Bruin decision reshaped gun law evaluation

Sasquatch: Hey guys, welcome back. It's July 2nd. We're going to talk about the Virginia gun ban and the Bruin decision and why one Supreme Court case changed everything. I'm Todd Edwards, and if you've listened to part one, we talked about what Virginia actually passed. If you haven't watched part one yet, pause this video, go back and watch part one, and then come back and pick up on part two. It's important. Last night we separated fact from rumor. And looked at why so many organizations rushed to court almost immediately after the governor signed the legislation. But here's the truth: none of that makes sense until you understand one Supreme Court decision. Everything that's happening in Virginia today, everything happening in Illinois, California, and New York, all trace back to one case: New York State and Rifle Pistol Association versus Bruin. Tonight we're going to slow down and understand why. Let's go back in time. To understand Bruin, we have to leave Virginia completely. We've got to go up, up, up, up, up the coast to New York. For decades, New York had one of the strictest concealed carry laws in America. Owning a handgun inside your home wasn't necessarily the issue. Carrying one outside your home was. If an ordinary citizen wanted a permit to carry a handgun for self-defense, simply saying I want to protect myself usually was not enough. Applicants generally had to convince the government they had a specialized need beyond what an ordinary citizen faced. Maybe they transported large amounts of cash. Maybe they had documented threats against them. Maybe they worked in a dangerous occupation. But if you simply said, I would like to exercise my constitutional right, the answer was often no. The state called this a proper cause requirement. Supporters believed it reduced volumes of violence by limiting who could carry firearms. Opponents believed government officials were deciding which citizens were important enough to exercise a constitutional right. Eventually that disagreement landed before the United States Supreme Court. It took years. It took a lot of years to work its way through the court system. But eventually it made it there. This was about more than carry permits. Many people think that Bruin was simply a concealed carry case. It was not. The carry permit was only the vehicle. The real question was much bigger. How should courts evaluate the Second Amendment? And that may sound like a boring legal question, and I'm trying not to make this video boring, but you know, it's anything but boring because every constitutional lawsuit starts with the standard. If you change the standard, often you change the outcome. Think about sports. A baseball umpire doesn't change the strike zone halfway through the game. A referee doesn't suddenly decide touchdowns are worth three points instead of six. The rules determine the outcome. The Supreme Court was about to change the rules. The way the courts used used to decide gun cases. Before Bruin, many lower courts used what lawyers called the two-step framework. Now don't get caught up in the legal language and don't let it intimidate you. It's pretty simple. Step one, they ask whether the Second Amendment even applies. If the answer is no, the government wins. If the answer is yes, they move on to step two. Step two asks something different. It asked whether the government's law was reasonable and balanced against its public safety interest. In other words, judges often weighed individual liberty against government objectives. Did lawmakers have studies? Could they show fewer crimes? Did experts testify the law might save lives? If so, many courts upheld the restriction. Now let's be clear, there was logic behind that approach. Courts balanced competing interest in many areas of law, but there was one problem. The Supreme Court never actually said that was the proper test for the Second Amendment. Lower courts developed this test themselves, and it never made it before the Supreme Court. Now that brings us back to two names every gun owner should know Heller and Bruin. Heller opened the door. Back in 2008, the Supreme Court decided District of Columbia versus Heller. For the first time, the court clearly held that the Second Amendment protects an individual right to possess firearms for lawful purposes like self-defense. That was a landmark decision. Me personally, I think in 1791 it was decided, but it took them till 2008 to figure it out. But Heller didn't answer every question. It recognized the right. It struck down Washington, DC's handgun ban. But it didn't tell lower courts exactly how future gun laws should be evaluated. So the lower courts created their own framework. That's the balancing test that we just talked about. And for years that became the norm. But then came Bruin. Justice Thomas asked a different question. Justice Clarence Thomas wrote the majority opinion, and instead of asking is this law reasonable? He has something completely different. He said that when the plain text of the Second Amendment covers someone's conduct, the Constitution presumably protects that conduct. And that sentence is worth repeating. The Constitution presumptively protects that conduct. Notice where that burden shifts. The citizen no longer has to prove. Why he should exercise a right. The government now has to prove why it may restrict the right. And that's enormous. And it should have been that way the whole time. Let's talk about history instead of balancing. Justice Thomas rejected the balancing approach. He wrote that the courts should not decide the Second Amendment cases by weighing public policy against constitutional rights. Instead, the government must demonstrate That its regulation is consistent with America's historical tradition of firearm regulation. Now, that's a phrase you've probably heard repeated over and over. History and tradition. Now, some people immediately misunderstand that phrase and they'll say, so unless they had an AR-15 in 1791, every modern gun law is unconstitutional. That's not what the court said at all. The court wasn't looking for identical laws. It was looking for historical analogs, comparable regislations, similar burdens, and similar purposes. The question becomes did Americans have regulations that are relatively similar to when the Constitution was adopted. There's where that 1791 comes into play. Why does 1791 matter? This is another point. This is another point of confusion. Why do judges keep talking about 1791? Because that's when the Bill of Rights was ratified. That's when the Second Amendment became part of the Constitution. The court's reasoning is straightforward. If we were trying to understand what a constitutional provision means, the best place to begin is how