB from outside the annual appropriations process to ensure its independence. As such, the agency receives its funding each year from the earnings of the Federal Reserve System. But the conservative 5th US Circuit Court of Appeals held last year that the funding scheme violates the Appropriations Clause of the Constitution, which, the court said ensures Congress exclusive power over the federal purse.

According to the CFPB, the agency has obtained more than $18.9 billion in ordered relief, including restitution and canceled debts, for more than 195 million consumers, and more than $4.1 billion in penalties, in actions brought by the agency against financial institutions and individuals that have broken federal consumer financial protection laws.

A handful of other agencies have similar funding schemes including the Federal Reserve, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency.

Three years ago, the Supreme Court limited the independence of the CFPB by invalidating its leadership structure. A 5-4 court held that the structure violated the separation of powers because the president was restricted from removing the director, even if they had policy disagreements.

Agency regulatory authority: Securities and Exchange Commission

The justices are looking at the in-house enforcement proceedings of the US Securities and Exchange Commission in another case that invites the conservative majority to pare back the regulatory authority of federal agencies.

The courts decision could impact whether the SEC and other agencies can conduct enforcement proceedings in-house, using administrative courts staffed with agency employees, or whether such actions must be brought in federal court.

On one side are critics of such agency courts who argue that they allow federal employees to serve as prosecutors, judges and jury, issuing rulings that could particularly hurt small businesses. On the other side are those who point out that several agencies, including the Social Security Administration, have such internal proceedings because the topics are often complex and the agency has more expertise than a federal judge.

The case arose in 2013 after the SECbrought an enforcement actionagainst George Jarkesy, who had established two hedge funds with his advisory firm, Patriot28, for securities fraud.

The5th Circuit ruledthat the SECs proceedings deprive individuals of their Seventh Amendment right to a civil jury. In addition, the court said that Congress had improperly delegated legislative power to the SEC, which gave the agency unconstrained authority at times to choose the in-house administrative proceeding rather than filing suit in district court.

OxyContin: Historic Purdue Pharma bankruptcy settlement

In December, the court will examine the historic multibillion-dollar Purdue Pharma bankruptcy settlement with several states that would ultimately offer the Sackler family broad protection from OxyContin-related civil claims.

Until recently, Purdue was controlled by the Sackler family, who withdrew billions of dollars from the company before it filed for bankruptcy. The family has now agreed to contribute up to $6 billion to Purdues reorganization fund on the condition that the Sacklersreceive a releasefrom civil liability.

The Biden administration, representing the US Trustee, the executive branch agency that monitors the administration of bankruptcy cases, has called the plan exceptional and unprecedented in court papers, noting that lower courts have divided on when parties can be released from liability for actions that caused societal harm.

The plans release absolutely, unconditionally, irrevocably, fully, finally, forever and permanently releases the Sacklers from every conceivable type of opioid-related civil claim even claims based on fraud and other forms of willful misconduct that could not be discharged if the Sacklers filed for bankruptcy in their individual capacities, Prelogar argued in court papers.

First Amendment: Social media content

For the second year running, the justices will leap into the online moderation debate and decide whetherstates can essentially controlhow social media companies operate.

If upheld, laws from Florida and Texas could open the door to more state legislation requiring platforms such as Facebook, YouTube and TikTok to treat content in specific ways within certain jurisdictions and potentially expose the companies to more content moderation lawsuits.

It could also make it harder for platforms to remove what they determine is misinformation, hate speech or other offensive material.

These cases could completely reshape the digital public sphere. The question of what limits the First Amendment imposes on legislatures ability to regulate social media is immensely important for speech, and for democracy as well, said Jameel Jaffer, the executive director of Columbia Universitys Knight First Amendment Institute, in a statement.

Its difficult to think of any other recent First Amendment cases in which the stakes were so high, Jaffer added.

