When the Supreme Court decided Bruen, it struck down subjective permitting but also seemed to ok objective permitting. At least to a point.
Contributing Writer Jake Fogleman takes a look at the most recent judicial debate over where that point lands. He explains how a Hawaii pistol purchase case led two Republican-appointed judges to disagree over where the state’s law crossed the line, even if they agreed that it had.
Then, I look at the Trump Administration’s latest gun actions and why one ATF appointment could be more meaningful than anything else they’ve done so far. And Cam Edwards of Bearing Arms joins the podcast to give his view of those moves.
Plus, I was on CNN Friday to discuss the Ninth Circuit’s decision upholding California’s magazine limits and the video dissent that’s got everyone talking.
Analysis: Judges Grapple with Gun Licensing Regimes ‘Put Toward Abusive Ends’ [Member Exclusive]
By Jake Fogleman
During Bruen, the Supreme Court implied that objective firearms licensing regimes are broadly constitutional—but only up to a point. A Ninth Circuit panel has new ideas for determining what that point is.
Last week, a three-judge panel for the appellate court struck down Hawaii’s requirement that a person buy a handgun within 30 days of obtaining a state-mandated purchase permit. It found that such a short permit validity window was “impermissibly ‘abusive.'”
“Accordingly, we affirm the district court’s judgment that this aspect of § 134-2(e) is unconstitutional under the Second Amendment,” Judge Daniel Collins wrote in Yukutake v. Lopez.
That language, deriding Hawaii’s purchase permitting process as “abusive,” is directly informed by what the Supreme Court of the United States (SCOTUS) has written. While SCOTUS invalidated subjective “may-issue” permitting regimes like the kind formerly in effect in New York, it also gave preliminary approval to a different system of permitting in a much-discussed footnote of the opinion.
“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit],'” Justice Clarence Thomas wrote in Bruen. “Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.”
While Justice Brett Kavanaugh echoed that basic point in a concurrence, nobody expounded on how exactly those systems fit under Bruen‘s history-based test. Nevertheless, some lower courts have used that argument to broadly approve background checks and permitting requirements for both the carrying and sale of firearms.
“But whatever Bruen’s unstated reasoning was, the Court’s dicta in footnote 9 must be understood as having effectively concluded that attaching modern-day background checks to the acquisition of firearms satisfies both the ‘how’ and ‘why’ aspects of Bruen’s historically based test,” Collins wrote.
However, while the High Court didn’t fully explain how permitting systems pass constitutional muster, it did hint at a few reasons how those systems could still be subject to legal challenges.
“That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry,” Thomas wrote.
This questioning of systems “put toward abusive ends” with wait times, fees, or other impediments has inspired gun-rights advocates to challenge aspects of the “Bruen-response” laws passed in former may-issue states and localities. Yet neither SCOTUS nor many appellate judges have established a concrete standard for when a gun permitting system has crossed the line of being “abusive.”
Judge Collins attempted to change that in Yukutake.
Collins drew on long-established First Amendment principles for his test. He said the Supreme Court invoked those same principles during Bruen when it used language from 1969’s Shuttlesworth case on permitting for public demonstrations, emphasizing that permit issuance must be guided by “narrow, objective, and definite standards.”
“Absent further guidance from the Court, this same approach is appropriate here,” Collins wrote. “Accordingly, in determining whether a particular feature of an otherwise-valid background-check-based permitting system is impermissibly ‘abusive,’ one should apply in the Second Amendment context, mutatis mutandis, the same principles applied in evaluating permitting systems in the First Amendment context.”
He described how, in multiple cases, SCOTUS has previously held that advance permitting requirements are valid for a limited range of First Amendment conduct—like marches or rallies in public spaces. However, it has found those requirements must meet explicit constitutional requirements guarding against “undue delays,” licensing discretion, and other burdens.
Transferring those holdings into the Second Amendment context, Collins held that “a firearms permitting scheme must not ‘delegate overly broad licensing discretion to a government official.'”
“The applicable time frames governing the system must be ‘specified’ in advance, avoid unreasonable and undue delays, and provide for prompt judicial review,” he added. “The practical logistical burdens on firearms possession that arise from the operation of the background-check-based permitting system—which are akin to logistical limitations on the ‘time, place, and manner’ of speech—’must be narrowly tailored to serve a significant governmental interest’ and ultimately ‘must leave open’ the full exercise of Second Amendment rights.”
