Senate hears about legal fallout from Supreme Court gun decision

More than a half-dozen courts have tossed firearm restrictions since the June decision that expanded Second Amendment rights

Victims are remembered as gun violence survivors gather in front of the Supreme Court ahead of oral argument in New York State Rifle & Pistol Association Inc. v. Bruen in November 2021. (Leigh Vogel/Getty Images for Giffords Law Center)
Victims are remembered as gun violence survivors gather in front of the Supreme Court ahead of oral argument in New York State Rifle & Pistol Association Inc. v. Bruen in November 2021. (Leigh Vogel/Getty Images for Giffords Law Center)
Posted March 15, 2023 at 2:01pm

Last year’s Supreme Court case that expanded Second Amendment rights has wreaked havoc on the nation’s gun control laws, witnesses told members of the Senate Judiciary Committee on Wednesday.

The hearing also showed sharp partisan divides over further steps to address gun violence. Democrats at the hearing praised President Joe Biden’s latest order on background checks and called for further restrictions, while Republicans criticized “soft on crime” policies they said drive gun crimes.

Since the decision came down in June, more than a half-dozen courts have tossed gun restrictions such as requirements that firearms have serial numbers and bans on possessing firearms in mass transit. An appeals court in February struck down a federal prohibition on gun possession for people subject to domestic violence restraining orders.

Those rulings relied on the Supreme Court’s focus in New York State Rifle & Pistol Association Inc. v. Bruen, which laid out a legal test of sorts for gun regulations that looks to the history and tradition of the Second Amendment.

Eric Ruben, a law professor at Southern Methodist University, said the Bruen decision means judges can now pick and choose what historical gun laws are analogous to modern restrictions — which has “enabled judicial subjectivity and unpredictability” about gun restrictions.

“In different cases dealing with the same laws, or even within the same case dealing with a law, courts have pointed in opposite directions about what the Second Amendment means,” Ruben said.

In Bruen, the justices struck down New York’s law about who can carry a concealed weapon. But several witnesses on the panel said rolling back gun restrictions could have real-world effects well beyond New York.

Ruth M. Glenn, the president of public affairs for the National Coalition Against Domestic Violence, shared the story of when her ex-husband shot her in the 1990s with a firearm he legally owned despite a domestic violence order.

“When the bullet hits you, you feel a stinging sensation, you think, ‘This can’t be happening,’ and then he shot me again in the arm. Then he drove me away and left me for dead,” Glenn said.

Glenn said the Bruen decision threatens the federal law that restricts firearms for those with domestic violence restraining orders, and she pointed to the February decision from a panel of the U.S. Court of Appeals for the 5th Circuit in United States v. Rahimi.

Several other cases are working their way through appellate courts, including a challenge to the federal prohibition on firearm possession for felons at the U.S. Court of Appeals for the 3rd Circuit and a challenge to New York’s revised gun law at the U.S. Court of Appeals for the 2nd Circuit.

Senate Judiciary Chair Richard J. Durbin, D-Ill., said the Supreme Court focused too much on history without taking into account modern firearms. He pointed out that the 83 rounds fired by a shooter in Highland Park, Ill., last year would not have been possible with the muzzle-loading muskets of the 18th century.

“I don't believe the founders of this nation would have wanted courts to simply ignore this danger when applying the Constitution they wrote. The chaos that the Bruen decision has caused was predictable,” Durbin said.

Republicans argued that an increase in violent crime has come from “progressive prosecutors,” and local policies to reduce the prison population and change bail laws.

Sen. Marsha Blackburn, R-Tenn., said Democrats focus on restrictions that will affect law-abiding citizens when many gun crimes are committed by people with prior convictions or those out on bail.

“We ought not to have people that try to restrict self-defense options for good Samaritans,” Blackburn said. “They should be spending their time trying to get violent criminals off the street.”

Sen. John Cornyn, R-Texas, pointed to changes in firearms enforcement in a rare law passed to address gun violence last year that have not been implicated by Bruen. The law created grants for state crisis intervention laws and provided several billion dollars in mental health and school security funding.

It also closed the so-called “boyfriend loophole” by extending a firearm ban for those convicted of domestic violence to include dating partners as well as spouses, and it required more thorough background checks for gun buyers under age 21.

“So it was focused on that cohort, that age cohort, that was disproportionately represented in some of the mass shootings that we've seen around the country, and it seems to be working,” Cornyn said.

The hearing came the day after Biden signed an executive order to prompt Justice Department rule-making on when gun dealers must register with the federal government and conduct background checks, intended to move the country “as close as we can to universal background checks without new legislation.”