Huge 2A win: Supreme Court Second Amendment decision sweeps away lower courts ‘interest-weighing’ tests on guns

Share:

By Larry Keane and our friends at NSSF

The U.S. Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen did more than strike New York’s “may issue” subjective concealed carry permitting scheme. The ruling also told lower courts that attempting to balance the individual’s Constitutional right to keep and bear arms against the government’s interest in controlling that right violates the Constitution.

In other words, the Supreme Court told the lower courts to cut it out.

That’s significant, since it was a practice adopted by lower courts to seemingly always justify keeping gun control laws in place that ranged from subjective “may issue” concealed carry permitting laws to bans on entire classes of commonly-owned firearms and standard-capacity magazines.

The majority 6-3 opinion specifically singled out the court’s “two-step” process that has been applied to Second Amendment cases. That was a legal theory proposed by Justice Stephen Breyer in his dissent in District of Columbia v. Heller, but which the majority expressly rejected.

‘One Step Too Many’

“Despite the popularity of this two-step approach, it is one step too many,” wrote Justice Clarence Thomas in his opinion which was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

“Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means end scrutiny in the Second Amendment context.

Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

Justice Thomas described the inappropriate two-part test adopted by lower courts to evaluate whether a gun control law passed Constitutional muster.

First, the government always justified a law claiming the law in question fell outside of the Second Amendment protections. If the government proved the activity wasn’t protected, the examination stopped.

If the law in question was within the Second Amendment’s scope – often courts would just “assume” it was protected – the courts then examined how closely the law came to cutting into the core of the Second Amendment to determine the level of scrutiny to apply, almost always determining the lesser intermediate scrutiny applied making it easier for the courts to uphold the infringement based on government interests.

Heightened scrutiny was almost never applied. Justice Thomas noted that neither the Heller nor the McDonald decision relied on – or authorized – this two-step tier scrutiny means-end (interest balancing) test for evaluating whether a law or regulation infringed on the Second Amendment rights of individuals.

Second Amendment is the Test

“We declined to engage in means-end scrutiny because ‘[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon,’” Justice Thomas wrote.

“We then concluded: ‘A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.”

“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” he added.

Justice Thomas went to lengths to explain why means-end tests don’t pass Constitutional muster. In the end, the government will always find reason for the government to prevail. That strikes at the heart of enumerated rights – those rights which are endowed by an individual’s Creator and expressly belong to the individual, not the government.

“If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of ‘intermediate scrutiny’ often defer to the determinations of legislatures,” Justice Thomas explained.

“The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”

Justice Alito, in a concurring opinion, reinforced Justice Thomas’s rejection of the “tiered scrutiny” approach to Second Amendment-related cases.

“Under that approach, a court, in most cases, assesses a law’s burden on the Second Amendment right and the strength of the State’s interest in imposing the challenged restriction,” Justice Alito wrote. “This mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.”

Court Impacts

“Like that dissent in Heller, the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit,” Justice Alito added.

“That argument was rejected in Heller, and while the dissent protests that it is not rearguing Heller, it proceeds to do just that. Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun.”

That’s significant since there are cases pending before the Supreme Court that hinge on lower courts applying balancing tests rejected by the Court. In Duncan v. Bonta, a challenge to California’s ban on standard capacity magazines, the U.S. Court of Appeals for the Ninth Circuit used this very test, even after a three-judge panel from the same court found that California’s law “simply cannot pass constitutional muster, whether analyzed under strict or immediate scrutiny.”

The full court, however, ignored that. The decision reads, in part, “The court applied a two-step framework to review the Second Amendment challenge…” and “…determined that intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms.”

That case is being petitioned to the U.S. Supreme Court.

There’s also Miller v. Bonta, a challenge to California’s ban on Modern Sporting Rifles (MSRs). The Ninth Circuit also heard that case but granted California’s Democratic Attorney General Rob Bonta an indefinite motion to stay a decision made by U.S. District Court Judge Roger Benitez, who found the ban unconstitutional. AG Bonta argued for the ban under an interest-weighing test. There’s a similar challenge, Rupp. v. Bonta, that was also stayed at the Ninth Circuit.

