Conservative analysts such as Jonathan Turley and Stephen Halbrook are applauding Eighth US Circuit Court of Appeals Judge Duane Benton for his recently issued opinion in the case called “Worth et al v. Jacobson.” But, though it is a decision that blocks the state of Minnesota from prohibiting gun "licenses" for people aged 18-20, Judge Benton actually reaches this positive conclusion by utilizing a faulty approach to the Second Amendment.
As historian Halbrook reports for Reason, Judge Benton’s majority decision partially hinges on the recent “United States v. Rahimi” decision (regarding Zackey Rahimi, a man who had a restraining order on him and was blocked from having a gun, per an interpretation of the 1968 Gun Control Act) and partially on the "Second level" of the "Bruen Standard" analysis from two years ago in the “NY Rifle and Pistol Assoc v. Bruen” Supreme Court ruling. In this case, the judge determined that the state of Minnesota blocking people who are under 21 from getting gun "licenses" is substantively different from blocking a person with a restraining order on him.
This is false.
Neither the age-restricted person nor the man with the “restraining order” has been given due process, convicted of a crime and put in jail, where he could be disarmed.
A restraining order is applied without any conviction of a crime or normal due process, thus, just like people between age 18 and 21 have not been convicted of crimes, so is the person on whom the government has placed a "restraining order."
If a person is not in prison, and not under arrest, then the government must be deeming him either safe enough to be in society, or the government has not proven a case in court to remove that person from society and place him in jail.
This raises the eternal question that runs through the flawed “blocks of gun ownership” found in the 1968 Gun Control Act:
"If you in government think this person is safe enough to not be in jail, then why is he not safe enough to exercise his right to keep and bear arms?"
As Halbrook writes, Judge Benton then mixed that “Two-Tier Bruen Analysis” into the mix, an “analysis” of gun-ban statutes that requires, first, a reading of a statute to see if its wording comports with the actual wording of the Second Amendment, and, second, a reading of the statute to see if the proposed infringement has an “analogue” to some other “infringement” that might be found in a US jurisdiction after the adoption of the Bill of Rights. Perspicacious readers likely will notice an incongruity – nay, a QED – in the two standards, and we will return to that, but first, let’s see what Mr. Halbrook wrote for Reason:
“Minnesota argued that at the Founding, states restricted guns in the hands of ‘irresponsible or dangerous groups, such as 18 to 20-year-olds.’ (In reality, no state banned carrying guns by that age group.) Quoth Rahimi: ‘[W]e reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible.'’ That concept is too vague and elusive.’"
Indeed, not only did no state ban people in that “age group” from carrying arms, the Second Amendment strictly FORBIDS such government activity, and the Militia was considered to be the population of gun-bearing-aged individuals in society, which often meant teens aged thirteen or fourteen. Revolutionary hero Nathan Hale had barely turned 21 when he was hanged by the British.
Halbrook adds:
“A historical analogue that ‘remotely resembles’ the carry ban, the court noted, will not suffice, then (Judge Benton) looked to Rahimi for the test: ‘A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit[.]’ As Rahimi added: "Why and how the regulation burdens the right are central to this inquiry."
And this is where Judge Benton fails, as does the so-called “Two-Tier Bruen Standard.”
Related: Supreme Court Avoids Second Amendment, Okays Gun Bans For People Outside Prison
The "First Level" of “Bruen Analysis” requires courts to see if a gun-grab statute conforms with the wording of the Second Amendment. But the "Second Level" lets courts see if the statute in question is analogous to some historical example of a gun-grab. Meaning, the "Second Level" undercuts the "First Level" because "First Level" requires courts to see if a statute breaches the strict wording of the 2A, and that wording says, "SHALL NOT BE INFINGED."
Logically, an infringement of any kind cannot stand under the "First Level" of the strict wording of the Second Amendment.
Judge Benton’s claim, “why and how the regulation burdens the right are central to this inquiry” is not only incorrect for the inquiry he just adjudicated, it’s ALWAYS incorrect.
The Second Amendment doesn’t offer exceptions to allow for infringement. It’s doesn’t say, “…shall not be infringed unless a judge or a government can come up with an ‘excuse as to why’ they are infringing or they can purport some comfy way ‘how’ to grab a gun or block its purchase.” The Second Amendment is universal and explicit.
SHALL NOT BE INFRINGED.
The British Provost Marshall who oversaw Nathan Hale’s execution at the gallows in 1776 reportedly denied him a Bible and the attendance of a clergyman. He was denied a trial. At every level, the British government turned away from recognizing and respecting his rights.
Are we to celebrate pyrrhic victories that treat our Natural Rights in a similar fashion, decisions that superficially appear to defend the right to keep and bear arms, but which rest on overt and systematic government carve-outs undercutting our rights?
Any clear analysis of this ruling, of “Rahimi,” and of the two-tier “Bruen” standard reveals the undeniable truth that the judicial “decision makers” are not serious about defending our rights, even as some folks celebrate what appears to be a “win” in the short term.
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