OSD 175: The lumpy resistance to Bruen
What's Bruen next?
So, that turned out well.
Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.
This only affects the eight states with may-issue regimes — California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island — and it wasn’t immediately clear how easily they’d go along. For example, Governor Phil Murphy had some pointed thoughts on the subject:
New Jersey’s acting attorney general followed up along the same lines:
In that strongly-worded directive, Acting AG Platkin defiantly announced New Jersey’s intent to … meekly comply with Bruen?
Here’s an excerpt:
Attorney General Directive No. 2022-07 clarifies that while the Supreme Court decision prevents New Jersey from continuing to require a demonstration of justifiable need in order to carry a handgun, it does not eliminate the enforcement of other permitting requirements under State law.
“I want to make it perfectly clear that carrying a handgun without a permit is still illegal in New Jersey and applicants must satisfy all other statutory and regulatory requirements — including a thorough background check — before obtaining a permit to carry here,” said Acting Attorney General Platkin. “New Jersey is leading the way by taking commonsense action to protect our residents and law enforcement officers from the daily threat of gun violence — and the Supreme Court decision will not change that.”
tldr New Jersey will waive its now-illegal “justifiable need” requirement, but will continue to enforce the other provisions of its carry permit law … which just makes it into a shall-issue state. (Side note, it’s a more-onerous-than-average shall-issue state. The particularly onerous part, which will likely be litigated and eliminated in future cases, is the requirement that you provide character references from three people who have known you for at least three years.)
California’s attorney general Rob Bonta issued a similar statement to prosecutors and police in his state. The difference is that even with its “good cause” requirement struck out, California’s carry law has another provision with may-issue-shaped teeth: before approving a permit application, the issuing authority (usually the local sheriff) must certify that “the applicant is of good moral character”. That discretionary power is not likely to survive its next encounter with a federal court (more on that here from Eugene Volokh), but in the meantime, your local chief law enforcement officer in California retains some say in what Bruen means.
This all highlights three things.
1. For the holdout states, appearance matters more than reality
There’s a cynical way to view this — politicians use misleading stats, felonize firearm ergonomics, the rules are made up and the points don’t matter, etc. — but you can also think of it as an opportunity. Politicians benefit from appearances, not results. Gun rights benefit from results, not appearances. So that’s a match made in heaven. If the New Jersey AG makes a defiant statement about Bruen and then just lets the state become shall-issue anyway, that’s still a win for New Jerseyans’ gun rights.
Another example: Maryland was, until Bruen, a may-issue state. But despite tough talk from local politicians, for the past several years basically any business owner who applied for a carry permit has been able to get one. That’s a long way from shall-issue, but it’s also significantly less restrictive than the state’s reputation would have led you to believe.
On the flip side, reality can be less rosy than appearances would lead you to believe. Appearances are that anyone who goes through the New Jersey permit process will get a carry permit. Reality is that New Jersey’s gun owners are about to DDOS a system that was designed to handle about nine approvals per week. That’s going to have to scale up 300x quickly, from a handful of retired cops to … well, everybody.
2. Technical details matter, and it pays to know them
#1 also underlines the importance of technical details, another area where gun rights folks excel. Bruen came out on a Thursday, and by Friday we already saw New Jersey and California’s paths diverge because of a few specific words in their decades-old carry laws.
3. Win or lose, the next steps never change
Modulo some straggler clauses like the one in California, may-issue permitting is over. People who want a carry permit (in the 25 states that require one) can now apply, go through an objective process, and get it. The may-issue states have to comply with Bruen immediately, but over time, some of them will pass new laws on the subject. There will be more lawsuits about how complex, lengthy, or expensive the permitting process may be. And about which locations a state may, and may not, ban carry in.
What made Bruen happen was several decades of small-scale wins and hearts-and-minds work. If Bruen had gone the other way, the only viable reaction would have been to do more hearts-and-minds work, build up more wins, and try again later. The common thread there is that gun rights are only viable to the extent that people believe they’re important. So keep making more gun owners and in the long run things will keep trending up.
This week’s links
Chris Baker of Lucky Gunner continues to wisely bang the drum for carry gear that’s comfortable and doesn’t require people to dress around their gear. Most people aren’t going to dress around their gear, so we have to meet people where they’re at.
Sarah from PHLster Holsters with a detailed framework on how to find a comfy fit.
Eugene Volokh on the subject.
Old survey, but it’s interesting to see how views diverge between leadership and police on the ground. If you know of studies into how individual officers’ skeptical views towards gun laws have (or haven’t) translated into their soft-pedaling enforcement, please send them our way.
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