Good article, very positive.
To go alnog with this article , here is a note sent to me from my Montana Shooting Sports President , June 24. I thought he explained some of the deatils mentioned in this latest article well.
The so called "two step" appraoch is sketchy and used as an excuse for control. The info my MT Rep sent, goes hand in hand with this newest info .
Thank you, Sir Ken, for the share.
Dear MSSA Friends,
Several of you have contacted me to ask that I write about what impact
yesterday's US Supreme Court decision will have on us in Montana.
Okay, here goes.
This case is properly known as the New York Pistol Rifle Association
v. Bruen case. For simplicity, I'll just call it the NY case. In
this case, the Supreme Court of the United States (commonly referred
to as "SCOTUS") was asked to decide if the Second Amendment to the
U.S. Constitution prevents governmental entities, the state of New
York in this case, from effectively banning the carry of firearms
outside a person's home.
This is a follow-on to the Heller case which held that the Second
Amendment does not create a right but secures a pre-existing and
fundamental right from governmental interference, and prevents
governmental entities from effectively prohibiting people from keeping
guns in their homes. The McDonald case "incorporated" the Second
Amendment when it held that the Second Amendment was not only a
restraint on the federal government, but also on state and local
governments because of the Fourteenth Amendment.
So, Heller was basically about "keep" arms, and the NY case was
basically about "bear" arms.
Back to the question of what impact the SCOTUS decision in the NY case
will have on us in Montana. The answer is, not much impact
immediately and directly, but likely more down the historical road.
SCOTUS notes that 43 states already allow some form of carry outside
the home with some form of permitted or permitless carry. Montana
just upgraded from permitted carry to permitless carry for concealed
firearms because of MSSA's HB 102 in the 2021 session of the Montana
Legislature. Montana always allowed unconcealed carry outside the
home. The NY case decision will primarily affect the seven states
that have discretionary "may issue" and restrictive permit systems,
places such as New York and California.
So, on that issue, this decision will have no effect on us here in
Montana. However, and this is a very big HOWEVER, this decision went
beyond this first simple question and contained holding that WILL
affect us here in Montana, in a positive way, and over the long term.
This part of the NY decision is about SCOTUS's instruction to lower
courts about how they are to evaluate and decide future Second
Amendment cases. Up until now, nearly all courts, especially federal
courts, and most especially the Ninth Circuit Court of Appeals ("the
Ninth"), which decides cases from Montana and a bunch of other western
states, have used a decision making approach which SCOTUS just
torpedoed. This is the important part of the NY decision. Let me
explain the nitty gritty of this.
Up until this NY decision, most courts have decided Second Amendment
cases using a conjunction of two related types of method - levels of
"scrutiny" and a "two-step" approach. Both of these mechanisms are
court-created. Neither are a matter of laws passed by Congress. For
you to understand the impact of the NY case, I need to explain both
the levels of scrutiny and the two-step approach.
When some governmental action has some effect on an individual's right
and a court must decide if that action is allowed, the court will
evaluate that question with one of three levels of scrutiny. All of
these have been invented by courts. These three levels of scrutiny
are "strict scrutiny," "intermediate scrutiny," and "rational basis."
Strict scrutiny is the most difficult barrier for a governmental
entity to overcome when justifying an intrusion into an individual's
right and rational basis is the least difficult barrier.
The courts have held that the strict scrutiny standard must be applied
to justify a serious intrusion into a "fundamental" right. That
method of analysis requires that government shows a compelling
interest in the restriction, and that the restriction used is the
least restrictive means of accomplishing the purpose. Entire books
have been written about this, but an example may help.
A classic example is government prohibition on publication of troop
movements by the press during wartime. Does this impact freedom of
the press, which is a fundamental right? Sure. Is it allowed? Yes,
the courts have held, because government has a compelling interest in
protecting this secret information during wartime and because it is a
minimal (least restrictive means) imposition on the press.
A poor example of restriction of freedom of speech that is often used
is "you can't yell 'fire' in a crowded theater." That's not
technically true. But government entities may not enforce laws to
prohibit people from shouting fire in a crowded theater if there is no
fire and people are injured in a resulting stampede. However,
government must rely on punishing people afterwards for violation of
such a law and this abuse of the right of free speech. Such a law
would meet the test of strict scrutiny.
