Is Body Armor Protected By The Second Amendment?

Existing California law makes it a felony for a convicted violent felon to purchase, own, or possess body armor. A new bill before the California Assembly would change this so as to make it a felony to commit a violent felony with a firearm while also wearing body armor. Unfortunately, the California Assembly would also make it a misdemeanor for anyone to purchase or possess body armor as well to sell it or deliver it. AB-92 Body armor: prohibition does make exceptions for people in certain professions such as law enforcement, the military, building inspectors, and security guards. However, the average homeowner or non-exempt business owner who wants such protection is out of luck.

The sponsor of AB-92, Rep. Damon Connolly (D-San Rafael), made this claim in support of the bill.

“Simply put, the widespread availability of military-grade body armor helps mass shooters and criminals kill more people,” Connolly said in a statement. “It is clear that the sale of body armor has empowered violent criminals, including mass shooters, to harm, kill, and prolong their rampages. This ongoing and unnecessary epidemic of violence must be stopped and AB 92 will help protect innocent bystanders and our peace officers.”

I was alerted to this new bill by a blog post I was sent from Spartan Armor Systems. I agree with the author of this post that such a bill would not make the average public safer. What really caught my eye in this post was the claim that such a ban would be unconstitutional. That spurred some research on my part.

The Second Amendment says, in part, “the right of the people to keep and bear arms, shall not be infringed.” Justice Scalia in DC v Heller went to great lengths in his opinion to show that “the people” was much more than merely the militia. He said the strong presumption was that the Second Amendment was a right that is “exercised individually and belongs to all Americans.” Thus, it should be assumed that any law which restricts possession of an item to a select class of individuals is suspect.

But would body armor be considered “arms” in the meaning of the word when the constitution was ratified?

Spartan Armor Systems Concealable IIIA Certified Wraparound Bulletproof Vest

The answer is yes. Justice Scalia helpfully points out a couple of early definitions of arms as it would have been understood by James Madison and the other architects of the Constitution.

First, from Dr. Samuel Johnson in his Dictionary of the English Language, 1755, (online edition):

Arms. n.s.without the singular number. [arma, Lat.]

1. Weapons of offence, or armour of defence. (emphasis added)

Second, from Timothy Cunningham in his A New and Complete Law Dictionary, 1764:

Armour or Arms, (Arma) In the understanding of law, are extended to anything that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another. (emphasis added)

In both cases, arms were understood to be more than weapons of offense such as a sword or a musket. Arms could also be a means of defense that was meant to be worn. Thus, a suit of armor or even a chain mail vest would have been understood to be arms at the time of the ratification of the Second Amendment.

From Wikimedia Commons

If one applies the newer standard of text, history, and tradition as expressed by Justice Thomas in NYSRPA v. Bruen, it seems obvious to me that body armor would be a constitutionally protected “arm” that one could keep (possess) and bear (wear).

One would hope that wisdom might prevail in the California Assembly but that often is fleeting.

US V. Quiroz – §922 (N) Held Unconstitutional (Updated)

Jose Gomez Quiroz was indicted in a Texas state court for burglary and later indicted for jumping bail. Both are felonies under Texas state law. While on the lam, Quiroz sought to buy a .22LR pistol from a dealer and answered “no” on the Form 4473 when asked if he was under indictment for a felony. He got a delayed (but not denied) response and subsequently took possession a week later. Then, the NICS System notified the BATFE of Quiroz’s transaction. He was charged with lying on the Form 4473 (18 USC §922(a)(6)) and illegal receipt of a firearm by a person under indictment (18 USC §922(n)). A Federal jury found him guilty on both charges. A week later, Quiroz moved to set aside the conviction under Rule 29 of the Federal Rules of Criminal Procedure and asked the court to reconsider in light of Bruen.

US District Court Judge David Counts of the Western District of Texas issued his decision yesterday and found §922(n) facially unconstitutional. Moreover, since §922(n) was found unconstitutional, Quiroz’s lie on the Form 4473 was immaterial. The US Attorney is already appealing the decision to the Fifth Circuit Court of Appeals.

