A recent article published in Bloomberg Law reports that the Supreme Court’s 2022 Bruen decision is creating confusion amongst not only judges but attorneys and legal scholars as well.

The piece is titled, “Judges Confused by Supreme Court’s Historical Test for Gun Laws.“

The reporter, Lydia Wheeler, writes, “Establishing a constitutional right to carry a handgun in public in a landmark 2022 decision forced lower courts to play historian and look to Colonial-era laws to justify the lawfulness of gun restrictions, a duty that has frustrated some judges.”

What Critics Are Saying

Wheeler then goes on to quote a few judges in the article along with UCLA law professor Adam Winkler. Here are some excerpts:

“Judges are not historians,” Judge Carlton Reeves of the US District Court for the Southern District of Mississippi said in dismissing a case after finding no history or tradition to support upholding the federal ban on convicted felons having guns. “We were not trained as historians. We practiced law, not history.”

“The court adopted this bizarre test that requires gun laws today to be consistent with the gun laws of the 17 and 1800s,” Winkler said. “And given how many of our gun laws are modern 20th century inventions, designed to respond to the problems of a modern urbanized society, this test has proven to be a disaster.”

For review, Bruen did the following:

• It established a new test for evaluating the constitutionality of gun laws. Under this test, states must show that their gun laws are consistent with the “historical tradition” of firearm regulation.
• It struck down “may-issue” concealed carry permitting systems, which give authorities the discretion to deny permits based on subjective criteria.

NSSF Responds

GunsAmerica got in touch with the National Shooting Sports Foundation (NSSF) to see what they make of all this Bruen confusion.

Mark Oliva, the managing director of public affairs at NSSF, doesn’t buy into the idea that it’s all that confusing.

“Bruen is straightforward. Justice Clarence Thomas’s majority opinion threw out the lower courts’ use of interest-balancing tests, which were unconstitutional from inception. No other right was subjected to multiple steps to determine if that right belongs to individuals and not to the government to treat as a privilege that can be doled out according to the whims of bureaucrats,” he said via email.

Oliva thinks all the worrying over when rights kick in and which ones count is just a bunch of hot air.

“The navel-gazing by legal scholars and authorities seems more to be over the fact that the U.S. Supreme Court struck down their unconstitutional tests. The handwringing of when rights begin and which rights apply is nonsense,” he continued. “The Constitution is clear. Our rights are endowed by our Creator, not conferred by governments. The Founders were clear that Second Amendment rights belonging to the people didn’t apply to flintlock muskets but arms.”

Oliva points out that we all understand that the First Amendment’s got our backs in the Internet age, even though the Founders never saw that coming. So, why wouldn’t the Second Amendment cover new tech too?

“Debates to minimalize Bruen and nothing short of attempts claw away rights that belong to citizens,” Oliva concluded.

What are your thoughts?

We’ve heard from the judges, legal scholars, and the NSSF. Now, we want to hear from you. Is the Bruen decision as clear-cut as Mark Oliva suggests, or do you side with those who find it murky and confusing?

Maybe you’ve got a totally different perspective? Whatever your thoughts, we’re interested! Let us know your thoughts in the comments below.

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