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From the Second Amendment to OxyContin Settlements, Here Are ... - WTTW News

The Goldwater Institute teamed up with the Cato Institute today to file a brief in an important Second Amendment case now pending before the U.S. Supreme Court. The caseone of only a handful of Second Amendment cases ever to come before the courtinvolves a federal law that prohibits anyone who has been subjected to a domestic violence restraining order from possessing a firearm. Its certainly reasonable to want to keep violent criminals from using guns, but as we argue in the brief, this law goes far beyond reasonable regulations.

In fact, it entirely disarms anyone who has been subjected to such an order from having a guneven if that person has a special need for one, or lives in an entirely different state from the person who got the restraining order. And a person against whom an order is issued has no right even to be informed that the order will entirely bar him or her from having a gun.

We dont treat other individual rights this way. As the brief notes, the threadbare procedures set forth in [the federal law] would be considered woefully inadequate to support the abrogation of other fundamental rights such as the ability to petition the government for redress of grievances by attending a city council meeting, or accessing the Internet, or traveling about the country. The right of armed self-defense is no less important and no less entitled to an appropriate measure of procedural due process.

You can read the brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.

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Goldwater Institute Urges Supreme Court to Respect Second ... - The Creative Corner

As a Floridian, I have carried a concealed firearm for years, everywhere, except where prohibited by law or a businesss policy. Hanging in my office is a 100 percent American-made Gadsden flag. I once voted solely for Republicans, including twice for President Donald Trump, and once for Gov. Ron DeSantis (in 2018). I was once a lifetime member of the National Rifle Association. I have publicly spoken at gun owners' groups. I once owned an AR-15.

And I'm here to tell you that Second Amendment mythologies and revisionist history continue to result in needless firearm-related deaths, suffering and trauma. If law-abiding gun owners do not start publicly speaking up, we cannot expect to find solutions to our nation's unacceptable levels of gun-related violence.

I understand and appreciate why gun owners the large majority of whom are law-abiding are reluctant to risk the slings and arrows of the Republican Party, the Fox/Breitbart/Alex Jones/Tucker Carlson conspiracy theorists and pundits, and, perhaps, even their friends and family.

I ask gun owners this, respectfully: Which is more uncomfortable the pain of potential ostracization, or the pain of a nonstop loop of stochastic and targeted terrorism, aided and abetted by an endless supply of handguns and rifles, the latter often equipped these days with 30 bone-shattering rounds per magazine? If you're a parent with school-age children, the fear of a Columbine, Parkland or Uvalde-type event is impossible to fully suppress.

A little over a month ago, in Jacksonville (Florida's most-populous city), we saw a ghastly mass shooting perpetrated by a delusional neo-Nazi yearning for the resurrection of the mythical Aryan super-race; in addition to taking his own life, he made his contribution to the ever-growing tabulation of gun-death statistics gun-dead, murdering Anolt Joseph "A.J." Laguerre, 19; Jerrald Gallion, 29; and Angela Michelle Carr, 52.

Such a violent death from machines with the sole purpose of killing so swiftly that their victims are rarely allowed time for the dignity of final breaths is uniquely American. A victim of any age is of course traumatic for their bereaved, grieving families, but the death of a teenager qualifies as yet another Molochian offering. Jacksonville's mayor, Donna Deegan, took office in July; it took less than two months for her administration to be christened with the blood of gunned-down innocents. Responding to a mass shooting is a rite of passage for every elected executive of virtually every jurisdiction in America. Deegan now joins the club of elected officials whose membership increases daily.

And what about our governor? As a husband and father of three, he doesn't want to be surrounded by too many guns himself, even as he peddles the inane hypothesis that more guns make us more secure, which I suspect wasn't part of the curricula of his Yale and Harvard Law educations. DeSantis signed a permitless carry law earlier this year, and would surely sign an open permitless carry law if our legislature passes it. I'm relieved he thinks that anti-Black murder (not "racially-motivated" murder, whatever that means) is "unacceptable," but I wish he could have mustered up even half the righteous indignation he exhibited toward Dr. Anthony Fauci at the recent 2024 candidates debate aired by Fox News. Oh well.

