In the wake of the Heller decision, it was easy to think that things had changed. I suppose that, on some level, they had, but they hadn’t changed quite enough. Plenty of federal court judges were deciding against the Second Amendment in some horrifically bad rulings, all of which basically hinged on the Second Amendment being meaningless, at least in their minds.
A lot of bad laws were permitted to stand because of it.
Now, a federal judge has ruled New Jersey’s assault weapon ban as unconstitutional, even if he didn’t really want to.
Reason’s Jacob Sullum argues that this is the new norm; that judges who might favor gun control are no longer able to rule in favor of it. They’re forced to defend the Second Amendment.
This week, a federal judge ruled that a major provision of New Jersey’s “assault weapon” ban is unconstitutional, but he was not happy about saying so. The decision illustrates how the Supreme Court’s Second Amendment precedents have constrained the discretion of judges who are personally inclined to support gun control.
New Jersey’s Assault Firearms Law—which the state Legislature approved in 1990, responding to a mass shooting at a Stockton, California, elementary school the previous year—bans a list of specific rifle models, along with “any firearm manufactured under any designation which is substantially identical to any of the firearms listed above.” According to guidelines that New Jersey Attorney General Peter Verniero issued in 1996, the latter description encompasses semi-automatic rifles that accept detachable magazines and have at least two of five features: a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor or threaded barrel designed to accommodate one, or a grenade launcher. Illegal possession of “assault firearms” is a second-degree crime punishable by five to 10 years in prison and a maximum fine of $150,000.
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Before explaining his reasoning in reaching that conclusion, Sheridan expresses his dismay at the Supreme Court precedents he is required to follow. “It is hard to accept the Supreme Court’s pronouncements that certain firearms policy choices are ‘off the table’ when frequently, radical individuals possess and use these same firearms for evil purposes,” he says. “Even so, the Court’s decision today is dictated by one of the most elementary legal principles within our legal system: stare decisis. That is, where the Supreme Court has set forth the law of our Nation, as a lower court, I am bound to follow it. This principle—combined with the reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation—necessitates the Court’s decision.”
Is Sullam right? Are decisions like Bruen forcing judges to reach gun-friendly conclusions?
Well, sort of.
If there’s absolutely any way for a judge like Sheridan to justify gun control, they will. It might take some impressive levels of contortion–which Rahimi is likely not going to help in the least in many cases–but they’ll do it just the same.
In the case of something like an assault weapon ban, it’s virtually impossible to find a historical precedence for such a law, even under Rahimi’s more lax approach to such things. That’s because you’d have to find a ban on an entire category of weapon, which the Founding Fathers weren’t fans of. I mean, contrary to what President Joe Biden has said repeatedly, you actually could own a cannon.
If you can have field artillery, it’s going to be hard to make a logical leap to “AR-15s are too dangerous for the Founding Fathers to have approved of.”
I’ve never fired a 5.56 round that could blow up someone’s home, after all.
So it does look like a lot of judges may well find their hands forced on gun cases. They might not want to overturn gun control laws but they don’t really get to make that call. That’s for the Supreme Court to decide and they did, which means they don’t have much choice.
Considering the mess they made of things before Bruen, well, that’s probably for the best.
