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Anonymous ID: 01e7d9 July 28, 2022, 4:43 a.m. No.16903616   🗄️.is đź”—kun   >>0397

>>16901485

 

COHEN: Consti­tu­tional experts who follow the courts always seem to have an eye on three or four cases that are begin­ning to wend their way through state court systems or the federal system. What three or four Second Amend­ment cases are you watch­ing as they begin their jour­neys to the higher courts? Are we likely to see a chal­lenge to these new open carry laws that so many states have adop­ted over the past few years? Are there other cases you see out there that could give this Court the oppor­tun­ity to expand gun rights and limit gun regu­la­tion? What should we be watch­ing for?

 

MILLER: There’s a host of unsettled ques­tions that I’m keep­ing my eye on. The lower federal courts right now are wrest­ling with the issue of what counts as an “arm” for purposes of the Second Amend­ment: Does it include large capa­city magazines? Does it include AR-15s and other rifles modeled on milit­ary weapons? In Michigan, the state supreme court is set to decide whether the Univer­sity of Michigan and other state univer­sit­ies can keep fire­arms off their campuses or whether that viol­ates federal or state consti­tu­tional law. Then there’s the flood of litig­a­tion that will follow the Bruen case. I guar­an­tee that gun rights advoc­ates have already got plaintiffs engaged and complaints draf­ted and that there will be multiple lawsuits filed as soon as the Court hands down Bruen.

 

But what I’m really focused on is the sleeper issue in Bruen that will determ­ine just how radical a change we’re in for. Right now, the lower courts are using a two-step frame­work for decid­ing Second Amend­ment cases. The first step is a histor­ical approach; the second step allows the govern­ment to justify its regu­la­tion through social science data or other kinds of empir­ical tools. But one issue in Bruen is whether that second step is permiss­ible or whether all Second Amend­ment ques­tions may be answered only by refer­ence to what is permit­ted by “text, history, and tradi­tion.”

 

If the Court adopts a “text, history, and tradi­tion”-only approach to Second Amend­ment ques­tions, then suddenly everything we thought we knew about gun regu­la­tion

— that you can keep those convicted of domestic viol­ence from possess­ing fire­arms; that you can keep loaded guns out of the cabins of commer­cial airliners

— all that is up for grabs.

 

Disclos­ure: Miller was among a group of attor­neys who filed a friend-of-the-court brief on behalf of neither party in the Bruen case, urging the Supreme Court not to apply a text, history, and tradi­tion-only approach. He also filed a friend-of-the-court brief in the pending Michigan Supreme Court case.

 

This inter­view has been edited for length and clar­ity.

 

This discus­sion is one of several in a Bren­nan Center series on the Bill of Rights. The inter­view with Orin Kerr about the Fourth Amend­ment is here, the inter­view with David Carroll about the Sixth Amend­ment is here, and the inter­view with Carol Steiker on the Eighth Amend­ment is here.

 

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