The State of the Second Amendment 2022

2022 has been a big year for Second Amendment rights. Despite facing a hostile President and Congress, 2A advocates mostly held the line and scored several major wins this year. Some perceived losses may yet turn out to be significant victories over time as gun control activists and politicians stick their necks out too far. So, as 2022 fades in the rear-view mirror, let’s look back at those wins and losses, and talk about where we’re heading from here.

Clear Second Amendment Wins

Let’s start with the good news. We won more than we lost in 2022, and the biggest win literally affects everything else in this article. So, let’s start there.

New York State Rifle & Pistol Association vs. Bruen

If you’ve been following along, you’ve seen us write extensively about the Supreme Court’s Bruen Decision. If not, here’s the short version: The Court ruled in June that New York’s draconian concealed carry laws were unconstitutional. In the ruling’s majority opinion, Justice Clarence Thomas declared that the Second Amendment is not a “second-class right.” Therefore, it cannot be subjected to the balancing often applied by judges when weighing gun laws’ constitutionality.

That balancing was part of a two-step approach to gun laws that not only looked at the Second Amendment’s text, but also considered the government’s responsibility to provide for public safety. Never mind that most gun laws only apply to responsible gun owners. Thomas wrote that such an approach is “one step too many” and that any gun law not addressed in the Second Amendment’s clear text must adhere to the text and history of gun laws as they existed when the Bill of Rights was adopted in 1791.

Bruen was built on the shoulders of the earlier Heller and McDonald decisions and may yet prove to be the tsunami that swamps most American gun control laws. Numerous lawsuits are being pursued throughout the country and gun controllers are on the defensive. More on that below. Bruen has literally changed the game and puts 2A advocates on offense for the first time in a while.

West Virginia vs. EPA

This Supreme Court case had nothing to do with gun laws, but it may help reign in the Bureau of Alcohol, Tobacco, Firearms, & Explosives (ATF) and the FBI when it comes to making rules that carry the force of federal law.

It seems that West Virginia didn’t like the EPA making sweeping rules that also equal federal law and they sued to stop it. The Supreme Court sided with the Mountain State and said that federal agencies cannot arbitrarily make rules that carry economic or political significance. Congress is supposed to do that.

So, this case will likely serve as part of the basis for the lawsuits set to challenge the upcoming ATF pistol brace rule, as well as other ATF and FBI overreaches. We’ll keep you up to date on how that goes.

Constitutional Carry Expands

2022 saw the Constitutional Carry movement expand to fully 50% of these United States. Florida seems set to be number 26, providing even more momentum. Of course, gun control advocates have predicted blood in the streets each time, as they always do. But it hasn’t happened, and it won’t happen. Nationwide, responsible citizens who carry commit crimes at a lower rate than police officers. We hope this trend continues.

No Federal “Assault Weapons” Ban

Despite the political theater in the House of Representatives, and it was indeed dramatic, the Senate failed to muster support for HR 1808, the “Assault Weapons” ban. Even though gun control luminaries like Bill Clinton urged its passage, Senate Democrats couldn’t get within 20 votes of what was needed to pass it.

President Joe Biden will likely continue his droning about “assault weapons,” but there appears to be no appetite in the Senate, especially with swing votes Kristen Sinema of Arizona and West Virginia’s Joe Manchin up for reelection in two years in very pro-gun states. HR 1808 is officially dead. Hallelujah!

Firearms Sales Remain Strong

The anti-gun rhetoric from the White House and the media has done nothing to dampen Americans’ appetite for buying guns. Black Friday of 2022 was the third highest on record for NICS checks, and a large percentage of purchases are by first-time gun buyers. Let’s welcome them into our community, regardless of political or other differences. The Second Amendment is for everyone, and it will take all of us to protect it.

Second Amendment Losses

2022 did witness a couple of losses for the good guys. But only a couple, and those may turn out alright in the end.

