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Opinion | The Most Interesting Element of the Hunter Biden Indictment


The case kicked off years of further litigation, and within the absence of clear steering from the Supreme Court docket, decrease courts established their very own assessments for firearms rules, largely making use of a type of “intermediate” scrutiny that left intact a variety of gun management measures, together with bans on so-called assault weapons and large-capacity magazines. It left untouched the usual prohibitions in opposition to weapons possession, together with by illegal drug customers.

Then, in 2022, the Supreme Court docket dropped a nuclear bomb on state gun rules. In New York State Rifle & Pistol Affiliation, Inc. v. Bruen, the courtroom did two issues. First, it established that the Second Modification didn’t simply set up a proper to “hold” a gun within the dwelling for self-defense, it additionally established a proper to “bear” a gun outdoors the house. The appropriate to bear arms outdoors the house wasn’t limitless, nevertheless, which brings us to Bruen’s second, and most essential, holding. In his majority opinion, Justice Clarence Thomas established a brand new constitutional check for gun rules. Somewhat than making use of typical authorized assessments for constitutional rights, reminiscent of subjecting gun rules to intermediate and even strict scrutiny, these rules now should be evaluated utilizing the “textual content and historical past” of the Second Modification.

Put in plain English, that signifies that trendy gun management measures could be sustained provided that the federal government can level to historic analogues, with an emphasis on these current on the time the Second Modification was adopted or when the 14th Modification (which made the Second Modification relevant to the states) was ratified.

The end result, fairly merely, has been authorized chaos. The historical past of gun regulation shouldn’t be so neat and clear as to yield simple historic parallels to the questions at challenge at present; American authorized doctrine has developed significantly because the colonial and Reconstruction eras. In consequence, except the federal government can draw a vivid line between historical past and the current day, its gun management measures are in mortal authorized peril.

The federal courtroom rulings after Bruen have been dramatic. In United States v. Rahimi, the Fifth Circuit reversed the federal conviction of a person who possessed a weapon whereas topic to a home violence restraining order. In April, a federal district choose struck down the gun possession expenses of a marijuana person. In June, the Court docket of Appeals for the Third Circuit, sitting en banc, held that federal legislation violated the Second Modification rights of a nonviolent felony to buy a firearm.

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