All will now be subject to the Supreme Court’s explicit rejection of interest-weighing tests.

Reyes: We’re facing the collapse of law enforcement in America. It will lead to the end of our country as we know it.

Editor’s note:  In what has become something of an annual tradition (sadly), Law Enforcement Today writes about the challenges facing not only law enforcement, but our country in general.

These articles have proven to be among the most popular we post. When we started this series, we thought things were pretty bad. However, since January 20, 2021 – things have gotten much, much worse.

In 2020 during the run up to the November election, we tried to warn people what our country was up against, and what the Democrats had in mind. Sadly, but not surprisingly, we have found ourselves to be right.

Law Enforcement Today is written primarily for law enforcement officers and those who support law enforcement. However, our audience has expanded to include those who support our military, our Constitution and all the liberty and freedom it guarantees and are God-fearing patriotic Americans.

A lot of our readers ask how you can get involved. With that in mind, we invite you to prayerfully consider our membership program—LET Unity. The proceeds raised from that program are used to reinvest into capturing more stories about the heroes who protect us at home on our law enforcement agencies, and those who protect us abroad in the United States military.

The majority of our content producers for Law Enforcement Today are active, retired or wounded law enforcement officers.  The revenue we make helps provide for their families and helps bring a TRUE voice about what’s happening in America.

For the rest of you… simply keep following, keep reading, and keep sharing. Especially sharing…the more people who read these stories, the better it is for our law enforcement and military brethren.

I, [name], do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So, help me God.

On July 4, 1776, a group of patriots decided they had suffered enough at the hands of the British monarchy. On that date, at tremendous risk of their own personal safety and more so their very lives, they put quill to paper and signed the greatest document ever forged. A document that gave birth to the greatest country ever to grace the face of the earth—the United States of America.

Yet here we are, 245 years nearly to the day that document was signed, and we find our country at a crossroads. When you look at all the great dynasties in the history of the world, all of them eventually collapsed. The Roman Empire…the British Empire…they number many.

Mortality.

It’s something that you don’t really consider when you’re young.  You can do anything.  You’re invincible.

But as we grow older, we start considering that mortality.

With all of that in mind, it’s time we start considering the mortality of America.

I spend a substantial amount of time working in two different arenas – the world of law enforcement and the business world.

By day, I run a marketing agency. Among the areas we work in, we do extensive work in the firearms industry.  My travels take me across the country – often to some of the most rural parts of America.

By night, I am the National Spokesman for Law Enforcement Today.  I’m not a police officer.  I was tapped because I can do one thing cops can’t do.  I can give them a voice.  I can run my mouth and no agency can fire me.

That travel that I referenced – both in the business world and supporting the LE world – has afforded me countless opportunities to work side by side with some of the greatest patriots in America.

My closest friends are either in law enforcement or either active or retired members of some of the most elite military forces in America.  And from our greatest warriors to our everyday citizens… I can tell you the underlying fear that so many are thinking about – and that’s the seemingly inevitable collapse of society if we don’t make some monumental changes.

As a Christian, I believe we are in the middle of some serious spiritual warfare.  But you don’t have to be a Christian to understand that the very soul of America is under attack right now.  And the rapid erosion of the Thin Blue Line has us sitting on a powder keg.

Historically, if you look at the collapse of some of the greatest empires in the world, it happened from within.  Simply put, it raises the distinct danger that America won’t be conquered by foreign enemies … but rather from domestic ones.

President Ronald Reagan probably put it best when he said, “ Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected and handed on for them to do the same.” Prophetic words indeed.

When historians say that an empire fell, it means that the central state no longer exercised its broad power.  That happens either because the state itself ceased to exist or because the state’s power was reduced as parts of the empire became independent of its control.