The media is making a big deal over the fact that Judge Counts was appointed by President Trump. What they fail to say is that Counts was originally nominated for the position by President Barack Obama and that the clock ran out before he could be confirmed by the Senate. Prior to the nomination by President Obama, Counts served as a Magistrate Judge in the Western District and was the State Judge Advocate for the Texas National Guard where he was a Colonel.

The expansion of civil rights has often come in cases with less than desirable defendants. Witness the expansion of rights thanks to Clarence Earl Gideon, a drifter, and Ernesto Miranda, a kidnapper and rapist, whose cases established the right to counsel and the right to a warning against self-incrimination respectively.

Now it is time to examine the decision in detail. It starts out by saying the court is dealing with three things: the known knowns, the known unknowns, and the unknown unknowns. The known knowns are that the defendant did buy a gun while under indictment and that he asked the court to reconsider the conviction in like of the Bruen decision. The known unknown was whether the current law on firearms purchases by those indicted for a felony aligned with the historical tradition of firearms regulation. Finally, the unknown unknown is the constitutionality of firearms regulation in a post-Bruen world. Judge Counts then methodically works his way through these issues.

First, did Quiroz’s motion for reconsideration under Rule 29 meet the legal standard? Looking at 5th Circuit precedent, a Rule 29 challenge is appropriate when there is “an intervening change in the controlling law”. Thus, because Bruen changed the framework with which to analyze firearms regulations under the Second Amendment, it met the standard for reconsideration.

Next, does the plain text of the Second Amendment cover Quiroz’s conduct in purchasing a pistol while under indictment? §922 (N) states that it is unlawful to “receive” a firearm while under indictment. Judge Counts says that the government has misread Bruen and lumped possession in with the historical justification for preventing it while under indictment. The government argued that the Second Amendment only covers possession and carrying with everything else is outside this. Judge Counts disagreed saying that you cannot possess something without first receiving something which is what the law states. Therefore possession is covered by the plain text of the Second Amendment. The question remained whether there was historical justification for excluding those under indictment from possession of a firearm.

The Federal Firearms Act of 1938 was the first federal attempt to regulated possession by a felon or those under indictment. It only applied to those under Federal indictment and “crimes of violence.” Congress implemented this law to deal with the motor bandits of the ’30s such as Bonnie and Clyde. Indictments in state courts were not added to Federal law until the Gun Control Act of 1968. The current version of §922 (N) was codified in FOPA 1986. The government argued that felon in possession laws were roughly the same as that when under indictment. Judge Counts disagreed and noted they lacked historical analysis going back to the enactment of the Second Amendment. He noted that the colonies and later the states generally refrained from disarming its citizens. He says the government has failed to make the case that long-standing historical precedent prevents those under indictment from possessing firearms.

Judge Counts looked at other rights of “the people”. He found that those who had been convicted or were “violent actors” had been excluded from “the rights of the people.” However, he did not find similar exclusions for those under indictment. He then noted that grand jury proceedings were not adversarial and rules of evidence don’t apply to them. Further, you can be indicted in a state without being indicted by a grand jury. Other laws that disarmed people were aimed at minorities.

Judge Counts then concludes:

The Second Amendment is not a “second class right.” No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition. The Government does not meet that burden.

Although not exhaustive, the Court’s historical survey finds little evidence that § 922(n)—which prohibits those under felony indictment from obtaining a firearm—aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutional.

In coming to this conclusion, Judge Counts said that the new framework under Bruen creates unknown unknowns which raised many questions regarding balancing societal costs and benefits. He didn’t know the answers but he said he must “faithfully follow Bruen’s framework.”

UPDATE: Jake Fogelman at The Reload has a follow-up on this ruling that has comments from law professors at Duke and George Mason. Both think the 5th Circuit Court of Appeals as well as those of other circuits will “moderate some early decisions by lower courts as Second Amendment jurisprudence matures after Bruen.” Frankly, I hope they are mistaken.

