The Changing Face of Second Amendment Law, Some Federal Criminal Law Implications & A Mistake You Shouldn’t Make

If you haven’t paid attention to Second Amendment law for the past fifteen years or so here is a quick summary:  In 2008 the Supreme Court said the Second Amendment gives citizens a personal right to keep firearms in the home for self defense (even when unconnected to militia service) and in 2022 the Court in New York State Rifle & Pistol Association v. Bruen said that you also have right to carry guns outside your house for self defense.  Bruen also said that New York’s law requiring persons seeking gun carry permits to demonstrate “good cause” was unconstitutional.

Bruen is only a couple months old so the true scope of the decision is unknown.  The case involved New York State law but will it have any effect on federal criminal law (our firm’s main focus)?  Some smart lawyers think it might.  For example, does Bruen call into question federal laws (e.g. 18 U.S.C. 922) preventing convicted felons or the mentally ill from possessing firearms?  If the answer to any of these questions is yes it will have implications nationwide  We will keep an eye on these issues and perhaps do future posts.

In the meantime, there is one potential pitfall we can clear up for our readers now: even if your state has a gun law analogous to New York’s (i.e. it includes a “good cause” requirement for carrying firearms outside the home) it does not mean you can now carry guns outside your home without a permit.  According to the Bruen opinion, this applies to you if you live in California, DC, Hawaii, Maryland, Massachusetts or New Jersey.

This is true for two reasons.  First, although these states’ laws are now probably at least partially unconstitutional, the highest court of those states should make that explicit.  Perhaps there is some distinction that can be made between your state’s “good cause” requirement and New York’s.  You do not want to be the test case at risk of conviction or jail if you are wrong.  Second, state gun permit laws contain additional requirements which may well remain valid.  For example, Maryland requires permit applicants to demonstrate the following: lack of felony or certain misdemeanor convictions; no substance abuse issues; background investigation revealing no propensity for violence; and completion of the Maryland State Police approved firearms course within two years of the application.  Some of these requirements may now be open to constitutional challenge but you do not want to be the test case for that either!

 

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