Google the name of a municipality name, and odds are the next word in the search will be "shooting"; if that word does not appear, consider that place very fortunate, and pray it remains that way.

Unfortunately, it's unlikely that your town or city will remain unaffected by this bloodshed forever.

Oh, for all the flack that Democrat-majority cities receive from the right, Jacksonville has long been the most-populousGOP-controlled city. Even with the recent election of Deegan, a Democrat, 13 of the 19 city council seats are held by Republicans; the local sheriff, supervisor of elections and state attorney, among other local elected officials, are also Republicans.

As for the purported urban/rural divide, in which big cities are wastelands of violence and rural areas are utopias? Another mythology propagated by GOP politicians and their yellow journalists.

Responsible gun owners: Are you OK with child sacrifice? I am certain you are not; but if we don't hear from you loudly and frequently our necessary voices are suffocatedby the most politically traumatized voices.

Those who carry a firearm, such as myself, should be especially vocal: We are the ones who take an unofficial oath to protect our families and innocents. Though the "good guy with a gun" is more myth than substance, it is true that defensive gun use likely happens on a daily basis, given that Americans own 400 million (or more) guns and several trillion rounds of ammunition. It was not helpful that the CDC under the Biden administration removed information on defensive gun use from its website; that unforced error undermines gun safety advocacy.

Even when I was deep down the MAGA rabbit hole, from 2015 until the summer of 2021, I was not a Second Amendment absolutist. But I was close enough. (Some of the reasons I left the manufactured reality of MAGA are catalogued here.)

To paraphrase Hemingway, my personal and political epiphany occurred gradually and then, suddenly, all at once. One of the results of my road-to-Damascus moment was an increasing discomfort with an official GOP platform that accepts widespread, preventable death and suffering. I don't actually believe most Republican voters accept that either, but the GOP apparatus does not because party officials do not comprehend the gun-created, blood-splattered abattoirs in community after community, but because they need the votes of everyone who believes that any constitutionally reasonable laws to reduce gun-related deaths and injuries are a coordinated conspiracy between Democrats, RINOs, communists, socialists, globalists (aka a global Jewish cabal), Joe Biden, Barack Obama, Nancy Pelosi and the Marxists. (I ask you: What did the Marx Brothers ever do to incur the ire of the Republican Party?)

Anyone who believes that kind of outrageous hysteria has a right to do so. I question, however, whether they should be legally permitted to own a gun. Such an individual likely also adheres to a mythology that the Second Amendment was crafted as a means to foment revolt against a tyrannical government. For all the perversion and lack of understanding of the amendment (on both left and right), historically speaking it was a compromise engineered by James Madison. Its most important goal was probably to prevent the federal government from starting a professional army. This was especially relevant to Southern states, where the population of enslaved people was disproportionately higher than in other states. Militias controlled security on the state level, especially because of anxiety over slave revolts. There was a fear among some of the founders that the Haitian revolution the first known successful slave uprising in the Americas would inspire similar events in the U.S. The Second Amendment at least partly assuaged these worries. (And in fact Black people were overwhelmingly prohibited from keeping and bearing arms.)

Nothing in the amendment legally permits insurrections against the government and just to err on the side of caution, the 14th Amendment addresses the issue of rebellion directly.

Our nation has a long and storied history of regulating firearms and other weapons, including a national registry of firearms (finally eliminated by Ronald Reagan). Post-Reagan, the Newt Gingrich political right and gun lobby discovered just how lucrative the fantasy was of taking up arms against Bill Clinton (who wanted to "make America great again"), Barack Obama whom the GOP has used to raise more money than a million Reagans could have and other gun-grabbing Democrats. I once bought into this belief, and finally came to view it as the Big Lie of the gun fetishists. The NRA, which at one time, supported reasonable gun restrictions, chose literal blood money over saving lives.

Was a nation awash in guns what the framers of the Constitution intended? I am loath to speak for them, but if those who constructed our Constitution and Bill of Rights were alive today, I doubt they'd ratify the Second Amendment. If they did, they would surely seek to modernize it.