Ten Days Of Freedom In New York City

If you are a gun owner in New York City and you want a carry permit, you have 10 days under an emergency rule adopted Friday by the NYPD to apply before the onerous New York State rules apply. The rule (see below) gives those with a pending application guidance as well as new applicants. Even more importantly, it applies to anyone who applied for a permit within the last three years but was denied for failing to show “proper cause”. Those who were denied can reopen their applications without paying any additional fees.

Perhaps I am being optimistic but I see this as the New York City equivalent of “freedom week” in California when Judge Benitez ruled the ban on standard capacity mags unconstitutional.

According to the emergency rule, so long as an application is pending before September 1, 2022 when the New York State law goes into effect, the standards will be those in the emergency rule. This means no searching of your social media among other things.

Here are the key items in the emergency rule:

  • No letter of necessity required
  • A statement saying you have read and are familiar with the law regarding deadly force, carry requirements, and responsibilities of a handgun owner
  • A statement saying how you plan to store your handgun when not being carried
  • A statement saying you have or will get training

Contrast the above with news that the Sheriff’s Department of Orange County (NY) has stopped scheduling appointments for gun permit fingerprints and will stop all fingerprinting after August 31st. This is in response to the requirements that New York State has imposed for a permit beginning September 1st. According to the FAQ issued by the Sheriff’s Department, they are the only place you can get fingerprints taken for a permit. Reading between the lines, it appears that the sheriff is hoping an injunction will stay the new law.


“Massive Resistance” In Maryland

Many states were slow to respond to the Supreme Court’s decision in Brown v. Board of Education holding that segregation by race was unconstitutional. You had massive resistance to the Supreme Court’s ruling throughout the South and the border states. Politicians were often the ringleaders of this opposition and the most vocal.

You are now seeing a similar “massive resistance” on the part of anti-rights politicians in may-issue states after Bruen. While some states such as New York have adopted laws that will make the implementation of this ruling difficult to the point of follow-on lawsuits, on the face of it they are complying. Then there are politicians like Maryland Comptroller Peter Franchot (D-MD) who is one of the leading candidates for governor.

Franchot does not even camouflage the fact that he would ignore a Supreme Court ruling if elected. He reminds me of another Democrat politician – the late Sen. Harry Byrd (D-VA). It was Byrd who coined the phrase “massive resistance”. Taking Byrd’s famous statement and reworking it for Franchot would not be hard.

If we can organize the Southern States for massive resistance to this order, I think that in time the rest of the country will realize that racial integration is not going to be accepted in the South.

All you have to do is replace “Southern States” and “South” with “may-issue states” along with “racial integration” with “shall-issue carry” and you have it.

Regardless of whether Peter Franchot is elected governor of Maryland or one of the other candidates is elected, the Article I, Sec. 9 of the Maryland Constitution requires the winner to take an oath swearing to uphold the Constitution of the United States. From what Franchot is saying, he makes clear he would willfully violate his oath of office once elected.

I fail to see any difference between a Franchot and a Byrd when it comes to upholding the Constitution of the United States. He may just as well be saying, “Gun Control Now, Gun Control Tomorrow, Gun Control Forever.”

UPDATE: It appears that virtually all the Democrats running for governor of Maryland would ignore the US Constitution and Supreme Court rulings.

Tom Perez, Wes Moore, Ashwani Jain, Doug Gansler, John King, and Jon Baron have all issued statements critical of Gov. Larry Hogan (R-MD) for following the Supreme Court’s ruling in Bruen.

Updates On 2A Cases Before The Supreme Court

Today was the last day of the October Term of the Supreme Court. Justice Breyer retired effective 12 noon today and we now have Justice Ketanji Brown Jackson as the most junior Associate Justice. Replacing one liberal with another liberal will not change the Court. Unless I am mistaken, about the only thing that may change is that in cases where Justice Sotomayor was the sole dissenter she probably will now have a co-dissenter. I almost said co-conspirator. Oops.

