With the Michigan Supreme Court recently declining to hear a case involving firearms on the University of Michigan campus, it seems that two courts in the Great Lakes State are thumbing their noses at the 2022 U.S. Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen.
On October 18, the state Supreme Court chose to let stand a decision by the Michigan Court of Appeals, which ruled in the case Wade v. University of Michigan that the ban on firearms possession was constitutional under the Second Amendment.
In an analysis written for reason.com, Eugene Volokh, a Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford, explained how the Court of Appeals ignored the Bruen standards and judged the case on four factors it created itself. That decision prompted two judges on the court—Justice David Viviano and Justice Brian Zahra—to point out in their dissent the arguably improper procedures used.
“The Court of Appeals disregarded the analysis required by the United States Supreme Court for Second Amendment disputes and invented a confusing four-factor test that bears almost no resemblance to the Supreme Court’s test,” Justice Viviano wrote in the dissent.
Under the Bruen standard, when considering a Second Amendment case, courts must first consider whether the Second Amendment protects the conduct at issue. If it does, then the court must consider whether the government has demonstrated that the regulation is consistent with this nation’s historical tradition of firearms regulations.
But as Justice Viviano pointed out in the dissent, the appeals court decided to use four factors of its own in determining the constitutionality of the law. While the first was the same as in the Bruen standard, the second was anything but.
Viviano wrote of the second factor: “If the conduct at issue is presumptively protected, courts must then consider whether the regulation at issue involves a traditional “sensitive place.” If so, then it is settled that a prohibition on arms carrying is consistent with the Second Amendment.
Oops, hold on a minute! I certainly don’t remember that part in the Supreme Court’s Bruen ruling.
Justice Viviano wrote of the third factor used in the case: “If the regulation does not involve a traditional “sensitive place,” courts can use historical analogies to determine whether the regulation prohibits the carry of firearms in a new and analogous “sensitive place.” If the regulation involves a new “sensitive place,” then the regulation does not violate the Second Amendment.”
Again, that factor is not included in the Bruen ruling, thus is inappropriate to be used by a court when considering a Second Amendment case.
In his dissent, Justice Viviano then explained the fourth factor used by the appeals court.
“If the regulation does not involve a sensitive place, then courts must consider whether the government has demonstrated that the regulation is consistent with this Nation’s historical tradition of firearms regulations,” the factor stated. “This inquiry will often involve reasoning by analogy to consider whether regulations are relevantly similar under the Second Amendment. If the case involves “unprecedented societal concerns or dramatic technological changes,” then a “more nuanced approach” may be required.
Of course, none of that hogwash was included in the simple Bruen standard. Yet the Michigan Court of Appeals chose to ignore a critical ruling by the highest court in the land on how Second Amendment cases must be considered.
In the end, Justice Viviano wrote in his dissent that he can’t see how the ruling can be justified under the Bruen standard.
“It seems doubtful that after establishing a text-and-tradition approach to the Second Amendment, the Supreme Court would uphold total bans on firearms in locations that historically never had such prohibitions,” he concluded. “Indeed, such a regulation would not be supported by text or tradition, so what reasoning could support it? A rationale grounded in the pragmatic balancing of interests was rejected in Bruen, as discussed above. I therefore struggle to see how the Court of Appeals’ framework here, which eschews text and tradition altogether, can be justified under the Supreme Court’s precedent.”
“National divorce”
Nah, just vote for Fink and O’Grady to flip the court back to sanity. Well, what passes for sanity in MI’s gov’t.
“Sanity in MI’s gov’t.” What is that? There has been none since the Demo-rats gained control of our State.
“National divorce”
Is there a definitive document detailing what that looks like? How things work, after?
Sam,
Nope. We have EXACTLY the same assurances of our rectitude and likelihood of success as did T. Jefferson, J. Madison, et. al. This approach to dealing with a perceived (and IMHO a REAL) problem is that . . . rectitude and outcome ain’t guaranteed.
Sometimes, ya just gots to lay down yer money, and takes yer chances. Would a “post-boogaloo” Apocalypse be significantly worse than a Kamal-toe the Ho administration:?? My Magic Eight-Ball says “Nah!”.
That is not possible to ansewer. I don’t see a future where the Bill of Rights will be supported. Either by the governmnet. Nor by a large segment of the population.
A large segment of the population supported letting cities be burned to the ground. The killing of property owners where they stood. The police ordered to stand down. And do nothing.
Religious people ordered to not attend church services. And arrested if they tried to attend.
So no. I dont see a future where our Rights are protected. A least for those of us who care. Because the majority really don’t care.
And those of us who do care. We will not be forming lines to turn in our guns.
Like they did in the state of connecticut.
There are plenty of “sheep” in this counrty. And there are also many “wolves” in this country too. We hid in plain sight.
btw
The libertarians liberals and the Left have done an outstanding job of demonizing the police. Most democrat run cities, big or small are seriously short the number of trained cops they need.
So what do you think will happen??? When San Francisco or Oak Land
have no police force to speak of. Or Portland? Or Seattle?
Not having a reliable police force does make enforcing gun control much more difficult. It makes enforcing dtug laws difficult.
But it also does make having a “national divorce” so much easier.
I bet that is something the cop haters never ever thought about.
“Unleash the dogs of (civil) war.”
“Unleash the dogs of (civil) war.”
Good generals study tactics; great generals study logistics. The founders were contiguous, and supplies and communications were not interrupted by colonies inbetween. The current map shows that 1) logistics and comms would not be so advantageous, and 2) organizing an effective military and rump govt would be near impossible, and 3) the boogies have no plan for all the complications in the aftermath, but seem convinced the old nation will simply be run by the revolutionaries, the physical plant of the nation operational as prior to the divorce.
