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Nonetheless, the Supreme Court and the lower federal courts have apparently concluded that the Second Amendment does not apply to the people in its broadest sense as written, but only to law-abiding people. Alito came perhaps the closest to explaining the difference in his concurring opinion in Bruen. While the dissent seemingly thinks that the ubiquity of guns and our countrys high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense, he explained, referring to Breyers dissent.

Alito then went on to describe how law-abiding citizens interact with and can be distinguished from criminals in more detail. No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law, he wrote, referring to the New York statute at the heart of the case. Each year, the [NYPD] confiscates thousands of guns, and it is fair to assume that the number of guns seized is a fraction of the total number held unlawfully. He went on to state, citing statistics and anecdotes alike, that ordinary citizens frequently use firearms to protect themselves from criminal attack.

Some of this is a bit obvious. A mugger carrying a gun is not law-abiding; a person defending themselves from a mugger is law-abiding. But Alitos reference to the NYPDs confiscation of guns held unlawfully is where things break down a bit. The whole point of the legal challenge in Bruen was that otherwise law-abiding New Yorkers who lacked concealed-carry permits could not go to certain places in New York City with their guns without facing arrest and seizure. According to the friend-of-the-court briefs filed in Bruen, more than a few people whose guns were seized by the NYPD in recent years intended to use them for self-defense, or at the very least did not intend to use them to commit a crime. Criminality, in other words, is more than just whatever a state decides to criminalize.

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Why Does the Second Amendment Only Apply to Law-Abiding Gun Owners? - The New Republic

(The Center Square) A constitutional challenge to Illinois gun and magazine ban is under advisement at the Illinois Supreme Court.

Illinois bans the sale and possession of more than 170 semi-automatic firearms and certain magazines. If the law is sustained, those with such firearms owned before the law was enacted must register the weapons under criminal penalty by Jan. 1. The law is being challenged in federal and state courts.

Tuesday at the Illinois Supreme Court in Springfield, justices heard oral arguments in the case Caulkins v. Pritzker. The case comes out of Macon County where state Rep. Dan Caulkins, R-Decatur, and others allege, among other things, the law violates equal protections because it does not apply to active and retired police officers and others in law enforcement and security fields.

Justice Elizabeth Rochford asked Caulkins attorney Jerry Stocks about the training exemption law enforcement officers have.

And that they continue to maintain that training while they maintain their exempt status as opposed to just everyone else, Rochford said. Is that an arbitrary

It is arbitrary, Stocks said.

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Stocks said retired military who have training arent exempt. Other justices asked whether this is a Second Amendment challenge or an equal protections challenge.

You cannot even begin to address the grounds that are in this complaint without addressing and finding what the Second Amendment says in this case, Stocks said during the hearing.

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The court took the issue under consideration and could rule in the months ahead. The states ban also faces challenges in federal court with several cases consolidated at the appeals court level and a motion for emergency injunction pending in front of U.S. Supreme Court Justice Amy Coney Barrett.

Defending the state, Attorney General Kwame Raoul said he was confident the ban is constitutional after the Illinois Supreme Court hearing, especially with continued news of recent mass shootings. Raoul was asked about similar training the public could take.

Well, you play a different role, right, Raoul said. Its not just a question of training, youre not in a law enforcement role, I dont think.

Raoul criticized the plaintiffs for not arguing the Second Amendment in their pleadings but raised it in the court.

Stocks reiterated his claim the law violates equal protections of civil liberties.

This was about the fundamental individual right under the Second Amendment that could not be diluted by Illinois version of the Second Amendment, Stocks said after the hearing.

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Illinois justices hear 2nd Amendment, equal protections arguments against states gun ban - The Center Square

From today's Wisconsin Court of Appeals summary disposition in Lafferty v. Amundson (decided by Justices Gundrum, Neubauer & Grogan):

Brian and Katie Lafferty appeal from a circuit court order rejecting the Laffertys' constitutional challenges to [a] Department of Children and Families Rule, which imposes certain firearm storage requirements for foster parents, as well as the Department's prohibition on foster parents from carrying weapons while in the presence of foster children.