The Bi-Partisan “Safer Communities Act”

This bill passed the Senate after Texas Senator John Cornyn crossed the aisle to negotiate away some Constitutional rights in the name of “safety.” The law implemented three new programs:

• Funding for states to enact Red Flag laws to take away guns from people deemed a danger to themselves or others. Red Flag laws, as we have noted, are dubious at best. They bypass due process and force the defendant to prove his innocence, instead of being innocent until proven guilty. And if the person is so dangerous, why leave them on the street? Red Flags, as with all gun laws, only address the firearm, not the person wielding it. In this case, the law supposedly does that before the firearm is even used. Very problematic. Not to mention the fact that such laws are ripe for abuse. Finally, many murderers who should theoretically be stopped by Red Flags are not because law enforcement agencies have failed to follow up.

• Closing the so-called “boyfriend loophole.” This has long been a staple of the anti-gun wish list. Convicted spousal abusers are already banned from owning a firearm under federal law. The law for non-marital abuse is fuzzier. Restraining orders are easy to get and often hinge on which partner files first. The bar for issuance is relatively low, and violating a restraining order is usually a misdemeanor. This law bars firearms ownership to persons subject to a restraining order or otherwise convicted of non-marital abuse, even if that person is not by definition a felon. Look, I get it. Abuse is wrong, no matter what. But taking away a Constitutionally protected right is a big deal. Opening the door for a misdemeanor qualification sets a dangerous precedent.

• Enhanced background checks for persons aged 18-20. This change is now reflected in the revised Form 4473 just introduced by the ATF. Basically, the NICS background check system now has extra time to check juvenile records if necessary. The FBI also reports all delays and denials to local law enforcement, including the applicant’s home address. Have a common name that always gets you delayed? Well, your local police or sheriff’s department now gets a heads-up every time you buy a gun, no matter what your age.

This is the law that Joe Biden is referencing when he brags about passing “the most significant gun control in 30 years.”

New Credit Card Merchant Codes for Gun Stores

This one comes from the private sector, so there may not be much we can do about it. Priscilla Sims Brown, CEO of Amalgamated Bank, lobbied and persuaded the body governing credit card companies to implement a new merchant code specific to gun store purchases. She claims it will help stop gun trafficking. Like criminals regularly buy their stuff from gun stores.

Never mind that gun tracking schemes never stop crimes and have rarely aided in solving them. Canada’s expensive gun-tracking program was scrapped for that very reason. Many fear that this code will lead to credit card companies denying purchases at gun stores. Some have reported it already happening, though those reports have not been verified.

To Be Determined

Many of these may seem like losses at first glance. But I believe they represent opportunities for gun rights advocates. We know gun controllers will push as far as they can. The good thing about that is they often push too far, opening the door for the good guys to challenge them in court and creating legal precedents to curtail them in the future. That’s what happened with the Heller, McDonald, and Bruen Decisions.

State Gun Control

Gun control advocates have begun focusing on states. It’s easier for them to make headway on that level. But, despite the early returns, there’s a lot to like here, though it may take years to sort through.

We won’t dig into the details because we’ve done that elsewhere. But over-the-top gun control like Oregon’s recent Measure 114, New York and New Jersey’s obnoxious carry laws in response to Bruen, and numerous magazine bans are undergoing court challenges. We are already seeing preliminary restraining orders against these laws, and we should score some significant victories.

The states, of course, will appeal and obfuscate as long as possible, so it will take time. But Bruen has changed the game. Even state Constitutions are being cited against these laws, as in Oregon. Expect those states to change their Constitutions if they can, but, either way, the Second Amendment, supported by Bruen, trumps them all.

New Shipping Rules

Back in August, five Democrat Senators sent a letter to 28 shipping carriers, including FedEx and UPS, asking searching questions about how they ship legal firearms, parts, and accessories. Those Senators implied that these companies contribute to “gun violence” through their business activities.