If they chose not to strengthen our current federal gun laws, then we would know they were not the sagacious, prescient, august and erudite intellects we've been taught to believe in. And if our constitutional rights are God-given, then the Lord did some sloppy work, considering that chattel slavery and the oppression of women were overlooked. To quote the late George Carlin, that doesn't sound like divine planning to me.

It would take some time to realize the efficacy of these proposals; and, by no means is this an exhaustive list. But I guarantee they will save lives (including those by suicide, which account for more than half of all firearm-related deaths), reduce injuries and restore some of the freedom from fears that a trip to the bank, the mall, a movie theater a supermarket, an outdoor festival or our workplaces and schools will be the last trip we ever take:

The work of perfecting our Union has always been accompanied by struggle. We are now a nation held hostage by trauma entrepreneurs who wield and brandish firearms as weapons of holy war. Believe it or not, the vast majority of my fellow firearm owners will broadly agree that these reforms are necessary. I speak to them now: Like all of us, you have the right to remain silent; but now it is time to consider your duty to lead the change you wish to see.

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I carry a firearm daily. Second Amendment rights are not absolute. - Daily Kos

The John E. Sullivan Lecture series presents "To Trust the People with Arms: The Supreme Court and the Second Amendment," featuring Robert J. Cottrol, Professor of Law at the George Washington University Law School.

WHEN: Thursday, October 12, 2023 - 4:30 PM

WHERE: Ohio State House Atrium 1 Capitol Square, Columbus, OH 43215 (also remotely via Zoom)

REGISTRATION: FREE but registration required. CLICK HERE TO REGISTER (select "A friend of the Law School")

CLE: This course is approved by the Supreme Court of Ohio Commission on Continuing Legal Education for 2.00 total CLE hours.

In 2007, for the first time in nearly seventy years, the Supreme Court decided to hear a case involving the Second Amendment. The resulting decision in District of Columbia v. Heller (2008) was the first time the Court declared a firearms restriction to be unconstitutional on the basis of the Second Amendment.

It was followed two years later by a similar decision in McDonald v. City of Chicago, and in 2022, the Court further expanded its support for Second Amendment rights in New York State Rifle and Pistol Association v. Bruena decision whose far-reaching implications are still being unraveled.

Prof. Cottrol's lecture and book of the same name, To Trust the People with Arms, explores the remarkable and complex legal history of how the right to bear arms was widely accepted during the nations founding, was near extinction in the late twentieth century, and is now experiencing a rebirth in the Supreme Court in the twenty-first century.

The lecture will include additional commentary from:

Jody Madeira, Richard S. Melvin Professor of Law, Co-Director, Center for Law, Society & Culture, Indiana University Maurer School of Law.

Brannon P. Denning, Starnes Professor of Law, Cumberland School of Law.

Moderated by The Honorable Sarah D. Morrison, United States District Court for the Southern District of Ohio.

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Free Lecture - To Trust the People with Arms: The Supreme Court ... - Buckeye Firearms Association

After the U.S. Supreme Court upheld the right to bear arms last year, several states responded by making it easier to obtain carry permits but harder to use them. That strategy proved to be legally perilous: Federal judges ruled that sweeping restrictions on where people could carry handguns for self-defense in New York and New Jersey were inconsistent with the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen. A recent preliminary injunction continues that trend, barring Maryland from enforcing its restrictions on firearms near public demonstrations, its ban on carrying guns in bars and restaurants that serve alcohol, and its presumptive rule against guns in other businesses open to the public.

U.S. District Judge George L. Russell's September 29 opinion in Kipke v. Moore, which addresses two lawsuits by Maryland carry permit holders and gun rights groups, confirms that politicians were mistaken in thinking they could defyBruen by expanding the list of "sensitive places" where firearms are not allowed. At the same time, it shows that judges disagree about how to apply the constitutional test established by Bruen, which asks whether a gun control law is "consistent with this Nation's historical tradition of firearm regulation."

