Lawyer Challenging NY Gun Regulations Accidentally Says Quiet Part Out Loud

This is how a state should regulate guns... if they could find the political will to do it.

Gun violence in school setting.There are two kinds of lawyers in this world: the ones who understand Bruen as an unprecedented and ahistorical Supreme Court power grab rewriting the Second Amendment to create an individual right to gun ownership over and above the power of the states, and the ones who collect fees from gun dealers and manufacturers.

When Bruen struck down New York’s gun regulations, New York responded by writing all new gun regulations. It’s what state governments acting to “regulate their militia” historically do. But the folks behind Bruen aren’t interested in forging a “well regulated” system, they’re interested in a non-regulated system. So they’re back and asking the courts to nuke New York’s new gun laws again.

And they can dress it up in Founding era fan fiction and try to memory hole the extensive record of 18th century ratification statements and regulations for the purpose of arguing these cases, but a recent Courthouse News Service article features the money quote:

“The Second Amendment is the new civil right kid on the block,” Paloma Capanna, an attorney representing the firearm dealers, wrote in their application. “The Second Amendment is the modern civil rights movement. An attack on any one civil right and through such unacceptable methods must be called out, if all are to endure — no matter one’s own ‘political preferences’ or ‘whether society finds the idea itself offensive of disagreeable.’”

It is, in fact, a new civil right. Over 200 years of history run counter to the relief gun dealers seek, but it doesn’t matter because the Supreme Court majority gets to define what “history” means.

As an aside, an incredibly stupid argument raised among conservative legal academics in recent months asserts that this shouldn’t be controversial because, in a common law system, all law is technically history. Which is true to the extent judges look at precedent, but cases like Dobbs and Bruen invoke “history” as a means to wash away precedent. In a very real sense, what the judges cherry pick and cobble together under the banner of history is developed to avoid the strictures of a common law system respectful of legal history.

And while judges aren’t experts when they step outside of legal history, the legal community remains loathe to admit anyone is more qualified at anything, so here we are.

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Anyway, the point is, lawyers pursuing these cases aren’t ignorant that this is all novel.

“Petitioners assert most of the new laws should be struck due to ‘constitutional regulatory overburden,’ a novel theory that government mandates that target only dealers in firearms are unconstitutional when designed to be and are implemented in a manner incapable of compliance or when otherwise pre-empted by federal firearms law or the Second Amendment, in order to strip them of their operating licenses and place them under criminal charges,” Capanna wrote.

Federal firearms law pre-empting state law based on an amendment authored for the explicit purpose of shielding states from federal regulation in this area is truly wild. Yet, it’s just the level of spit and scotch tape argumentation that the Supreme Court eats up these days.

Which is all to say that these New York regulations are almost certainly doomed.

What would round three of NY gun regulations look like if the Supreme Court unceremoniously trashes these? Albany probably lacks the political will, but I’m still waiting on some state to make firearm possession licenses contingent upon joining the National Guard. Make exceptions for law enforcement who are already working for the state and its municipalities, but otherwise mandate that everyone with a legal gun perform the service to the state envisioned by the Second Amendment. There’s a lot of good that could be done with an extra crop of folks volunteering for the state one weekend a month and two weeks in the summer! And if someone lacks the mental stability to serve in the state forces, they don’t get to keep their gun because they aren’t able to contribute to the militia.

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The Supreme Court has mostly written “A well regulated Militia” out of the Second Amendment, despite that text forming the whole first half of the Amendment, but some state should just make the Court come right out and admit that they’ve abandoned all fidelity to the text.

Firearm dealers ask Supreme Court to defang New York’s new regulations [Courthouse News Service]

Earlier: Gun Ruling Proves Supreme Court Just Coasting On Vibes At This Point