Attorney Marc J. Victor Gives His Legal Analysis about Bryan David Range vs. AG
August 17, 2023
Criminal defense attorney Marc J. Victor discusses the Second Amendment and how the courts have come to interpret what it means to “keep and bear arms.” He examines historical cases, including District of Columbia v. Heller (2008), McDonald v. Chicago (2010), and the landmark decision in New York State Rifle & Pistol Association v. Bruen (2022). He also highlights emerging challenges to existing gun regulations, including the federal statute prohibiting felons from possessing firearms.
The Constitutional Meaning of the Second Amendment
Courts, especially in the Ninth Circuit, often held that the Second Amendment only protected the right of states to maintain militias. However, this changed in 2008 with the significant decision in Heller. The Supreme Court ruled 5-4 that the Second Amendment protects an individual right to possess firearms for self-defense in the home. Writing for the majority, Justice Antonin Scalia stated that “[t]he Second Amendment pretty much means what it says.” This ruling laid the foundation for modern gun rights litigation.
Despite this ruling, Attorney Victor notes that Heller did not create a clear analytical framework for lower courts to assess Second Amendment cases. This results in uncertainty about how to handle future challenges.
The Doctrine of Incorporation and McDonald v. Chicago
Two years later, the Supreme Court decided McDonald. The ruling clarified that the Second Amendment applies not only to the federal government but also to state and local governments through the Fourteenth Amendment.
This process, known as selective incorporation, had applied most of the Bill of Rights to the states on a case-by-case basis. Incorporating the Second Amendment in McDonald made it legally enforceable against all levels of government.
“Now there is no argument that the Second Amendment doesn’t just restrain the federal government, it also restrains the state governments as well.”
– Attorney Victor
New York State Rifle & Pistol Association v. Bruen
In 2022, the Supreme Court issued a pivotal ruling. The issue at hand in Bruen was New York’s requirement that applicants demonstrate a “special need” beyond general self-defense to obtain a concealed carry permit.
The Court struck down this law, ruling that the Second Amendment extends beyond the home. Bruen replaced decades of legal precedent with a new standard for evaluating firearm restrictions – historical tradition. Rather than applying “levels of scrutiny,” as with other laws affecting constitutional rights, courts must now ask whether a given regulation is consistent with the nation’s historical tradition of firearms regulation.
Challenging Federal Firearm Restrictions
Attorney Victor observes that since Bruen, federal courts have experienced a rise in challenges to established gun control laws.
Felon-in-Possession:
Laws under 18 U.S.C. § 922(g) are now being challenged due to their lack of historical precedent. The Third Circuit recently ruled in Range v. Attorney General (2023) that the federal ban on firearm possession by certain non-violent felons was unconstitutional.
Domestic Violence Restraining Orders:
The Supreme Court has agreed to hear United States v. Rahimi, a case that questions whether temporary restraining orders can constitutionally remove someone’s Second Amendment rights. The outcome could significantly change how courts manage firearm restrictions in domestic situations.
Marijuana Use and Gun Ownership:
Federal law prohibits marijuana users from owning firearms. These restrictions are currently under judicial review, with critics claiming that no historical precedent justifies such a ban.
Ghost Guns and Serial Numbers:
Laws requiring serial numbers or prohibiting possession of defaced firearms are being scrutinized. Some courts find no comparable historical regulation to support the constitutionality of such laws.
The Constitution’s Structural Limits on Federal Power
Attorney Victor cites Judge Porter’s opinion in Range, where he opined that Congress may lack the constitutional authority to disarm individuals entirely. Judge Porter’s reasoning is based on Article I, Section 8 of the U.S. Constitution, which specifies the powers granted to Congress. He points out that this list does not include an explicit power to regulate or restrict individual firearm ownership.
Attorney Victor notes that Congress regulates laws by relying on the Commerce Clause, which allows the regulation of interstate commerce. He argues this power has been stretched far beyond its original intent.
“I believe the framers of the Constitution would be absolutely shocked if they knew how our courts have interpreted the Commerce Clause.”
– Attorney Victor
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About the Author
Criminal Defense Attorney Marc J. Victor
Criminal defense attorney and founder/owner of Attorneys For Freedom Law Firm, Marc J. Victor, specializes in major felony and self-defense cases. With experience as a legal commentator, he is also a long-time freedom activist and a former U.S. Marine Corps combat veteran of Operation Desert Storm.
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