It typically doesn’t happen because of a single cause, but rather a long process.  The main factors that historically lead to imperial collapse are:

  • Economic issues
  • Social and cultural issues
  • Environmental issues
  • Political issues

Now none of these factors are causes in and of themselves, but rather are ways to categorize causes.

What that means is you wouldn’t decide that Rome fell because of politics, but rather you’d explore political factors to understand the collapse.  And in those issues are warning signs for us as Americans.

That brings me to the threat we face today.

Have you ever heard of something called the Cloward-Piven strategy? It’s not exactly something the mainstream media talks about… but it’s something you need to be aware of, because it’s what we’re facing in America today.

American sociologists and political activists Richard Cloward and Frances Fox Piven created the political strategy in 1966.  The idea behind it is to overload the U.S. public welfare system to create a crisis that would lead to a replacement of the welfare system with a socialist system of “a guaranteed annual income and thus an end to poverty”.

If that doesn’t describe what we’re seeing from Democrats who are running Congress and the White House right now, I don’t know what does.  But it’s a much bigger threat than you might realize.  That’s because it’s so incredibly pervasive.  It’s poisoning the very roots of America.

And it calls to mind the words of Jefferson:

“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

We are seeing groups here in America demanding open borders.  Demanding the decriminalization of crossing into our country illegally. Since Joe Biden’s inauguration on January 20, we have seen our southern border over-run, not only from Mexican citizens but by people from all around the world, including some on terrorist watch lists.

Joe Biden assigned his vice president, Kamala Harris to oversee the border crisis, but in nearly three months since being given that assignment, Harris has not visited the border first-hand to see exactly what is going on—not once.

At the same time, across our great country, we are seeing the CRIMINALIZATION of law enforcement. All across the country, from Minneapolis to Portland, Los Angeles through Chicago to New York, there is a literal war on police. Major cities such as Seattle, Portland, Chicago and New York are seeing officers either retire early or outright leave. Morale in police departments across the country is in the toilet.

We’re seeing agencies desperate for officers, because as more and more retire (or count down the minutes to retirement), we see a deficit in the number of incoming recruits.  After all, why would you want to live a life of service when you’re just going to be attacked for that service?

In the aftermath of the George Floyd death in Minneapolis a year ago, we have seen primarily Democrats across the country demanding defunding of police, taking away protections such as qualified immunity from officers, and emasculating police to the point where even when they are completely justified in using deadly physical force, neo-Marxist groups such as Black Lives Matter and Antifa take to the streets to cause death and destruction.

One of the demands from activists was that police officers be required to be issued body cameras, which many jurisdictions have done. Yet, when police are put in the position of having to use deadly physical force, what is shown on the body cameras is not believed, called edited footage. It’s a classic heads I win, tails you lose for law enforcement officers.

We see political activists masquerading as police chiefs.  We see them working hand in hand with liberal politicians to not only attack the rights of law-abiding citizens, but also to destroy the morale of their own departments. We watch as they flat out disrespect the oath of office they took and put officers in no-win situations. Last year in the wake of the George Floyd death, we saw police chiefs kneeling on the ground with the very people who want them dead.

If I were to design a road map for how to collapse America, starting with law enforcement, here’s what it would look like.

Step one: Divide the protectors.

The refusal to allow rank and file patrol officers to cooperate with federal law enforcement to uphold the law.  It’s a slap in the face to Americans and it’s a dereliction of duty. It’s also a clear and intentional move to create a divide between local, state and federal law enforcement.  Divide the protectors… conquer a society.

Step two: Divide the supporters.

Force officers to choose between enforcing unconstitutional legislation like Red Flag laws, which deny citizens of their right to due process… and providing for their own family.

Since the beginning of  the coronavirus pandemic last year, we’ve seen draconian emergency orders put in place by power-hungry governors, with police officers being put in the position of having to be COVID cops or face discipline. We’ve seen videos of police officers arresting people at high school football games for not wearing a mask, breaking up groups of Hasidic Jews at a funeral in New York City and shutting down a gym in New Jersey for breaking COVID rules.

