NRA-ILA | The Second Amendment v. “Innovative” Gun Control

Gun control advocates are ceaseless innovators in the realm of limiting freedom. They continuously devise new and bizarre policies to undermine the Second Amendment rights of law-abiding Americans.

The U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen (2022) poses a serious problem for these gun control pioneers. In striking down New York’s discretionary carry permitting regime, the court emphasized the proper test by which gun control measures should be judged against the Second Amendment right to keep and bear arms.

Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. Specifically, the opinion noted,

[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

This would appear to preclude many gun control advocates’ favorite policies. It should certainly preclude gun control policies that gun control advocates and anti-gun politicians have explicitly admitted are “innovative.”

To take a somewhat Antonin Scalia-like approach to the matter, Merriam-Webster defines “innovative” as “characterized by, tending to, or introducing innovations.” “Innovations” is defined as,

1: a new idea, method, or device: novelty
2: the introduction of something new

An “innovative” gun control measure would be something that is foreign to “the Nation’s historical tradition of firearm regulation,” and thus prohibited under the Second Amendment.

Consider so-called “red flag” gun confiscation orders. These civil orders, sometimes termed “extreme risk protection orders” (ERPOs), empower the government to extinguish a person’s Second Amendment rights and confiscate their firearms without due process.

Prior to Bruen, “red flag” backers were eager to stress the “innovative” quality of this gun control measure.

In 2019, Giffords Managing Director Robin Lloyd described state “red flag” laws as “innovative policy solutions.” In fact, the anti-gun group has repeatedly stressed that this manner of gun control is “innovative.”

In 2014, while pushing California’s “red flag” law (termed “Gun Violence Restraining Orders” in the not-so-Golden State) Everytown for Gun Safety put out a press release titled, “Moms Demand Action Urges Passage of Innovative Gun Violence Prevention Bill.”

In light of Bruen, a February 2 decision in the U.S. Court of Appeals for the Fifth Circuit invalidated a federal firearms prohibition (18 USC 922(g)(8)) that is based on a mere civil order. The decision explained,

The distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history. In crafting the Bill of Rights, the Founders were plainly attuned to preservation of these protections. See U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VIII. It is therefore significant that § 922(g)(8) works to eliminate the Second Amendment right of individuals subject merely to civil process.

By this logic, “red flag” gun confiscation schemes would be found similarly unconstitutional.

To address another gun control measure, in January 2022, San Jose, Calif. enacted an ordinance requiring gun owners to maintain liability insurance in order to exercise their Second Amendment right.

Admitting the novel nature of the gun control, the City of San Jose posted two testimonials from gun control activists describing the “innovative” quality of the measure on its government website.

One testimonial quoted Everytown’s Shannon Watts as stating “Our grassroots volunteers have been proud to work hand-in-hand with the mayor, city council, and community partners to help get this innovative package of gun safety laws crafted and across the finish line.” In another, a gun control advocate explained, “This ordinance is an innovative approach to address the costs of gun violence…”

A January 24, 2022 press release from the city titled, “San Jose poised to become the first city in the nation to require gun liability insurance and investment by gun owners in violence reduction,” stressed the unconventional nature of the city’s policy. Moreover, the release included a statement from Giffords Senior Counsel and Director of Local Policy Allison Anderman, who remarked, “We applaud Mayor Liccardo and the City of San José for continuing to search for novel and innovative ways to prevent gun violence in the community and redress its harms.” The mayor of San Jose boasted about how the bizarre insurance scheme was “innovative” in a June 8, 2021 tweet.

In the case of California, gun owners should question just how much of the state’s convoluted gun control regime is outside the nation’s historical tradition. According to gun control advocates, it’s quite a bit.

The California-based organization now named Giffords began in 1993 under the name Legal Community Against Violence. The group appears to acknowledge that much of the byzantine firearm regime they have helped enact in the last three decades broke new ground. Their materials state that California “has been a trailblazer for gun safety reform for the past 30 years.” Their own organizational history states, that in California the group assisted in “drafting and passing innovative laws that served as a model for other states.”

There is evidence that some California gun controllers may be ever-so-slowly catching on to their new reality.

In October 2007, California Gov. Arnold Schwarzenegger signed legislation requiring new models of handguns sold in the state feature “microstamping” technology once the technology was available. At the time, Brady Campaign to Prevent Gun Violence President praised California for “embracing this innovative technology.”

The theory behind “microstamping” is that firearms could be equipped with a firing pin or other internal firearm part that could imprint unique microscopic identification marks onto ammunition cartridge cases when the gun is fired. For a host of reasons, explained in detail in this NRA-ILA Fact Sheet, this theory of “microstamping” does not survive real world application.

On May 17, 2013, the California Department of Justice, under then-California Attorney General Kamala Harris, certified that the technology was available and started enforcing this novel firearm prohibition. In order for a handgun to be sold in California it must be included on the state’s roster of handguns that meet certain criteria, including containing “microstamping” technology. Since the “microstamping” requirement was certified in 2013, no new models of handguns have been added to the roster.

In March, U.S. District Court for the Central District of California Judge Cormac Carney, citing the Bruen decision, issued a preliminary injunction against California’s Unsafe Handgun Act (the state’s handgun roster scheme) in the case Boland v. Bonta. Judge Carney explained,

the government has failed to proffer any historical regulation analogous to the UHA’s… requirements, Plaintiffs have shown that they are likely to succeed on the merits of their claim that those requirements are unconstitutional.

On March 27, California Attorney General Rob Bonta defended California’s handgun roster regime by filing a notice of appeal in the case and sought to stay the preliminary injunction pending the appeal. However, while defending certain portions of the law, a press release from Bonta’s office explained “The motion does not seek to immediately stop the part of the court’s decision enjoining the microstamping requirement.”

It seems that trying to defend a largely theoretical new technology as somehow in concert with “the Nation’s historical tradition of firearm regulation” may have proved too ludicrous, even for an anti-gun partisan like Bonta. This outcome certainly doesn’t bode well for those seeking to mandate so-called “smart gun” technology.

By gun control advocates’ own admission, so much of what they seek to burden law-abiding gun owners with is “innovative,” and therefore should be precluded by a proper understanding of Bruen and the Second Amendment. However, those more concerned with having an actual impact on violent crime than harassing the law-abiding should take heart. Vigorously prosecuting and punishing those who use firearms or other weapons to commit criminal violence, while currently out of fashion, is well within the nation’s historical tradition.