The Politically Incorrect Guide to the Supreme Court by John Yoo & Robert J. Delahunty

Author:John Yoo & Robert J. Delahunty
Language: eng
Format: epub
Publisher: Regnery Publishing
Published: 2023-06-27T00:00:00+00:00

Justice Kavanaugh also noted the limits of the Heller, McDonald, and Bruen holdings. He stated that Bruen did not affect the “shall issue” licensing schemes found in forty-three states: these states, he wrote, could continue to enforce their laws. (Presumably, Kavanaugh believed that “shall issue” laws had the requisite historical validation.) The “may issue” states like New York could continue to require licenses for carrying handguns for self-defense, provided that they used “objective licensing requirements” like those of the forty-three states. Kavanaugh tracked Heller (and, indeed, the majority opinion in Bruen itself) in pointing out that the Second Amendment, while not “a regulatory blank check,” was also not “a regulatory straitjacket.” There were important boundaries to the amendment’s protections, including (for example) state prohibitions on carrying handguns into “sensitive” places.15

Predictably, some of the reactions to Bruen were extremely hostile. New York State was among the first to denounce the decision and to enact broadened gun control regulation. State Attorney General Letitia James argued that the Court had not struck down the state’s licensing requirements for handguns in their entirety; that the Court had seemed to endorse many of the licensing requirements (for example, fingerprinting, background checks, and so forth) common to New York and “must issue” states; that carrying in “sensitive places” might be prohibited; that “unusual weapons” were “subject to further restrictions”; that “carrying guns with unlawful intent” might be prohibited; and that private property owners might be authorized to ban guns on their property. She also noted that New York governor Kathy Hochul had recently signed legislation, adopted at a special session of the state legislature, to strengthen gun control regulations by characterizing additional public settings as “sensitive places,” by adding new eligibility requirements for applicants seeking a concealed-carry permit, and by imposing new storage and other safety requirements.16

Meanwhile, just hours after Bruen was issued, the U.S. Senate, by a 65–33 vote, passed the Bipartisan Safer Communities Act, a significant piece of gun control legislation. The Senate bill swiftly passed the House and was signed into law. Among other things, the new federal act provided funding to states to enact and implement so-called “red flag” laws and closed the so-called “boyfriend loophole” in prior law.17

Whether these and other state and federal gun control laws will survive judicial review under Bruen’s standards is difficult to predict. In a separate concurring opinion in Caniglia v. Strom, a 2021 Fourth Amendment case involving a warrantless police seizure of handguns within a home, Justice Alito had been careful to note that the Court’s decision in that case did not affect “the so-called ‘red flag’ laws that some states are now enacting.” Alito explained that these laws “enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons.” Alito observed that Fourth Amendment challenges to such “red flag” laws were likely.18 So now are Second Amendment challenges. Unless states can establish that their red flag laws are analogous to traditional gun control legislation, those laws may well fail to satisfy Bruen.

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