Make cops the bad guys.  Take the people who have historically supported law enforcement and convince them that cops are now the enemy.  Divide the supporters… conquer a society.

Step three: Remove their protection

Make cops afraid to be cops.  Encourage disrespect on them like water bucket attacks.  Don’t go after the criminals who attack them.  When officers arrest criminals, let them back out on the street within hours because a liberal judge determined that the violent suspect with a lengthy criminal history isn’t actually a threat.

In city after city across the country, we have seen George Soros-funded district attorneys such as George Gascon in Los Angeles, Kim Foxx in Chicago, Larry Krasner in Philadelphia and scores of others go light on criminals while going hard after police officers.

Then threaten law enforcement officers that if they do their job, they’ll be investigated.  That if they have to fight for their lives, they’ll end up being charged.  Remove both their desire and their ability to police.

Step four: Flood America  

By some estimates, one million people will make illegal entry into America this year.

There are fewer than 850,000 law enforcement officers in America.  Do the math.

Now let criminals create havoc in society but instead of deporting them or actually cracking down on crime, let Americans know that the real problem is guns owned by law abiding citizens and pass legislation to take away their rights.

Step five: Destroy our homes

Own the media.  Own Hollywood.  Force feed Anti-American, socialist and communist policies into our homes and our education system.  Convince our children that right is wrong and wrong is right.  Take God out of society, destroy the family structure and teach everyone that the solution to your problems is in the form of pills, porn and the government.

Step six: Destroy our schools

Keep children out of school for over a year for in-person learning. Feed kids anti-American propaganda such as the 1619 Project which teaches America was founded on racist principles by a bunch of white racist men. Erase history and replace it with critical race theory, which teaches white children to hate themselves and believe they have special privilege because of their race. Go completely against Dr. Martin Luther King’s edict that skin color is more important than the content of one’s character.

Step seven: Destroy our military and intelligence agencies

Turn our military and intelligence agencies into indoctrination mills where sexual preference or sexual identity is considered to be of primary importance while the more important mission of looking at what those who seek to destroy us are doing and making sure that the primary focus of the military is on killing people and breaking things, now the sexual identity of a soldier’s parents.

Step eight: Bypass Congress for gun control 

Have “private businesses” like Dicks and Walmart determine what you can and can’t buy. Let the White House determine by executive order what is and what is not an “assault rifle.”

Step nine: Lose control of the truth to tech tyrants and mainstream media

Allow Facebook, Twitter, Instagram, Google, YouTube, LinkedIn, TikTok, and Snapchat determine what you can see and what you can say… because it’s not a violation of the Constitution if it’s done by private enterprise. Allow social media to have unfettered ability to censor content that they do not politically agree with or people who have an opinion that goes against the politically desirable narrative.

Step ten: Use “social justice” to vilify love of country 

Take every patriotic American who wants to see a better country for their children and call them a racist, etc. if you don’t agree with them.  Then mass report them on social media to make sure their accounts are cancelled, and their voices are shut down.

Then say you think they’re a threat and have a judge determine that combat veterans and our nation’s greatest warriors need to be disarmed because of post-traumatic stress.  Then force officers to go to war with their own brothers and sisters.

Take people who had legitimate concerns about last November’s election and who raised serious questions about events which made no sense and put them in the category of conspiracy theorists or worse yet, insurrectionists hell-bent on the destruction of the American way of life, which is absurd.

The Collapse

It’s happening right in front of our eyes.  And it’s starting with a full onslaught against our law enforcement officers in every way, shape and form.

Want to save America?  We need to start by understanding the enemy.  And sometimes the biggest threat that an empire faces is the enemy within.

We hope you’ll consider getting in the fight with us.  Here’s what Law Enforcement Today – the largest police-owned media outlet in America – is doing.

We at Law Enforcement Today want to make our stance very clear.

We strongly and firmly stand behind the Second Amendment, companies that keep civilians and law enforcement officers safe through products and innovation, and the men and women who serve and protect our communities and our country.