What government may not do is require that duct tape be placed over
the mouth of every person entering a theater on the assumption that
somebody would surely abuse free speech and yell "fire" if not
restrained in advance. This is called "prior restraint." Government
is not allowed to engage in such prior restraint of a fundamental
right except with a strict scrutiny justification.
Rational basis, the easiest hurdle for government to justify when
restricting a right only requires that government assert some good
reason for its restriction. An example might be a speed limit on a
public highway, which may impinge on an alleged (but unclear) right to
travel. This is only a modest infringement. It doesn't prevent
someone from using the public ways, from crossing state lines, from
getting from here to there, from changing direction or destinations,
etc. To justify this relatively mild infringement and have that
justification meet a court's threshold for rational basis review, a
government entity would only need to argue that it has a
responsibility to keep people safe on the public ways and that a speed
limit does that.
If a court determines that an intrusion into a right must only have a
rational basis to be sustained, then any such intrusion will be upheld
by the court.
Intermediate scrutiny, the middle level of justification for an
intrusion, is a fuzzy never-never land in between strict scrutiny and
rational basis. Nobody knows what it means, including the courts.
Since all of these are court-created concepts, a court can determine
that intermediate scrutiny means whatever the court wants it to mean -
anything between strict scrutiny and rational basis.
This has been a serious problem. The usual judicial treatment of
Second Amendment infringements have been subjected only to an
intermediate scrutiny level of analysis, and that fuzzy standard has
become little more than, or no more than, a rational basis. Thus,
with a Second Amendment infringement, the court holds it subject to an
intermediate scrutiny standard of little more than rational basis, the
enforcing government entity says, "Hey, we're just trying to keep
people safe," and the court allows the infringement to stand.
Then, there's the two step approach the courts have invented for
considering Second Amendment infringements. In step one, the court is
supposed to look at whether or not the infringement intrudes seriously
on a fundamental right. If the answer is yes, then the court will
move on to asking if the infringement meets whatever level of scrutiny
the court chooses to apply, almost always intermediate scrutiny with
little more restraint than rational basis.
Using this two-step approach, for example, the Ninth Circuit approved
California's ban on "assault weapons" and standard-capacity magazines
that hold more than ten rounds of ammunition ("bullets" to the dunce
media). The Ninth applied intermediate scrutiny and said that those
restrictions don't infringe on the Second amendment enough to run
afoul of that constitutional right.
Here is where the NY SCOTUS decision becomes important! The decision
says that two steps are one step too far and that levels of scrutiny
no longer apply or are allowed. This decision says that if a
governmental action intrudes on the Second Amendment, it is not
allowed, period, no matter the government's level of justification and
no matter how minimal the intrusion may be. This is basically
decision author Justice Thomas asking, "What part of 'shall not be
infringed' don't you understand?"
This is huge. This drives a wooden stake through the heart of the
pretext by which lower courts have routinely been allowing erosion of
the right to keep and bear arms, a path that without this correction
would eventually lead to the effective elimination of the Second
Amendment without amending the Constitution.
This decision also reaffirmed some other important points from Heller
and McDonald - that the Second Amendment does not create but does
enshrine and protect a pre-existing fundamental right, that Second
Amendment rights are not second class rights and must be protected by
the judiciary in the same way and to the same extent as other rights,
and more. This is all solid stuff, good to have asserted again and
more firmly, but not new since the Heller decision.
So, bottom line, this NY decision does not affect us in Montana
immediately and directly. But when Second Amendment cases are in
federal court in Montana, or go to the Ninth circuit, there will be no
more two-step process applied, and no more watered-down intermediate
scrutiny applied by anti-gun judges as a judicial scheme to uphold
infringements on the Second Amendment. It only remains to be seen how
effectively SCOTUS can impose this new doctrine on the lower federal
During WWII, Joe Stalin of Russia was allegedly told that the Pope had
said something critical of Russia's position in the conflict, to which
Stalin is said to have replied, "The Pope? How many divisions has
he?" In the struggle for SCOTUS to control the lower courts, some of
those lower courts might ask, "How many divisions has SCOTUS?"
We'll see. But we did get a great and appropriate decision from
SCOTUS in the NY case. Montana will obtain some long term benefit
from that, but nothing immediate, unless the Montana Supreme Court
chooses to be guided by this decision as it considers the campus carry
case now before it.
Gary Marbut, President
Montana Shooting Sports Associationhttp://www.mtssa.org