The relevant prohibition requires, among other things, that guns generally be stored unloaded and locked; the prohibition on carrying ready-to-use firearms on one's person would presumably flow from that.

After briefing was completed in this case and while a decision was pending, the United States Supreme Court decided New York State Rifle & Pistol Ass'n, Inc. v. Bruen(2022), in which the Court rejected the means-end scrutiny framework the Respondents rely on in this case. Instead, Bruen said:

[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

We vacate the circuit court's order and remand for additional proceedings to allow the parties to address the Department's rule in light of Bruen and to obtain the benefit of the circuit court's decision applying the Bruen standard. On remand, the circuit court should allow the parties to engage in further discovery if necessary and permit additional briefing and/or motions addressing the framework set forth in Bruen and noted above. In doing so, the circuit court should consider the interaction of Bruen and the unconstitutional conditions doctrine. See, e.g., Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 59 (2006); Perry v. Sindermann, 408 U.S. 593, 597 (1972); Frost v. Railroad Comm'n of Cal., 271 U.S. 583, 593-94 (1926); Milewski v. Town of Dover, 2017 WI 79, 377 Wis. 2d 38, 899 N.W.2d 303; Madison Tchrs., Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337.

Additionally, upon remand, the circuit court should permit the parties to address whether the form the Laffertys were required to sign in this case as a condition of being foster parents, which specifically prohibits a foster parent from carrying a weapon in the presence of a foster child, constitutes an administrative rule that has not been promulgated through the rulemaking process.

For a similar recent decision by the federal Seventh Circuit Court of Appeals, dealing with an Illinois regulation, see this post. The "unconstitutional conditions" analysis asks whether the government may require people to agree not to exercise their constitutional rights as a condition of participating in a government-run program (such as a foster parenting program). One might view foster parenting, for instance, as being a sort of government employee, and the government does have considerable control over what employees may or may not do on the job; on the other hand, this is an unusual form of government employment where people are "on the job" in their own homes.

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Foster Parent Second Amendment Case Sent Back to Trial Court in Light of Bruen - Reason

Gun control advocates have become so dependent on emotional arguments they often seem incapable of offering rational ones. So, I was eager to read a new Bloomberg column (via The Washington Post) headlined, The Second Amendment Allows a Ban on the AR-15.

The piece doesnt get off to a promising start, as author Noah Feldman props up a familiar straw man:

If we each have the right to bear arms, is there a constitutional right to a military-style semiautomatic rifle like an AR-15? What about a rocket-propelled grenade launcher? A small tank?

Notice how he jumps from the oxymoronic military-style semiautomatic rifle not a real thing to a small tank. Anyway, the proposition is that we should not have access to military-grade armaments. (Feldman is unaware that owning a small tank is legal.) But well get back to that in a moment.

Throughout the piece, Feldman treats the Second Amendment as some kind of courtesy extend[ed] by the state, rather than an inalienable right that can only be limited in extraordinary circumstances. The best way to avoid this confusion is to plug the words First Amendment whenever you see Second Amendment and the words newspapers every time you see guns. Though perhaps these days that wont help either.

The main problem in the piece, however, is that Feldman misunderstands the Supreme Courts 1939 United States v. Miller decision, which he contends is background to the current doctrine that makes it permissible to ban a semiautomatic rifle.

Miller revolved around a small-time bank robber and alleged murderer named Jackson Jack Miller and a sidekick, who in 1938 were caught in possession of an unregistered short-barreled shotgun while making preparation for armed robbery, according to the police. The two were charged with violating the relatively new National Firearms Act.

If it were up to the two criminals, the case would have ended right there, because both pled guilty. But the judge, Hiram Ragon, a New Dealer and NFA booster, refused to accept the pleas, assigning a court-appointed lawyer to the case. Instead of fighting the charges, the two crooks went on the lam. (Within a few months, Millers bullet-ridden body was found in an Oklahoma creek.)

