Last week saw some significant decisions in cases involving guns. Closest to home, the 5th Circuit, an appeals court considered by many as conservative compared to other districts, ruled that a marijuana conviction should not be a bar to gun possession–a big change compared to rules on the books.
Also: the U.S. Supreme Court, which has been ruling in favor of gun rights in recent years surprised many last week by allowing regulation on so-called “ghost guns” to remain in place.
Eric Ruben, associate professor of law at Southern Methodist University, spoke with the Standard about where we stand with gun laws now, and what changes may be ahead. Listen to the interview above or read the transcript below.
This transcript has been edited lightly for clarity:
Texas Standard: Last week, the Supreme Court reinstated that Biden administration ATF rule regulating ghost gun kits. What are ghost gun kits?
Eric Ruben: So those guns are firearms that are assembled from kits that you can order online and have shipped to your house. They usually involve just the use of ordinary tools that somebody might have in their garage unlike traditional gun smithing that required a great deal of skill. And importantly, they traditionally haven’t contained serial numbers and they’re sold without background checks.
So the ATF stepped in back in 2022 and issued new rules trying to loop in ghost guns so that they were not exempt, apparently, because they’ve been popping up in a lot of crimes a lot more frequently of late.
Yeah, there’s an exponential increase in the number of ghost guns that have been recovered from crime scenes in recent years. In fact, between 2016 and 2021, 45,000 were recovered in crime scenes.
A lower court said that the new regulation on ghost guns was unconstitutional. Supreme Court said “no, it needs to remain in place.” What was the logic there?
So the Supreme Court didn’t provide any logic in its decision. But it was interesting because while this court has been known to expand gun rights in recent year years, Chief Justice John Roberts and Justice Barrett sided with the three liberal justices and said that the Biden administration’s regulation can stay in place pending the appeal.
That Fifth Circuit Court of Appeals decision striking down a ban on gun possession by illegal drug users… Can you say a little bit more about why the Fifth Circuit might have gone the direction it did?
Well, after the Bruen decision came down in 2022 from the Supreme Court, there’s been a lot of discord in the lower courts. They’re reaching different outcomes on the same issue. In this case, just exemplifies that Fifth Circuit said that it’s unconstitutional under the Second Amendment to ban somebody who is a frequent user of marijuana from possessing a firearm.
Other courts have reached the opposite conclusion. And a lot of the uncertainty is rooted in the fact that the Supreme Court says that courts now have to analogize modern regulations that are addressing modern problems to historical gun laws from the late 1700s or the 1800s and there just weren’t close analogies to this sort of thing back then.
You mentioned the Bruen decision – that’s where the court struck down that century-old public carry licensing law in New York City that got a lot of attention. A lot of a lot of courts right now are really scratching their heads over what the implications are of like a historic understanding. How far back, what are the benchmarks, what are the tests for determining what that is and whether or not they’ll pass muster on appeal. Where do we stand with gun laws? And can you spot a kind of trend that’s happening right now?
I think there’s just massive confusion right now about what the Second Amendment means. And on the policy level, what is the best way to keep people safe from gun violence that claims more and more lives every single year?
One of the things that I’m going to be looking at is that the Supreme Court took another Second Amendment case out of Texas, actually a case called Rahimi, that deals with whether or not you can constitutionally disarm somebody subject to a domestic violence restraining order. And I think that me and many others, I will be looking to see whether or not the Supreme Court provides some clarity on this new historical test that it set down in Maryland.