After Bruen, Lower Courts Are Still Coming Up With ‘Creative’ Ways to Prolong the Inevitable

Resistance. We use this term in different senses when discussing lower court decisions. One, courts might resist the fact of the Bruen decision itself or they might read the decision in a manner that resists adopting the logical conclusions of the decision’s methodology.

Resistance can also manifest itself in a desultory or bad faith application of Bruen. For example, despite not citing a single piece of evidence or engaging in any meaningful analysis, a Texas district court refused to dismiss an indictment brought under 18 U.S.C. § 922(g)(3), which prohibits gun possession by a user of or one who is addicted to illegal drugs. The judge simply wrote, “[t]his Court, like those before it, finds that the government has satisfied its burden of demonstrating that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

Of a similar piece is the “analysis” of an Oklahoma district court which refused to dismiss the indictment of a defendant convicted of being a domestic violence misdemeanant in possession of a firearm. Despite admitting that the government’s arguments “do not address a history of firearm possession by domestic violence offenders” and “the paucity of evidence that American traditions reached within the home to interfere with domestic relationships, particularly the marital relationship,” the court nevertheless let the indictment stand.

The judge reasoned that the “government’s reliance on general historical tradition is sufficient to satisfy its burden to justify the firearm regulation § 922(g)(9).” And that “general historical tradition”? The disarmament of felons, whose historical pedigree, as noted above, is far from well-established.

Despite Bruen’s clear direction that it is the government’s burden to establish that the regulation falls within text-history-tradition, an Oregon district court used the elements for granting a preliminary injunction to flip the standard of review and deny an injunction against a raft of state gun regulations on the ground the plaintiffs had failed to establish a likelihood of success on the merits.

An Oregon initiative imposed new regulations that required a permit to purchase firearms and banned the purchase and use of magazines capable of accepting more than ten rounds. Plaintiffs sought a temporary restraining order and a preliminary injunction of the new regulations. The judge conceded that “[t]he Second Amendment covers . . . items ‘necessary to use’ . . . firearms [and] [l]ike bullets, magazines are often necessary to render certain firearms operable.” But she held that the plaintiffs had not shown “that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense.” Nor had they shown that “magazines capable of accepting more than ten rounds of ammunition are firearms ‘in common use today for self-defense’ and thereby covered by the plain text of the Second Amendment.”

These statements are especially puzzling because most pistols sold in the U.S. are equipped with magazines holding between ten and seventeen rounds. The judge acknowledged courts in other circuits had held otherwise, but noted those were not binding authority. The court held that because such firearms were more akin to military than civilian weapons, their regulation was in keeping with “a historical tradition of regulating private military organizations.”

The Ninth Circuit had been stubbornly resistant to the implementation of Heller. Anytime a three-judge panel struck down a regulation on Second Amendment grounds, the case would be reheard en banc and reversed. No surprise then that its judges’ reaction to Bruen would be characterized by foot-dragging, if not outright defiance.

In challenges to the California assault weapons ban and Hawaii’s “may issue” concealed carry law that had been under litigation for over a decade, the Ninth Circuit remanded both to the district courts instead of applying the Bruen standard itself. In both cases, a dissenting judge criticized the decision.

In the Hawaii case, Judge O’Scannlain—who was the subject of the en banc reversal in the pre-Bruen days –argued the actions of the court were particularly egregious because the Supreme Court had vacated and remanded its decision upholding the state law for reconsideration in light of Bruen. After explaining why Hawaii’s may issue regime was unconstitutional after Bruen, O’Scannlain concluded,

We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand.

In addition to being unjustified, remand “waste[s] judicial resources by sending the parties back to square one at the district court” and force the plaintiffs who “have waited a decade to resolve this litigation … to wait even longer.”

The dissenting judge in the assault weapons challenge likewise complained that “[w]ith a clear legal standard now in hand, we should have ordered supplemental briefing to further this case along” by ascertaining “the parties’ position on whether our threejudge panel could have resolved this case based on Bruen.” Like Judge O’Scannlain, Judge Bumatay complained that remand “may just prolong the inevitable as we will eventually have to decide this case—adding unnecessary delays and expenses for the parties.”

— Brannon P. Denning and Glenn H. Reynolds in Retconning Heller: Five Takes on the New York Rifle & Pistol Association, Inc. v. Bruen