Russell, a Barack Obama appointee to the U.S. District Court for the District of Maryland, took a notably more permissive approach than Glenn T. Suddaby, a judge on the U.S. District Court for the Northern District of New York, and Rene Marie Bumb, a judge on the U.S. District Court for the District of New Jersey, both of whom were appointed by George W. Bush. While Suddaby and Bumb concluded that prohibiting guns in public parks and entertainment venues was probably unconstitutional, for example, Russell thinks similar rules in Maryland satisfy the Bruen test. Russell reached the same conclusion regarding museums, while Bumb was not persuaded that treating them as "sensitive places" was historically justified.

Notably, Russell's opinion runs just 40 pages. By comparison, the opinion that Suddaby issued when he enjoined several of New York's location-specific bans on gun possession last November was 187 pages long, while Bumb's May 2023 explanation of her preliminary injunction in New Jersey was even longer: 235 pages. That striking difference is at least partly due to Russell's relatively cursory consideration of the historical record.

Regarding parks, Russell notes, the plaintiffs "contend that the ban covers 'thousands of acres of land' without justification, and that there are no comparable historical regulations, despite the existence of public parks at the founding." But he considers it significant that "very few public parks existed at the time the Second Amendment was ratified, and those that did exist were typically located in cities." And while the plaintiffs cite examples of urban parks where firearms were permitted during this period, he says, "the Court cannot infer that parks were historically not regulated from so few places."

That position seems to shift the burden of proof from the government to the plaintiffs, contrary to what the Supreme Court said in Bruen. When a firearm regulation restricts conduct covered by the "plain text" of the Second Amendment, the Court said, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."

According to the Supreme Court's 2010 decision in McDonald v. Chicago, the 14th Amendment, ratified in 1868, required states as well as the federal government to respect the right to keep and bear arms. Russell therefore also considers what was happening during that period. "Around the time the Fourteenth Amendment was ratified, several jurisdictions prohibited firearms in public parks," he writes, citing laws in Boston, Chicago, New York City, Philadelphia, and St. Louis. Although those laws were limited to urban parks, he says, "rural, more isolated state parks were not established in significant numbers until after the ratification of the Fourteenth Amendment," so "the Court will not infer a lack of regulation from the absence of laws governing rural state parks at that time."

Suddaby, by contrast, was not impressed by 19th-century ordinances covering city parks, noting that they were "not accompanied by laws from states that are sufficiently similar in nature"i.e., "laws regarding 'public parks' regardless of population density." He concluded that "the burdensomeness of this regulation" was "unreasonably disproportionate to that of its historical analogues."

Bumb noted that New Jersey "failed to come forward with any laws from the 18th century that prohibited firearms in areas that today would be considered parks." She doubted that the 19th-century regulations cited by the state were "well-established" or "representative" and concluded that they "do not establish a historical tradition of banning firearms at parks," even though "the modern equivalent of parks existed during this nation's founding."

Russell concludes that Maryland's "regulations restricting firearms in stadiums, racetracks, amusement parks, and casinos are analogous to historical statutes banning them in gathering places for entertainment." He relies on the analysis in a July 2023 opinion by one of his colleagues, U.S. District Judge Theodore Chuang, in a separate case.

Regarding a "restriction on carrying firearms in recreational facilities and multipurpose exhibition facilities," Chuang wrote, "the historical statutes applicable to parks are fairly deemed to be well-established and representative historical analogues because such facilities, like parks, are locations at which large numbers of people gather to engage in recreation." Chuang, an Obama appointee, also cited a smattering of city, territorial, and state restrictions from the 19th century that prohibited firearms in locations such as public ballrooms, fairs, race courses, and places where people "assembled for amusement."