An unmitigated shit show is the most likely result from any current era civil war. Disruptions to utilities and supply distribution would kill more people than all of our wars combined. Wargaming that scenario was flat out depressing.
As a retired Infantry battalion commander, I agree about the logistics. I can’t see another civil war, at least, I don’t want to think I can, but much would be determined by the military, active, reserve and Guard. I would hate to think that the current “woke” military has been made so just in case it has to defend a wrongful government! At 80, I may not be around to see if it occurs, but I would imagine I would be on the “do not resuscitate “ list…Semper fi
“I therefore struggle to see how the Court of Appeals’ framework here, which eschews text and tradition altogether, can be justified under the Supreme Court’s precedent.”
Justice Viviano, respectfully, you left out consideration of the fifth test which is “if the state doesn’t like guns, we can make up any test we want.” which apparently only exists in their minds view of Bruen.
All this courtroom lip service on the behalf of an agenda History Confirms is Rooted in Racism and Genocide called Gun Control…DESPICABLE.
Fed Gov Gaslighting: FBI Quietly Revises Violent Crime Stats Upward.
h ttps://www.shootingnewsweekly.com/crime-and-punishment/fed-gov-gaslighting-fbi-quietly-revises-crime-stats-upward/
sample quotes:
“… Stealth Edit: FBI Quietly Revises Violent Crime Stats, by Dr. John Lott of the Crime Prevention Research Center, describes how in 2023, the FBI reported that for 2022, ‘the nation’s violent crime rate fell by 2.1%. This quickly became, and remains, a Democratic Party talking point to counter Donald Trump’s claims of soaring crime.’ Subsequently, though, the FBI ‘quietly revised those numbers, releasing new data that shows violent crime increased in 2022 by 4.5%… The Bureau –which has been at the center of partisan storms –made no mention of these revisions in its September 2024 press release.’ The 6.6% change becomes apparent only after ‘downloading the FBI’s new crime data and comparing it to the file released last year.’ …
‘Viewed in light of the new revisions, though, the 2022 crime data shows a shocking “80,029 more violent crimes than in 2021. There were an additional 1,699 murders, 7,780 rapes, 33,459 robberies, and 37,091 aggravated assaults.”
This corresponds with the latest (2023) National Crime Victimization Survey findings on violent crime trends published last month. The rate of violent crime victimizations had dropped from 21.0 per 1,000 population in 2019 to 16.4 in 2020, but has exceeded the 2020 rate in every year since: 2021 (16.5), 2022 (23.5) and 2023 (22.5) (these exclude homicides because the NCVS is based on interviews with victims).
RCI concludes that crime under the current administration is indeed setting records – just not the kind that the White House wants to take responsibility for. ‘While the FBI claims that serious violent crime has fallen by 5.8% since Biden took office, the NCVS numbers show that total violent crime has risen by 55.4% … The increases shown by the NCVS during the Biden-Harris administration are by far the largest percentage increases over any three years, slightly more than doubling the previous record.’ ”
(note: In short, once again the democrat party, Biden, Harris have been caught in yet another lie about the crime rate, and further endangered American citizens by their lies.)
The left would rather wipe their ‘pejorative’ nether region on the Bill of Rights.
Not the first case to do so, it won’t be the last. The only thing different is the undisguised rejection of Bruen, as the Hawaii Supreme Court did under a case construing state law. The Ninth circuit has had a case pending for months that raises a Bruen issue that it doesn’t seem to want to decide before the election, hoping I suppose for a reformulated court that will overrule Bruen.
2nd is getting a stack of those.
So, what is the expected “legal procedure” in this instance? Does the Supreme Court call the lower court and say, “Stop sucking”? Or, does some attorney have to file something? i.e. what happens next when a lower court ignores SCOTUS?
“…what happens next when a lower court ignores SCOTUS?”
Nothing; the dance goes on.
Sam,
And THAT is the problem with SCOTUS opinions – as Andrew Jackson is purported to have said “Justice Marshall has made his opinion; now let him enforce it.” The Leftist/fascists are all about lawfare; an unsuccessful foray to SCOTUS simply means “change a word or two in the statute, and we’ll litigate it again! That will eat up another 5 to 7 years, and maybe WE’LL control SCOTUS by then!!”
And this surprises you WHY, exactly???
“Of course, none of that hogwash was included in the simple Bruen standard.”
“Rahimi” established the historical analogs need not be essentially identical to text, history and tradition, but “analogs” can be “nuanced”. IMHO, the SC used “Rahimi” as a political move to ease, or even overturn, “Bruen”, in a move to protect the SC from attacks by Congress (court packing).
So, a lower court openly defies a legal precedent. Now what? Is anyone who is being denied justice getting compensation? Is anyone being disciplined for judicial stupidity?
Abide by the Constitution or have all Federal services and funding cut. That’s how it should be.
Better yet, arrest the lawmakers in any instances where Constitutional rights of the people are breached willfully. That should put a stop to that sort of hogwash.
The Supreme Court has no enforcement arm.
The state of New York, Hawaii, and now Michigan are in open rebellion against the Supreme Court.
Unless the federal government brings in federal troops to enforce a Supreme Court ruling, nothing can be done.
Everything depends on who is the president in this situation.
FDR sent in the 101 Airborne and Federalized the Arkansas National Guard to enforce Brown vs. Board of Education.
Andrew Jackson did nothing to enforce Worcestershire vs. Georgia and the Federal government forced the Cherokee Indians onto the trail of tears.