We are launching a new series of options to help our partners and other patriotic businesses to be able to connect with consumers. While we can’t replace Google, Bing or Facebook – we sure can provide options to ensure that these companies and our brothers and sisters have a voice.

We welcome with open arms companies that openly support law enforcement, and we are proud to offer them options to get their products to market.

We started noticing the problems a couple of years ago.  Social media was scaling back the reach of content that it didn’t believe people should see. Those problems continue today, with both myself as well as the founder of Law Enforcement Today, Robert Greenberg being kicked off of LinkedIn.

Not that there was anything offensive about it.  We’re talking about pro-police videos, stories about patriotic Americans and more.

And from our perspective, that created a huge problem.  We have some of the greatest warriors in the world.  Yet their voices and their stories were being buried.

The mainstream media, on the rare occasion that it would tell some of these stories, would give you only a piece of them.  They’d cram as much as they could into a 90 second segment, slap their bias on it and that was it.

We needed to fix it. And so we are.

Law Enforcement Today (LET) is proud to announce the launch of LET Unity – a new home focused on bridging the gap between civilians and civil servants.  We’ve merged with The Whiskey Patriots to massively expand content, rolling out hundreds of videos to members.

Many of those in our focus groups dubbed it the “Netflix of the law enforcement community”.  But the truth is, it’s so much more.

The first officer in the door at the Pulse nightclub shooting.

Emergency responders from the Parkland shooting.

The bomb squad that responded to the Aurora movie theater massacre.

Survivors of the Dallas five killings.

The first Marine Guard hostage in the Iran crisis.

The CIA agent who started a counter human trafficking company.

SWAT teams.

Sniper schools.

World War II veterans.

And so, so much more.

The membership is less than the cost of two coffees a month, and those who sign up for an annual membership will get some surprise bonuses in the mail.  We decided to charge a nominal fee so we could take all of the proceeds and reinvest them into capturing more of these stories.  The majority of our content producers for Law Enforcement Today are active, retired or wounded law enforcement officers.  The revenue we make helps provide for their families and helps bring a TRUE voice about what’s happening in America.

On top of that, we’re opening up the platform to some well-known podcasters who are going to be joining the team with some incredible content soon.

We have a problem in society.  Censorship has created an existential threat to democracy.  But even worse is the risk we run that some of these incredible stories of patriotism, hope, faith and our Sheepdogs would be lost.

We’ve launched a series of content with Concerns of Police Survivors (C.O.P.S.) to share the stories of survivors.  We will also be dropping a weekly law enforcement focused newscast that addresses some of the most important topics in the country… and helps bridge the gap between those who serve and those whom they serve.

On top of that, we’ll soon be rolling out a series of private discounts and special promotions to members only as a “thank you” for being a part of the family.

You can also download the app to watch the content right from your iPhone.

We hope you’ll join us in this journey, knowing that your membership is going to give a voice to those who have been silenced for so long.

Our country is currently at a crossroads, and with that, so are our brothers and sisters in law enforcement. Today more than ever, that thin blue line that protects the sheep from the wolves is more tenuous that at almost any time in our country’s history. We need to protect and endorse the sheepdogs—our police—who hold the wolves at bay. There has never been a more important time in our nation’s still young history when we need patriots to stand up and support our men and women on the front lines of this fight.

Click here to sign up. 

If you are one of the many companies out there that’s being censored – or you’re worried about what’s to come – don’t hesitate to reach out today. We are all in this fight together. I can be reached at [email protected]

We will not be silenced.  You shouldn’t be either.

God bless you all, and God Bless America.

Want to make sure you never miss a story from Law Enforcement Today?  With so much “stuff” happening in the world on social media, it’s easy for things to get lost.  

Make sure you click “following” and then click “see first” so you don’t miss a thing!  (See image below.)  Thanks for being a part of the LET family!
Facebook Follow First

 

Share:
Submit a Correction
Related Posts