Still, the case worked its way up to the Supreme Court, which is probably what Ragon had intended all along. The ruling was something of a sham. Millers lawyers didnt even bother filing a brief or showing up to make any oral arguments. And because anyone could buy any gun they wanted whenever they wanted, there were no Second Amendment advocacy groups in existence to take up the cause.

The Supreme Court issued a muddled opinion affirming the constitutionality of the NFA, finding that the Second Amendment didnt guarantee an individual the right to keep and bear a sawed-off double-barreled shotgun shorter than 18 inches, which was a weapon commonly used by criminals rather than law-abiding citizens. In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, the court found, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. (The justices were wrong, by the way. The military did use 14-inch barrel shotguns at the time, though there was no lawyer there to inform them of this fact.)

Feldman tries to argue that even Justice James McReynolds, a crazy libertarian, was a reasonable voice on guns 84 years ago. But the truth is the NFA didnt ban any kind of mechanism or any class of weapon. In 1939, a person could walk into a drug store and buy a tommy gun if they pleased, after paying a tax.

Miller quite literally undercuts Feldmans set-up. An unregistered sawed-off shotgun brought across state lines was illegal because such guns werent used by the military for the common defense. If it had been, it would have been legal. Meaning, not only an AR-15, but an M16 a true military-grade weapon would be legal.

Feldman dismisses this finding in the case as a practical disadvantage. Just ignore it, then, I guess. Instead, like many others before him, he pivots to claim that the Miller decision bolsters the revisionist case for a collective theory of gun rights. The left would have you believe they support gun rights, but only if you join a militia. Sure.

The problem is the court didnt offer any broad ruling regarding the meaning of the Second Amendment. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons, Antonin Scalia wrote nearly 70 years later in D.C. v. Heller. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

To counter this claim, Feldman throws in this well-worn contention about the Heller decision:

That opinion featured the astonishing act (astonishing for an originalist, at least) of reinterpreting the original meaning of the Second Amendment. This took some jurisprudential jiu-jitsu. Scalia discounted the introductory clause that explains the purpose of amendment as ensuring a well-regulated militia. He shifted the meaning of the right to bear arms to personal self-defense.

The above paragraph is a completely concocted fantasy. Heller did not reinterpret anything. The well-regulated in the Bill of Rights refers to an orderly civilian military force, rather than a rabble of men. It always has. It does not mean regulation in its contemporary understanding of the state micromanaging your actions from the top down with a bunch of rules, which would have been alien to that generation.

And the regulated militia mentioned in the prefatory clause of the Second Amendment doesnt erase the operative clause of the amendment, which protects the individuals right to bear arms a right that virtually every notable figure from the founding era is on the record defending. There is nothing astonishing about it. Anyone whos spent five minutes reading about Madison and the Second Amendment understands why he wrote it the way he did. Many states codified the individuals right to bear arms in their own constitutions before the Bill of Rights was even written, most of them in much more explicit terms. No SCOTUS case has ever treated the Second Amendment as anything but an individual right. No Founding Father ever argued otherwise. The collective right is an invention of the 1990s.

You have a right to own an AR-15 because it is a gun in common use among ordinary citizens. There is nothing unusual about it. The most popular rifle in America isnt even close to being the deadliest weapon in the country.

The AR-15 has never been a military weapon. It was sold to civilians before it was modified. But even if we accepted the lefts contentions that ARs were some kind of military super gun a talking point that might well contribute to its popularity with homicidal nuts Miller still doesnt allow for a ban.

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AR-15 Bans Are (Still) Unconstitutional - The Federalist

The Supreme Court declined to intervene Wednesday in an important Second Amendment case challenging Illinois new restrictions on gun owners.

But no, its not time to panic.

The battle isnt over. Not even close.

Earlier this year, Illinois enacted a law prohibiting civilian sales or transfers of many types of commonly owned semiautomatic rifles, based solely on the states arbitrary determination that certain cosmetic features turn these guns into so-called assault weapons.

