The Bruen decision rattled anti-gunners something fierce. They were absolutely convinced they could pass any law they wanted and get the courts to uphold it, at least in many places, all because of the principle of intermediate scrutiny. Basically, that put the government’s interest above our own with regard to our right to keep and bear arms.
Many figured that Bruen would essentially mandate strict scrutiny, where the rights of the individual would supersede the government’s interest.
What we got went beyond that. If there’s not a historical analog from around the time of the nation’s founding, it doesn’t matter what the government’s interest is or anything else. You just can’t do it.
And gun control laws have fallen all across the nation.
But an article from the San Francisco Chronicle argues that attorneys there have figured something out. The headline read, “A California court just found a way around the SCOTUS standard that’s killed other gun laws.”
First, the courts aren’t supposed to find ways around Supreme Court decisions. They’re supposed to use those to interpret the constitutionality of the laws being challenged.
But did they find any such thing? Let’s take a look.
The 1st District Court of Appeal in San Francisco said the state law satisfied the Supreme Court standard by citing laws from the 17th and 18th centuries that disarmed individuals who were thought to present a danger to the public. The case involved Jucari Scott Anderson, who was convicted of assault and illegal possession of the semiautomatic weapon and ammunition he used in a 2019 shooting that wounded a man outside a bar on Durant Avenue.
Anderson, who had previous felony convictions, was sentenced to 19 years in prison. In his appeal, Anderson’s lawyer argued that California could not meet the Supreme Court’s test of showing a historical tradition of denying weapons to convicted felons.
Courts have cited that standard to overturn laws in a number of states, and it has been invoked in ongoing challenges to California’s bans on semiautomatic rifles and age limits on gun possession. But the appeals court said Thursday that the felon-in-possession laws were based on centuries of history.
Although California’s ban on guns for convicted felons dates back only to 1923, laws from 17th-century England and the American colonies addressed the same principle by disarming individuals who were considered threats to society, Presiding Justice Alison Tucher said in the 3-0 ruling.
She cited a 1662 English law allowing the government to seize arms from anyone “judged dangerous to the peace of the kingdom.” Similar laws existed in the American colonies, Tucher said, and in Massachusetts, those convicted of participating in Shays’ Rebellion against the state in 1786 were eligible for pardons only if they turned in their weapons and remained disarmed for three years.
There was an “understanding amongst the founding generation that legislatures could disarm persons unwilling or unable to follow the law,” Tucher wrote. She noted that disarmament laws were also applied to racial and religious minorities – groups who were not yet protected by civil rights statutes – but said there was an overall policy of denying firearms to those considered to be potentially dangerous to society.
So their way around the Bruen decision was to…do what the Bruen decision said?
Now, I’m not absolutely convinced that laws from the 17th Century are ultimately going to be relevant in gun cases, primarily because many of the rights preserved in the Bill of Rights were put there in response to governments infringing on those rights in previous centuries, so a strong case could be made that such laws are completely and totally irrelevant under the Bruen standard.
Going into clearly racist laws is a slightly different matter. I find it amusing that statues of Confederate generals have to be purged from memory, that any legacy of our racist past must be torn down and destroyed…unless it’s gun control. Then we should totally invoke those laws as evidence that we can keep certain people from exercising their right to keep and bear arms.
But one could argue that it’s applicable to the time and place outlined in Bruen.
Now, would an en banc panel agree? It’s California, so I’m fairly sure they would. Would the Supreme Court? After Rahimi, which was also invoked, most likely. I don’t agree, but I’d probably lose this one.
The thing is, this isn’t a way around Bruen. This is a case where applying the standards laid down in Bruen may well lead to a gun control law being upheld. Bruen didn’t just declare all gun control laws unconstitutional, which was theoretically on the table. It set a standard that needed to be met. Rahimi found that the standard didn’t need to be a perfect one-to-one analog.
Nothing has changed and this approach isn’t going to change the landscape forever. These are convicted felons. If Rahimi was fine to be disarmed despite no conviction at all, there’s no chance of a convicted felon being able to buy a gun, and that’s especially true if attorneys defending these laws find close enough analogs.
There’s no “way around” jack squat. They did exactly what Justice Clarence Thomas said they had to do.
