Upcoming SCOTUS Cases Give Anti-Gun Libs Another Excuse to Complain About Bruen

With the Supreme Court set to hear oral arguments in Wolford v. Lopez next week, the usual suspects are already complaining about the likely outcome; a majority striking down Hawaii’s “vampire rule” barring concealed carry by default on all private property. 

But that’s not where the complaint stops. No, anti-gun ideologues like Vox’s Ian Milhauser are also using Wolford as an excuse to bitch about and belittle the Bruen decision that held the right to keep and bear arms actually protects the right to carry a gun. 

Milhauser complains that the Supreme Court’s test for determining whether a gun control law is constitutional that was laid out in Bruen is completely unworkable, citing a number of liberal judges who, unsuprisingly, don’t like having to treat the Second Amendment as a first-class right. 

Briefly, Bruen held that for nearly any gun law to survive a constitutional challenge, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” To meet this burden, government lawyers must show that the modern-day gun law they are defending is sufficiently similar to “analogous regulations” that existed when the Constitution was framed.

And just how “analogous” must these long-forgotten laws be? As the dozen judges quoted by Justice Jackson show, no one really knows. In 2020, the federal government alone charged more than 14,000 defendants with firearm-related crimes. Thanks to Bruen, every single one of those cases can descend into a Mad Hatter–like inquiry into how a raven resembles a writing desk.

Which brings us to Wolford v. Lopez, the first of two Second Amendment cases that the Court plans to hear in its current term. Wolford, which the justices will hear on January 20, is poised to be the Court’s second-ever decision explaining what the hell Bruen means.

It is true that the Court has left unanswered several important questions, like what time period is most important when looking at laws regulating gun ownership. Is it 1791, when the Second Amendment was ratified, or 1868, when the Fourteenth Amendment was ratified and applied the Bill of Rights’ protections against intrusion by state and local governments as well as the federal goverment? How close does an historic law have to be to a modern regulation before it’s considered an appropriate analogue? And how many historic regulations suffice to demonstrate a national tradition of a particular gun regulation? 

Unless Milhauser is a complete ignoramus, though, he should understand that the Court has never used a single case (or even two) to firmly answer any and all questions about the scope of an individual right and the regulations surrounding it. SCOTUS has been fleshing out its doctrine on First Amendment issues for over a century, so it shouldn’t come as a shock that the justices haven’t answered every possible question about the Second Amendment in the 18 years since Heller was decided. 

What Milhauser really wants, though, isn’t clarification from the High Court. He wants them to scrap the “history, text, and tradition” test altogether.

A humbler Court would recognize that Bruen is a failure and overrule that decision — prior to Bruen, every federal appeals court used a two-step framework (which I explain in more detail here) to analyze Second Amendment cases. The Court could simply restore this framework, which worked perfectly well and did not create the same confusion among judges.

But that outcome is unlikely. Historical analysis is currently fashionable among Republican judges, many of whom identify with originalism — an approach to constitutional cases which fixates on how words were understood more than 200 years ago. In Bruen, the Republican justices attempted to build a framework for interpreting an entire constitutional amendment that is grounded in originalism. Overruling Bruen means admitting that this originalist project failed.

Still, the Wolford case should give pro-gun Republicans pause for an unexpected reason: The biggest advantage the lawyers defending a Hawaii gun law have on their side is the Court’s cockamamie reasoning in Bruen.

The tiered-scrutiny standard Milhauser prefers allowed for courts to uphold almost every gun control imaginable. Most courts viewed gun control laws through the lens of “intermediate scrutiny”, which allowed for challenged laws to be upheld so long as the government contended that they were substantially related to the government’s interest in promoting public safety. 

Milhauser dubiously claims that under that standard, Hawaii’s law wouldn’t pass constitutional muster. Even more dubiously, he argues that under the Bruen test Hawaii’s law should be upheld. 

In their brief to the justices, Hawaii’s lawyers identify various colonial and early American state laws that closely resemble the Hawaii statute forbidding gun owners to bring their weapons onto private land without the landowner’s permission.

This list includes a 1771 New Jersey law barring someone from bringing “any gun on any Lands not his own, and for which the owner pays taxes, or is in his lawful possession, unless he has license or permission in writing from the owner.” It also includes a similar 1721 Pennsylvania law preventing someone from hunting or bringing a gun onto another person’s land without “Lisence [sic] or Permission from the Owner of any such Lands or Plantation,” and a 1763 New York law making it unlawful to carry a gun on “inclosed Land” without “License in Writing first had and obtained for that Purpose from such Owner, Proprietor, or Possessor.”

It appears, in other words, that Americans around the time of the nation’s founding and the ratification of the Second Amendment were quite comfortable with laws banning gun possession on private land without the land owner’s permission. 

No, what those laws show is that Americans at the time of the Founding were comfortable with regulating the carriage of firearms on some private property; namely farmland, and for the purpose of preventing poaching. None of the laws the defendants cited banned the carrying of firearms on all private property. Indeed, not one of them even mentions banning gun possession on the type of private property that would be found in urban settings. 

Do these laws resemble Hawaii’s prohibition, which makes lawful concealed carry impossible in more than 90% of the state, including every single business open to the public? I don’t think so, and I doubt a majority of the Court does either. 

The Wolford case will give SCOTUS an opportunity to flesh out its guidance on Second Amendment issues, but it won’t address or answer every unresolved question dealing with laws regulating our right to keep and bear arms. That’s not evidence of Bruen‘s unworkability. Like it nor not, i’s just how the Court operates.  

Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights, even as they start to see that maybe we had a point.

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