It’s all ridiculous, of course. But FedEx and UPS have since responded by implementing new terms of service that essentially allow them to track all firearms shipments while requiring gun dealers to provide them with purchaser details upon request. They also say that information may be shared with federal agencies, even if sharing is against the law.

Montana Attorney General Austin Knudsen has launched an investigation into these practices, and it looks like he means business. Knudsen was joined by 17 other state attorneys general. We’ll keep you updated on how that shakes out.

The Centers for Disease Control Pulls a Fast One

The CDC commissioned a study over a decade ago regarding defensive gun use. The study was done by Florida State University criminologist Dr. Gary Kleck. The study found that Americans defend themselves with firearms as many as 2.5 million times per year. The results didn’t fit with the CDC’s desired outcome, nor that of the Obama Administration, so they were quietly forgotten, though the study remained on the CDC’s website.

Recently, gun control advocates from the Gun Violence Archive complained to the CDC that the study’s web presence interfered with their ability to push anti-gun measures. Certain members of the Biden Administration applied a little pressure on the Gun Violence Archive’s behalf, and voila! The study disappeared.

Gun rights groups immediately cried foul and have demanded the study be replaced. The Gun Violence Archive claimed the study was flawed, despite being conducted by a credentialed researcher. This from a group who almost single-handedly redefined “mass shooting” by including gang and criminal activity not counted by the FBI crime statistics. When you hear the media talk about hundreds of mass shootings every year, that’s their source. And it is certainly flawed.

We are awaiting the CDC’s response. Don’t be surprised if this one goes to court.

New ATF Rules

As mentioned earlier, the ATF loves to make new rules. That’s how the Biden Administration is getting some of its gun control since Congress hasn’t done it. One major rule dropped in 2022, with another expected any day, as of this writing.

The Frames and Receivers Rule targeted so-called “ghost guns.” Companies marketing 80 percent lower receivers looked to take a big hit. But, in a surprising move, these same companies appear to have been saved by a federal judge who said that removing the jig from the kit brings them into compliance. The jig is now sold separately. Even more surprising, the ATF accepted this rule, but has now dropped a surprise overnight rule change classifying all unfinished frames and receivers as firearms. this may have been in response to the ongoing lawsuit challenging the original rule. The plaintiffs have moved to have the entire rule vacated and enjoined and the ATF seems to be fighting back. we will stay on top of that one for you.

The Pistol Brace Rule is expected in January. We don’t have the particulars, but it looks like pistol braces will be classified as NFA items similar to short-barreled rifles and require a tax stamp. More details as they emerge. expect multiple lawsuits in response, especially considering one is already underway.

But soon-to-be House Judiciary Committee Chairman Jim Jordan (R-OH) has alerted the ATF that he intends to look into their rulemaking process. Jordan doesn’t like that ATF arbitrarily changes rules, potentially turning legal gun owners into felons. Only Congress has the power to make federal law, and Jordan may be asserting that right. We will keep you up to date on how that goes.

A Good Year for the Second Amendment

Overall, it’s been a very good year for gun rights. Bruen is proving to be the gift that keeps on giving. As it creates more precedent, the next few years could very likely be even better. Hardline gun control states are gyrating wildly trying to escape Bruen’s reach, but they are only making it worse for themselves as they infringe even more. Looking at you, New York and New Jersey.

The surging firearms sales trends, no doubt boosted by Joe Biden’s rhetoric, are good news as well. Bringing more gun owners into the fold will strengthen Second Amendment support and degrade gun controllers’ influence. It’s a fact that when people embrace the Second Amendment, they rarely go back.

But we must continue to do our part. Politicians are politicians. They will always seek to increase their own power at the people’s expense. Same with government bureaucrats like the ATF. Most issues generally have a 10-80-10 breakdown. 10% of people support it no matter what. Another 10% oppose it no matter what. The 80% in the middle are those who decide how it goes. We have to convince those folks, or most of them, that the Second Amendment is for all of us, whether we actively engage with it or not. The Second really does protect all the rest.