Bumb had a different take. While "this Nation has a long history of gambling establishments," she wrote, New Jersey "has presented no firearm law from states that allowed gambling that restricted firearms at gambling establishments." Instead it "offers laws it claims supports banning firearms at 'crowded social assemblies and [for] individuals with impaired judgment,'" which she deemed "insufficient" with respect to gaming facilities and other entertainment venues. Suddaby likewise thought New York had failed to show that historical tradition supported its bans on guns in theaters, conference centers, and banquet halls. He said the evidence cited by the state did not demonstrate that "the modern need for this regulation is comparable to the need for its purported historical analogues."

Russell's treatment of Maryland's ban on guns in museums is similarly lenient. "Bruen affirmed that schools are sensitive places, and museums are like schools because they serve an educational purpose and are often geared towards children," he writes. "Further, because Maryland's restrictions on firearms in museums can be justified by the protection of children as a vulnerable population, regulations banning firearms in museums are similar to those in schools."

Again, Bumb applied a stricter version of theBruen test. "The State's attempt to equate libraries and museums to sensitive places such as schools and government buildings stretches the sensitive places doctrine too far," she wrote. "The mere presence of children is not, by itself, enough to make a certain location like a school. Likewise, the State cannot stretch every government building into a sensitive place without considering the building's function and historical laws banning firearms at those locations." While Russell gives considerable weight to several 19th-century laws that prohibited guns in "locations where people gather for 'educational, literary, or scientific purposes,'" Bumb concluded that those laws were "not representative of the entire nation."

Despite these differences, Russell agrees with Bumb and Suddaby that a ban on guns in businesses with liquor licenses is not supported by historical tradition. "Bars and restaurants are not analogous to any established sensitive place," he writes. "While it is true that such businesses can attract crowds and there are risks associated with alcohol consumption, the Court is unconvinced that intoxicated people qualify as a vulnerable population, like children or hospitalized individuals. Additionally, while some crowded spaces are considered sensitive places, Bruen rejected the argument that Manhattan was sensitive 'simply because it is crowded and protected generally by the New York City Police Department.'" Turning to the historical precedents that Maryland cited, Russell concludes that laws aimed specifically at intoxicated individuals were notably narrower than a ban that covers anyone who visits a bar or restaurant, whether or not he is drinking.

Russell also agrees with Suddaby and Bumb that a default rule against guns on private property fails the Bruen test. As applied to businesses, Maryland's law allows customers to carry guns only if the owner posts a sign indicating that it's OK or otherwise gives "express permission." In support of that provision, the state cited both anti-poaching laws and postCivil War restrictions aimed specifically at African Americans, neither of which Russell deems apposite.

Finally, Russell enjoined Maryland's ban on carrying a firearm within 1,000 feet of a public demonstration. "Before the ratification of the Second Amendment," he notes, quoting Bumb's opinion, "'six out of the thirteen original colonies required their citizens to go armed when attendingpublic assemblies.'" And although Maryland cites "several nineteenth-century statutes that prohibited firearms at public assemblies," he says, Bruen "makes it clear that 'late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.'" He therefore concludes that the plaintiffs have "demonstrated a clear likelihood of success" in their challenge to the rule regarding public demonstrations.

Russell did not reach that conclusion happily. "The Court notes that it is obligated to question the constitutionality of Maryland's restriction on carrying at public demonstrations because of Bruen's narrow historical framework," he writes. "If the Court were permitted to apply intermediate or even strict scrutiny to public demonstration restriction, the law would almost certainly pass constitutional muster."

TheBruen test clearly raises questions that invite judicial disagreement. Judges must decide, for example, how much weight to give laws from different historical periods and when the analogs cited by the government are numerous, similar, and representative enough to establish a relevant historical tradition. In practice, judges' answers may depend partly on their preexisting attitudes toward gun control, although such considerations are not supposed to figure in their historical and legal analysis. But this ruling shows that the Bruen test, by foreclosing the sort of "interest-balancing" analysis that courts commonly used to uphold gun control laws prior to that decision, has real teeth even when it is applied by judges who resent its strictures.

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Federal Judge Enjoins Several Maryland Restrictions on Carrying ... - Reason