the people who adopted it understood it. Now, some judges also examine history around 1868 when the Fourteenth Amendment was ratified and made most of the Bill of Rights applicable against the states. That debate continues in constitutional scholarship, but everyone agrees that historical evidence, not simply modern policy arguments, now plays a central role after Bruins. The burden has changed, and the biggest practical difference is before Bruin, the government often asked the court to trust modern experts. After Bruin, the government has to do its history. That means lawyers now spend enormous amounts of time researching colonial statutes, founding area laws, early state constitutions, and English common law, nineteenth century court decisions, old legislative debates, and historical treaties, and even newspaper archives. This has become one of the largest historical research efforts we've seen in constitutional litigation. Law professors, historians, museums, archivists, and analyst. Everyone suddenly became an important witness because now history matters. Another phrase you'll hear constantly is common use. That idea comes from Heller. The court recognized protection for arms commonly possessed by law-abiding citizens for lawful purposes. Notice the court did not say. It didn't say military appearance, it didn't say cosmetic features, it didn't say black rivals. It focused on lawful ownership and common use. That's why AR-15s have become such an important legal question. Plaintiffs argue. that they're among the most commonly owned rifles in America. How many of you watching this own one? You don't have to answer. Just think about that. How many of you own more than one? How many of you own three or more? Think about that. When they argue those firearms fall squarely within the heller's protection, states respond that certain firearms may still be regulated because of their characteristics or because they're especially dangerous. That's one of the most central disagreements now moving through the courts. And California did that. They they outlawed some weapons based on what they looked like. And the ⁓ gun owner said, Hold my beer, and the gun manufacturer said, Hold my beer, and they sat down with the rule book. And made the same weapon that didn't violate any of the cosmetic rules, and we've got what they call the California compliant AR-15. It's kind of funny when you think about it. So Bruin didn't eliminate every firearm restriction, far from it. Justice Thomas specifically recognized long-standing prohibitions in what the courts call sensitive places. Think about courthouses. Legislative chambers, polling places. Those types of restrictions have deep historical roots, but the court also warned governments not to declare every public place sensitive. Otherwise, that exception would swallow the rule. And the issue is now being litigated all over this country. Bruin doesn't mean every gun law loses. That's another misconception. Some people think Brewin made every firearms law unconstitutional. It didn't. But some laws have survived, some have not. Now you may have your own opinion on that. Me personally, I I don't like any restrictive laws, such as gun laws. The Supreme Court itself later upheld the federal prohibition on firearm possession by certain individuals subject to qualifying domestic violence restraining orders after examining historical analogs. So Bruin isn't a guarantee that every challenge wins. It simply changes how the courts question it. And history comes first, policy comes second. Why Virginia suddenly matters? And why, if you're in another state like North Carolina, you should care about Virginia? Because it's going to be a national argument. It's not just going to happen in Virginia. Now let's circle back to Virginia. These lawsuits challenge Virginia's new firearms laws, aren't simply arguing the laws are bad policy. They are, but they're not just arguing that. They're arguing something much more specific. They ask, where is the historical tradition? Of banning the future sale of commonly owned semi-automatic rifles. Where is the historical tradition of banning magazines owned by millions of Americans? Let me pause for a minute. Some of you watching this, or some of you reading the transcript, or some of you listening to the podcast on the podcast platforms are going to say, I got you there, Todd. They didn't have semi-automatic rifles. in 1791. And when you say that, you would be wrong. They did have semi-automatic rifles back then. They worked a little differently than the ones we have today, but they did have them. And that's for another story. And if you don't think I'm right, do your research and put it in the comments. I want to see it. I'm going to hold on to what I know until later. But I do know that repeating arms did exist in the seventeen hundreds. A matter of fact, a famous person carried repeating arms with them on a expedition. But where's the historical traditions of banning magazines owned by millions of Americans? Where are the founding era diarrhea analogs? Virginia answers those questions one way. The challenges answer them another. And that's exactly what the courts are sorting out now. The judges are no longer simply asking whether these laws might improve public safety. They're asking whether they fit within the constitutional tradition recognized in Bruin. And that's why one Supreme Court decision from New York is now shaping lawsuits hundreds of miles away in Virginia. And that's why the history books have become some sort of important evidence in modern constitutional legislation and litigation. Next time we're going to put everything together, we're going to walk through Virginia's law one provision at a time. Explain the lawsuits, the temporary injunction that stopped effective enforcement of the state's assault firearm ban before it took effect, the competing court rulings, and whether these cases are likely headed. Now I'm going to pause again here and tell you. This is not legal advice. If you need legal advice, consult an attorney licensed to practice law in your area. If you're in Virginia and you've got a question about these laws and you're concerned about whether or not it's legal, don't take my advice. I'm just a poor dumb redneck that lives in a swamp called Tick Bite that plays with dogs that used to work for a three-letter agency of the government. But ⁓ ask your attorney, okay? I'm Todd Edwards. Thank you for joining me tonight. I'll see you tomorrow night for part three, and we'll bring in the legal framework into the real-world fight over Virginia's laws and explain why the preliminary injunction was issued, what remains in effect. And what the appellate courts and potentially the US Supreme Court may decide next. I'll see you tomorrow night.