The impact of NYSRYPA v. Bruen was felt today on a number of cases. Four cases were granted certiorari, the judgement of lower courts vacated, and were remanded to lower courts for reconsideration in light of the Bruen decision. (It is kind of weird that we now refer to this case by the loser’s name and not that of the winner.)

Two of the cases involved restrictions on magazine size. This included Association of New Jersey Rifle and Pistol Clubs et al v. Brunk et al which was remanded to the 3rd Circuit for reconsideration. This was both a Second Amendment and a Takings case. The other case is Duncan et al v. Bonta et al which was remanded to the 9th Circuit Court of Appeals. This case was originally a win in the 9th Circuit until it was reversed En Banc.

As would be expected, Young v. Hawaii, a carry case, is being remanded to the 9th Circuit for reconsideration. This case directly challenged the 9th Circuit’s ruling that there was no right to carry a firearm outside the home.

The fourth case is remanded to the 4th Circuit Court of Appeals and involved the State of Maryland’s ban on modern sporting rifles. Bianchi et al v. Frosh sought to determine whether they could be said to be “arms in common use” which I would argue that they are. This case was brought by the Firearms Policy Coalition among other. Congratulations to Adam Kraut who was one of the attorneys on this case.

In addition to these cases, both challenges to the bump-stock ban are still surviving. Neither have been granted certiorari nor have they been denied it. These cases are Aposhian v. Garland out of the 10th Circuit and Gun Owners of America et al v. Garland et al in the 6th Circuit. In another bump-stock case, the 5th Circuit issued an order vacating Cargill v. Garland et al and ordering an En Banc rehearing. They did this on June 23rd after the Bruen decision.

Finally, the Court ruled against the EPA in West Virginia et al v. EPA et al. This case involved the power of an agency to make rules. The Court said an agency must point out to where Congress gave them clear authorization to make rules. This is considered a “major questions” case which means courts should not defer to agency interpretation where there is “vast economic or political significance.” Applied to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, this could impact the forthcoming rule redefining a receiver and other things. I have only read the syllabus of this case so will have to dig deeper.

Every Picture Tells A Story, Post-Bruen

Rob Vance and I have been doing the Every Picture Tells A Story series for over ten years. It started when the 7th Circuit Court of Appeals forced the State of Illinois to adopt concealed carry. Fortunately, it ended up as shall-issue carry. It wasn’t perfect and still isn’t. However, it was better than the regimes in May-Issue states like New York, California, etc.

Now, with the Supreme Court’s ruling in NYSRPA v. Bruen which tossed the “good cause” requirement, the remaining May-Issue states will have to adapt their laws to comply. The attorney generals of both California and New Jersey have already issued directives saying that the “good cause” requirement is null and void. While I expect these states to react to this like the Southern states did to Brown v. Board of Education – that is “with all deliberate speed” – shall-issue and permitless carry will be the order of the day.

This is what the the US will look like at the beginning of 2023. The updated graphic by Rob is below. You will note that No-Issue and May-Issue has gone to zero.

I fully expect the current May-Issue states to adopt onerous and expensive training requirements, extended mental health checks that may include an evaluation by a psychologist or psychiatrist, liability insurance, marksmanship qualification standards, and the list goes on. This will be in addition to the cost of purchase permits for handguns which are quite expensive if you live in New York City. All of these requirements will lead to more litigation and more delays. If the lower courts abide by Justice Thomas’ opinion which throws out intermediate scrutiny, then these will be resolved in our favor. Indeed, if the more liberal judges applied the same standards that they used pre-Dobbs for abortion to carry, we’d have nationwide permitless carry.


It is highly unusual for the US Department of Justice to release a statement saying that they disagree with a US Supreme Court decision. Yet, that is exactly what Biden’s DOJ did yesterday after the Supreme Court issued its opinion in NYSRPA v. Bruen.

Bear in mind Justice Kavanaugh’s concurrence where he pointed out that 43 states already have shall issue concealed carry and would only impact the outliers. Moreover, 11 out of the top 15 US cities by population are in states with either shall-issue carry or permitless carry.