Illinois residents who already possess these firearms, potentially millions of people, may continue to do so under the new lawbut only if they first register their ownership with the state.

They may not remove the gun from their property, except to take it to a gunsmith or gun range. And they cant transfer the gun to any other person residing in the state. The only exception: A person may receive an otherwise banned gun as part of an inheritance.

The Illinois state government, of course, chose to exempt itself from these prohibitions. Despite calling these guns weapons of war that arent useful for self-defense, the government will continue allowing police officers to use them for, well, that very purpose: defending themselves and others against common criminal threats to civilians whom the state insists have no use for these same guns.

Illinois new law is both poor public policy and a grotesque assault on the Second Amendment rights of peaceable citizens. It unquestionably should be struck down as unconstitutional, especially in light of the Supreme Courts 2022 decision in New York State Rifle & Pistol Association v. Bruen. In that case, the high court said that for a gun law to be constitutional, the government must demonstrate that the law is consistent with [the] Nations historical tradition of firearms regulation.

In short, the United States has absolutely no historical tradition of completely banning sales of bearable small arms that are commonly possessed by peaceable citizens for lawful purposes.

Almost immediately after Illinois Gov. JB Pritzker, a Democrat, signed the bill into law, Second Amendment groups and Illinois residents filed legal challenges in state and federal court. They also requested that these courts issue an injunction that would keep Illinois from enforcing the law while their legal challenges were pending.

Unfortunately, the lower courts declined to issue an injunction, and although the 7th U.S. Circuit Court of Appeals soon will hear the case on the merits, its timeline for review is too late to stop the law from going into effect. So, Second Amendment advocates petitioned the Supreme Court to intervene and block the law from going into effect before the 7th Circuit issues its decision.

By declining to intervene Wednesday morning, the Supreme Court didnt make any decision about the constitutionality of the Illinois law. Instead, the high court merely allowed Illinois to begin enforcing the laws provisions.

Yes, its disappointing that the law will go into effect for the time being. But this is neither a significant victory for gun control advocates nor a reason for Second Amendment advocates to be alarmed.

Its common for the Supreme Court to refrain from intervening in these types of cases at such an early stage in the litigation process. It does so for prudent reasons that have nothing to do with how the court might ultimately consider the underlying constitutional question.

Emergency interventions such as the one sought here require the Supreme Court to make decisions without the benefit of a robust factual record, extensive briefing from the parties, or ability to ask questions at oral argument. They also leave the court with far less time to consider important issues and reach well-reasoned decisions.

The Supreme Court has shown particular restraint when it comes to intervening in the myriad post-Bruen legal challenges under the Second Amendment that have worked their way through the lower courts over the past year.

No one knows for sure why the justices decline emergency intervention in some cases and not in others. However, one likely reason for their restraint in recent Second Amendment cases is that theyd like to give lower courts plenty of opportunity to try their hand at faithfully implementing Bruens framework.

Bruen was, after all, a major decision that fundamentally changed the way in which lower courts must analyze Second Amendment challenges. Its possible that these lower courts ultimately will prove themselves capable of correctly applying Bruen, in which case the Supreme Court will have avoided unnecessary and premature intervention.

Even if lower courts fail to faithfully and correctly apply the Bruen framework, there is plenty of reason to believe that, in such a scenario, the Supreme Court will step in to vindicate both Bruen and the Second Amendment by striking down the Illinois law (or a similar law in a different state) as unconstitutional.

Good law sometimes takes time for courts to achieve. That wait certainly can seem like an eternity for the residents whose rights are being undermined. But despite early cries of victory from gun control advocates, this latest battle for the heart of the Second Amendment is far from over.

In fact, its hardly even begunand defenders of the Second Amendment hold the high ground.

Have an opinion about this article? To sound off, please emailletters@DailySignal.comand well consider publishing your edited remarks in our regular We Hear You feature. Remember to include the url or headline of the article plus your name and town and/or state.

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Gun Control Groups Claim Victory, but Here's Why They'll Likely Lose War - Daily Signal