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SCOTUS issued its opinion New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) while Rahimi was moving through the courts. In Bruen, the court set the standard challenging Heller that explained that when a firearm regulation is challenged under the Second Amendment, the Government must show that said restriction is consistent with the Nation's historical tradition of firearm regulation. Id., at 24, 142 S.Ct. 2111. In Bruen, the new standard directed district courts to examine the historical tradition of firearm regulation as it pertains to certain condut to help delineate the limitations of the right. The court explained that if a challenged regulation fits within historical tradition, it is lawful under the Second Amendment. However many lawyers and courts have interpreted this to mean strictly around the founding years. When the Government regulates firearm conduct, like how it regulates other rights, it bears the burden to justify various regulations. This has lead to split circuit opinions misunderstanding Bruen methodology. These precedents were not meant to suggest adhering to archaic laws trapped in time.
In Rahimi the court attempts to clarify Bruen to state that the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin firearm traditions. A court must ascertain whether the challenged law is relevantly similar to laws that tradition is understood to permit. It must analyze the balance between founding era rules and modern laws. Bruen dictated that if founding era laws regulated firearm use to address particular problems like serious mental illness, that will be a strong indicator that our contemporary laws imposing similar restrictions for similar reasons will also fall within a permissible category of regulations. Even when a law regulating firearms for permissible reasons, may not be compatible with the right if it does so to an extent beyond what was done at the founding. However, Rahimi specifically broadens the scope of Bruen by stating that when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.” Id., at 30, 142 S.Ct. 2111. The law restricting possession must comport with the principles underlying the Second Amendment, but it need not be a “dead ringer” or a “historical twin.” Thus most courts would conclude that section 922(g)(4) survives a Bruen challenge. However, the intent and purpose of Welf and Inst Code section 5250 does not have historical analogous laws and purposes as was present during founding era and beyond. Welf and Inst Code § 5256.6 reads: If at the conclusion of the certification review hearing the person conducting the hearing finds that there is probable cause that the person is, as a result of a mental disorder, a danger to others, or to himself or herself, or gravely disabled, then the person may be detained for involuntary care, protection, and treatment related to the mental disorder pursuant to Sections 5250. The certification review hearing serves as a legal mechanism to challenge the involuntary status since there is not enough time to challenge a 72 hour hold by writ. The LPS conservatorship is designed for long term confinement and treatment. A 14 day hold is often required to keep the person to stabilize their condition and then release them at the end of the hold or to request a 30 day hold or LPS conservatorship. Historical analogues indicate that the mentally ill were confined with no forms of due process and could be held for years with no means of formal judicial review as dictated by Mai. The purposes of the 922(g)(4) prohibitor was for those who were certified for a year or more, or determined by a criminal court to be NGRI. In Tyler v. Hillsdale County Sheriff's Department defendant stated: "Numerous other historical examples fail to conclusively demonstrate that [he] would have been disarmed when he poses no risk. For instance, historically society could disarm “any person or persons” judged “dangerous to the Peace of the Kingdome” under the 1662 Militia Act. 13 & 14 Car. 2, c. 3, § 1 (1662) (Eng.) ...... [he] is capable of exercising his right to arms in a virtuous manner. The right to arms was limited when an individual presented a “real danger of public injury.” The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents (1787), reprinted in 2 Bernard Schwartz, The Bill of Rights, A Documentary History 665 (1971) (emphasis added). Mr. Tyler simply does not present such a real danger of public injury". Although section 5250 does state that it is for dangerousness to others, the intent of the law was to confer the right to patients to have due process review for their involuntary hold, rather than to serve as a full fledged commitment hearing akin to a NGRI or MDO hearing. If citing to historical analogues, there is little literature about the disarmament of mentally ill individuals.
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28 C.F.R. § 25.6(j)(1) Everytown and Giffords presenting a possible case for changing the CFR to include NICS background checks for firearm licensing. Currently we have the FBI-CJIS uses the following for FOID background checks: National Crime Information Center (NCIC), Interstate Identification Index (III), National Instant Criminal Background Check System (NICS), and the United States Department of Homeland Security (DHS). However, gun control advocates push for tighter regulations and perhaps argue that requiring that more states adopt IL's state model in order to cut down on straw purchases and "lie and try" applicants. As they are concerned about the time to crime with stolen firearms or straw purchases, they could contend that by 28 C.F.R. § 25.6(j)(2) is too late to stop the crime as (2) reads: Access to the NICS Index for purposes unrelated to NICS background checks pursuant to 18 U.S.C. 922(t) shall be limited to uses for the purposes of:
(2) "responding to an inquiry from the Bureau of Alcohol, Tobacco, Firearms, and Explosives in connection with a civil or criminal law enforcement activity relating to the Gun Control Act (18 U.S.C. Chapter 44) or the National Firearms Act (26 U.S.C. Chapter 53)" Advocates and some law enforcement officials have pushed for greater access to the NICS. For instance, a 1998 rulemaking noted that local agencies wanted permission to access the database to determine if a person was in "unlawful possession of a firearm." The ATF resisted these requests. In the ATF's view, such expanded use would violate federal privacy laws. Moreover, ATF noted that the Brady Act only required federal agency reporting for the purpose of carrying out the federal background check provisions, rather than for a wider range of law enforcement activities. The permissive use regulations is constrained by a balancing act of complying with federal law, meeting the informational needs of local law enforcement, and ensuring privacy of the affected individuals. In arriving at the scheme in place today, the FBI and ATF has shown a willingness to expand NICS access to support local partners, but has apparently not gone as far as some of those partners may desire. The comprehensiveness and accuracy of the NICS has been a subject of frequent debate and attention. At the federal level, many agencies possess disqualifying information that would be relevant to a background check. Under the original Brady Act, federal agencies were required to furnish information to the Attorney General upon request 34 U.S.C. § 40901(e)(1)). However in Robinson v. Sessions, 260 F. Supp. 3d 264 (W.D.N.Y. 2017), the court noted in its opinion that the NICS index may only be accessed for purposes unrelated to NICS background checks when providing information related to issuing a firearm permit, in response to an inquiry from the Bureau of Alcohol, Tobacco, Firearms, and Explosives in connection with a civil or criminal law enforcement activity, or for the purpose of disposing firearms in the possession of a government agency. 28 C.F.R. § 25.6(j). The NICS audit log, however, may only be accessed for administrative purposes, such as analyzing system performance, and to support investigations and inspections of dealers. |
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Juvenile Dependency and
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