If the DOJ was intent on defending federal firearms laws as they state, then why has Hunter Biden not been charged for lying on the ATF Form 4473? Is this a case of laws for thee but not for me?

Do they mean to weaponize the FBI and especially the BATFE against gun owners, dealers, and manufacturers? Will they be working with less free states to slow walk this decision?

It is interesting that this statement is attributed to the DOJ while a similar statement on the overturning of Roe v. Wade is directly from Attorney General Merrick Garland.

H/T Cernovich

Oral Arguments In NYSRPA V. Bruen

Todd Vandermyde and I have had multiple conversations regarding the Supreme Court this last few months. Todd, for those that don’t know him, was the NRA’s lobbyist in Illinois for many years. He also coordinated with NRA-ILA on bringing cases at the state and Federal level against restrictions in the Prairie State. Don Moran, former president of the Illinois State Rifle Association, once told me that the reason Todd was successful in Springfield is that he knew the gun laws better than anyone and could quote any section of the laws verbatim at will.

Todd has been reading the tea leaves in NYSRPA v. Bruen from the oral arguments. He found some interesting things in them especially with regard to comments by Chief Justice John Roberts.

Todd lays out his thoughts in the YouTube below. While we are waiting for the decision, this gives some things to think about and to look for in the final decision.

NYPD Signals They Expect To Lose Bruen

The New York Police Department is looking to hire 73 part-time investigators whose job includes doing background checks for handgun licenses.

From Rob Romano on Twitter:

Among the job duties the NYPD has for these new hires is this:

Conducting interviews and investigations of candidates applying for handgun licenses; process various applications for carrying handguns; determine and ensure applicant meets requirements for license requested; fingerprint applicant using LIVESCAN system; research various databases and contact references to substantiate information submitted by applicant; and notify applicant of approval or appeal process for denial of handgun permit.

While you can never predict what the Supreme Court will do, it seems to me that the NYPD is signaling that they expect the court to rule against New York in NYSRPA v. Bruen. That case is a challenge to the state’s denial of carry permits for the purpose of self-defense.

In this instance, I really hope that the NYPD is correct in their assessment.

Carry Case Oral Arguments Today

The oral arguments in NYSRPA v Bruen will start this morning at 10am Eastern. If you can set aside 70 minutes of your morning, I think it will be well worth it. Remember this is the first major Second Amendment case that the SCOTUS has taken since McDonald v. Chicago in 2010.

I suggest having a nice relaxing place to listen as undoubtedly the attorneys for the State of New York as well as the Biden DOJ will make arguments that we peons don’t have any right to carry outside the home.

Here is what my view will be like.

If you go to and scroll down to the bottom of the landing page, you will see a button marked “live” that allows you to follow along in real time as the audio is livestreamed. You can also follow along at C-Span here.

Paul Clement, former US Solicitor General, will argue the case for the New York State Rifle and Pistol Association. He will have 35 minutes. Opposing him will be Barbara Underwood, the Solicitor General of NY, who will have 20 minutes to defend New York’s good cause requirement. Another 15 minutes is set aside for Brian Fletcher, Principal Deputy Solicitor General, who will argue in favor of keeping New York’s requirement. A few votes here, a few votes there, and it would the US would be arguing in favor of the NYSRPA.

In the past, I would not have added this link to TTAG for post-argument analysis. However, Robert Farago is long gone and they do have an all-star cast. It will feature Joseph Greenlee of the Firearms Policy Coalition, David Kopel of the Independence Institute, Eugene Volokh of UCLA, and Cody Wisniewski of the Mountain States Legal Foundation’s Center to Keep and Bear Arms.

It is important to bear in mind that we probably won’t see a decision until just before this October Term closes in late June 2022. Also, a win won’t change things immediately in places like New Jersey, Hawaii, and the like as it will take more litigation. However, a win would provide the basis for challenging those states’ restrictive carry laws.