As a result, Collins functionally revivified a form of means-end scrutiny in Second Amendment jurisprudence, but one that sets a high bar for government success. It’s one that, in the Yukutake case, the state of Hawaii failed to clear.
“The State has not carried this burden to justify its very short temporal limit on firearms-acquisition permits,” Collins concluded. “While the State presumably has a valid interest in ensuring that the background-check results are not stale, the State has pointed to no evidence that would support the extravagant view that anything over 10 days or 30 days counts as stale.”
It remains to be seen how influential Collins’ First Amendment-inspired test will be. It will likely be of interest to gun-rights advocates suing various governments in states under the Ninth Circuit’s jurisdiction, like California, which features numerous cities accused of charging exorbitant fees and imposing extended delays for issuing permits.
But it may not catch on if other judges react to it like Collins’ fellow conservative co-panelists. Judge Kenneth Lee concurred in the judgment against Hawaii’s restrictions but also wrote separately to take issue with Collins’ “abusiveness” test. He argued that SCOTUS would disapprove and that abusiveness should be determined by the same history-based test that Bruen requires.
“Admittedly, I am unsure what to make of footnote 9,” Lee wrote. “But given that the Bruen court shunned interest-balancing tests, I think we should—absent clear direction from the Supreme Court—determine ‘abusive ends’ by comparing Hawaii’s temporal limit in its firearms permitting regime to relevantly similar historical analogues.”
He also noted the practical concerns surrounding lower courts applying interest-balancing tests that led SCOTUS to do away with it in the first place.
“I am wary of even a limited means-end inquiry because our court has a history and tradition of whittling down the Second Amendment through means-end analysis,” he wrote.
Furthermore, the Ninth Circuit’s predilection for overturning pro-Second Amendment panel decisions en banc hangs like the Sword of Damocles over the novel test. As it has more than 50 times, the court could again decide to review the case in full following an inevitable appeal from Hawaii. At that point, the Collins test will probably be vacated and replaced by a new opinion.
Even if Collins’ “abusive ends” test doesn’t catch on, it still represents one of the first significant attempts to flesh out a functional standard for reviewing challenges to aspects of otherwise valid firearm-permitting schemes. The issue won’t be going away any time soon.
Podcast: Bearing Arms’ Cam Edwards on Trump’s Latest Gun Moves [Member Early Access]
By Stephen Gutowski
This week, we’re looking at a few actions the Trump Administration just took on gun policy.
To wade through those moves and navigate where the signs point, we’ve got Cam Edwards of Bearing Arms back on the show. We look at different stories from Health and Human Services (HHS), the Department of Justice (DOJ), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). As Cam noted, some were bigger deals than others.
First, HHS deleted a Biden-era report calling for new gun restrictions–like an “assault weapons” ban–from its website. Cam said that move was one well within the President’s authority. He said that while the action arrived at a comparatively slow pace to some of the other things the Trump Administration is doing, it mirrored what it did in shutting down the White House Office of Gun Violence Prevention and could signal more is coming in the short term.
Then there is the first rule related to guns from the new administration. The DOJ published a plan to restart the gun rights restoration process. Cam said it was more of a plan to make a plan, but he argued it was another strong sign the administration plans to follow through on promised gun rulemaking.
The final development points in the same direction and may be the strongest indicator of what’s to come, according to Cam. That’s the appointment of Robert Leider as the new ATF Chief Counsel. Cam argued that Leider, a Second Amendment scholar and gun-rights advocate, will likely put his expertise to use to help enact numerous pro-gun reforms.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is also available on our YouTube channel. An auto-generated transcript is available here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Get a 30-day free trial for a subscription to The Dispatch by clicking here.
Plus, Contributing writer Jake Fogleman and I recap the en banc Ninth Circuit’s newest decision upholding California’s ban on magazines capable of holding more than ten rounds and its much-discussed video dissent from Judge Lawrence VanDyke. We also talk about a separate Ninth Circuit panel’s ruling striking down Hawaii’s unique restrictions on handgun sales. Finally, we cover a long awaited en banc Eleventh Circuit decision dealing with Florida’s post-Parkland ban on gun sales to adults under the age of 21.
Analysis: Trump Administration Begins Push for Gun Regulation Reforms [Member Exclusive]
By Stephen Gutowski
On Wednesday, the Department of Justice released a new rule that seeks to re-open the long-dormant gun-rights restoration process.
