Today, the U.S. Supreme Court in New York State Rifle and Pistol Association v. Bruen, affirmed two of the major arguments that I’ve long made in all of my Second Amendment litigation. First, that the Second Amendment was merely a codification of a pre-existing, natural right. See, Decision at 11, 16, 25, 42. Second, that the Court has never endorsed – and in fact rejected in Heller and McDonald – the use of levels of scrutiny (or interest balancing). See, Decision at 8, 17. In this vein, as many of our viewer are aware, I previously wrote in relation to a recent Commonwealth Court decision regarding outdoor gun ranges that while I thought then-Judge (now Justice) Brobson came to the correct conclusion, I challenged his use of a two-step analysis.
In relation to how this decision will affect the laws in Pennsylvania, I anticipate it will result in several laws being struck down.
First, specifically in relation to the issuance of a license to carry, the Court does suggest that since PA is a “shall issue” state, it would likely survive a constitutional challenge. See, Decision at 30, fn. 9. However, the Court cautioned that if extensive delays occur in the issuance of licenses or exorbitant fees are required, such would likely be violative of the 14th Amendment, through which the Second Amendment is applied to the states. As some may remember, during COVID-19, I was one of the attorneys that represented Firearms Policy Coalition in challenging Philadelphia’s failure to timely review and issue licenses. In that case, an amicable settlement was obtained, where Philadelphia began timely issuing licenses. In the event the delays would again become extensive, I believe the courts would find such conduct to be unconstitutional.
Moreover, I believe there is currently a question as to whether PA’s licensing statute is constitutional to the extent it permits the issuing authority up to 45 days to issue the license. Since the Bruen Court re-affirms the holdings in Heller and McDonald that Second Amendment encompasses a right to keep and bear arms in public for self-defense and the Second Amendment is more necessary outside of the home than inside (due to threats that are less likely to exist in one’s home), I suspect that this will be challenged in the near future, as forcing a law-abiding individual to wait up to 45 days to be able to defend him/herself in public clearly seems excessive and violative of the Second Amendment.
Further, we currently have two cases pending in relation to PA’s extremely draconian restrictions on the transporting of arms in the absence of a license to carry. See, 18 Pa.C.S. 6106. By draconian transportation restrictions, I am referring to the restrictions, in the absence of a license to carry, on a person transporting a firearm to anywhere other than their home, their business, their FFL/gun dealer, their range, and their hunting camp. Moreover, even if going to one of the permitted locations, they must go directly to and from that location. If, for example, after going to the range, they decide to stop for a bite to eat, they’re in violation of the law; a conviction for which will result in them permanently being prohibited from purchasing, possessing, and utilizing firearms and ammunition under federal law, because it is a misdemeanor of the first degree. See, 18 U.S.C. 922(g)(1). The first case, which is currently before the Third Circuit and was stayed pending the Court’s decision in Bruen, challenges the licensing statute because one must be 21 years of age to obtain a license to carry and our plaintiffs are all under 21 years of age; and thus, ineligible for the license. The second one, which is currently stayed in the Middle District of PA, challenges the licensing statute on its preclusion of any one who has committed a crime punishable by more than one year in jail from obtaining a license. In this case, all three of our plaintiffs can purchase firearms but are precluded from obtaining a license to carry firearms, because of convictions that could have been (but weren’t) punished by more than a year. Therefore, like our plaintiffs in the 18-21 year old case, they are being subjected to the draconian transportation laws, which, per the Court’s decision, would be violative of the 14th Amendment.
I also suspect that the ban on carrying firearms in the City of Philadelphia, in the absence of a license to carry (see, 18 Pa.C.S. 6108), will be struck down as unconstitutional, especially in light of the Court’s statement that “there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” This is no different than Philadelphia being treated differently and we are currently challenging Section 6108 in the two prior cases I mentioned.
Beyond those cases, we currently have pending a case challenging the Pennsylvania State Police’s failure to timely provide background check determinations, which the Bruen decision seemingly implicates is unconstitutional.
Beyond these issues, the Bruen Court also calls into question perpetual, prohibited person categories, such as those found in 18 Pa.C.S. 6105 and 18 U.S.C. 922(g). Specifically, in reviewing the Second Amendment as understood at the time of ratification, the Court declares that while there were laws that prohibited the bearing of arms in a way that spreads “fear” or “terror” among the people and that surety could be required of an individual after a showing that “the individual was reasonable accused of intending to injure another or breach the peace [a]nd even then, proving special need [by the individual reasonably accused] simply avoided a fee rather than a ban.” Stated slightly differently, “everyone started out with robust carrying right and only those reasonable accused were required to show a special need in order to avoid posting a bond.” Thus, this would suggest that while the state or federal government may be able to require some form of bond – which cannot be exorbitant – it cannot simply ban someone from possessing, in all instances, a firearm without violating the Second and Fourteenth Amendments.
The next few months will surely be interesting, especially when considering that PA’s current Attorney General, Josh Shapiro, is running for Governor. Will he strike down these clearly unconstitutional laws? Or, will he continue to violate his oath to uphold and defend the Constitution? Time will tell
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