It was the first public result of President Donald Trump’s executive order requiring Attorney General Pam Bondi to review executive branch gun policies. It’s late, and it’s more of a plan to make a plan than an immediate action, but it is a first step toward something gun-rights activists have been pursuing. It came as the Department of Health and Human Services announced it had deleted the outgoing Surgeon General’s 2024 report calling for stricter gun laws from its website–another move gun-rights activists cheered.
However, the administration did something else that’s gotten less attention but does more to foreshadow plans for further regulatory action on guns.
This week, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) updated its website to show that George Mason University professor Robert Leider is now the agency’s assistant director and chief counsel. The ATF didn’t respond to a request for comment on Leider’s appointment, but he’s a well-known Second Amendment scholar and gun-rights advocate. In fact, he’s appeared several times on The Weekly Reload Podcast and penned an analysis piece for us about what the Trump Administration should do with the ATF this time around.
So, his views are pretty well established. Let’s take a look at some of what he’s said.
“Instead of using their political capital to try and dismantle the ATF, gun advocates would likely see more success working within the system,” Leider wrote at The Reload in December. “While federal firearms laws cannot be repealed by executive action, they still delegate significant power to the Attorney General (who subdelegates to ATF) on how the laws are implemented. The Trump Administration could shift many ATF policies in their favor.”
During the campaign, Trump promised to roll back President Joe Biden’s ATF rules during the first week of his presidency. That means the pistol-brace ban and used gun sales rule are likely candidates to be rescinded. Same for the “ghost gun” kit ban–although the Supreme Court may have its say on that before the administration acts.
Of course, Trump hasn’t stuck to his promised timetable. He also hasn’t made gun policy a top issue since taking office, despite pushing the boundaries of politics and law in many other areas through his first few months in office. The review process he ordered could also serve as a way to pick and choose which of the priorities gun-rights activists have they want to address, especially given Bondi’s history of backing some new gun restrictions.
But appointing somebody like Leider to a position like ATF chief counsel suggests gun-rights activists won’t necessarily have to rely on the whims of Trump or Bondi to see the kinds of reforms they’re looking for. With a regulatory expert in place who is committed to using that expertise to roll back restrictions, it’s more likely to happen even without prodding from above. Picking a professor with deep knowledge of the laws and rules that govern how ATF operates is more likely to produce workable reforms than picking another TV star or podcaster whose talents are more apparent on camera than in the federal register.
Additionally, Leider has already mused on some places where Trump could turn ATF’s powers to gun-rights advocates’ advantage. Instead of just rescinding the Biden-era ATF rules–something that will still require time and expertise to accomplish–Leider has suggested other ways to dismantle some gun restrictions under current law.
“Although federal law restricts the importation of firearms without a finding that the firearms are useful for sporting purposes, ATF determines what constitutes ‘sporting purposes’ for firearm importation. The Trump Administration is no more bound to the ATF’s definition of sporting purposes from the Clinton Administration than the Clinton Administration was bound by the Reagan Administration’s definition. Consequently, there is nothing stopping the Trump Administration from having a more expansive conception of what constitutes a legitimate sporting purpose.”
He further noted that it was within Trump’s authority as president to simply reverse the ATF’s current approach to industry inspections and other enforcement efforts.
“The Trump Administration can also guide how ATF exercises its investigative and prosecutorial discretion over federal firearm licensees,” Leider wrote. “This could include reversing the Biden Administration’s ‘zero tolerance’ policies that have led to federal firearms licensees being revoked over minor paperwork violations.”
All in all, he argued that the most effective approach gun-rights advocates could take to the ATF under Trump’s new administration would be to work within the system.
“Reforming federal firearms policies requires extensive technical knowledge of administrative law combined with a pragmatic and realistic policy agenda,” he wrote. “If gun advocates want to translate their electoral success into tangible policy changes, they will need to work within the regulatory state that many of them despise rather than trying to overthrow it.”
Now, Leider will be the one in charge of navigating the ins and outs of that regulatory state. His appointment is the strongest indicator the Trump Administration will push forward with the rule rollbacks Trump promised and may do much more than that. Given the margins in Congress make significant statutory reforms unlikely, that’s probably the best chance gun-rights advocates have for meaningful gun policy reforms for at least the next two years.
Of course, we’ll still have to wait and see if Leider can deliver.
That’s it for now.
I’ll talk to you all again soon.
Go Birds,
Stephen Gutowski
Founder
The Reload
