I didn’t really follow the Supreme Court case of New York State Rifle & Pistol Association, Inc. v. Bruen, but the 2022 case was settled in favor of less restrictive gun laws—and by a vote of 6-3 (ruling here), with the dissenters being Breyer, Sotomayor, and Kagan. Here’s the Wikipedia summary that brought me up to speed:
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022), abbreviated NYSRPA v. Bruen and also known as NYSRPA II or Bruen to distinguish it from the 2020 case, is a landmark decision of the United States Supreme Court related to the Second Amendment to the United States Constitution. The case concerned the constitutionality of the 1911 Sullivan Act, a New York State law requiring applicants for an unrestricted license to carry a concealed pistol on their person to show “proper cause”, or a special need distinguishable from the general public, in their application.
In a 6–3 decision, the majority ruled that New York’s law was unconstitutional, and ruled that the ability to carry a pistol in public was a constitutional right under the Second Amendment. The majority ruled that states are allowed to enforce “shall-issue” permitting, where applicants for concealed carry permits must satisfy certain objective criteria, such as passing a background check, but that “may-issue” systems that utilize “arbitrary” evaluations of need made by local authorities are unconstitutional.
Clarence Thomas wrote the majority opinion, which rested a semi-“originalist” decision that the Sullivan Act violated on the Second and Fourteenth Amendments. First, the Amendments:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Relevant bits of the Fourteenth (section 1):
… No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Thomas interpreted these in two ways. The Second Amendment allows people to keep and bear arms, and the Fourteenth Amendment says that states can’t infringe on the Constitutional right to do so, i.e., it can’t make unreasonably restrictive gun laws. At least that’s what I get from this part of Thomas’s decision in the case.
The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.
Steven Lubet, the Williams Memorial Professor Emeritus and Director Emeritus, Bartlit Center for Trial Advocacy at Northwestern University’s School of Law, has a new article in The Hill about this decision, which he claims is promoting a “homicide pact”. Click to read:
Thomas really does seem gun-crazy; as Lubet notes, he’s been pushing a decision like this for years. Here’s some of the fallout (quotes from Lubet indented):
It looks as though there will be no end to the fallout from Supreme Court Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen holding that gun control regulations are “presumptively” unconstitutional unless they are sufficiently “analogous” to a 19th century law. The Court’s requirement of a close historical comparator has turned out to be almost impossible to satisfy, causing lower courts to invalidate or question otherwise reasonable laws prohibiting the obliteration of guns’ serial numbers and firearm possession by convicted felons or domestic abusers.
Most recently, a judge held that the absence of a “historical tradition of sufficiently analogous regulations” limited New York’s ability to restrict bringing concealed weapons onto others’ private property.
Lubet brings up the issue of mass shootings, often with legally obtained guns, that now seem to happen a couple of times per week:
It did not have to be that way. In 2008, the Supreme Court held that the Second Amendment protects an “individual right” to possess firearms. Two years later, the Court made it clear that the right to “keep and bear arms for the purpose of self-defense” is applicable to the states as well as the federal government.
Those decisions still left the scope of the Second Amendment right to be determined. In other circumstances, even fundamental constitutional rights may be subject to valid limitations when the government can currently demonstrate a sufficiently “compelling interest” to survive “strict scrutiny.”
A similar approach to the Second Amendment would have allowed lower courts to at least consider the value of existing firearms laws in relation to the constraints they impose on gun owners. But even that modest evaluation has been foreclosed by the Supreme Court’s command, as one judge put it, “that a gun regulation’s constitutionality hinge solely on the historical inquiry [as the] only consideration.”
The Court’s embrace of an exclusively historical method of constitutional review represented an ideological triumph for Justice Thomas, who had been pushing for it in a series of dissenting opinions for years.
I’ve always disliked a hard-nosed kind of “originalism” as espoused by Scalia (and now by his right-wing pal Thomas), for times have changed so much since the late 18th century that it’s impossible to tell what those who wrote the Constitution and Bill of Rights would think about issues that didn’t exist then. For example, in 1995 Garry Wills made a convincing case (at least to me) that the Second Amendment was indeed there to allow militias but not private citizens like Lauren Boebert to pack heat in public, much less pack it concealed and without much scrutiny for a license.
Yes, cases have to be interpreted in light of the Constitution, but when cases arise that can’t be judged using those old standards, one has to rely on rationality and on more recent thinking. Because Thomas won’t do that, he has indeed signed onto a “homicide pact.” Lubet:
Thomas has ultimately succeeded at a long game, but his victory comes at a severe cost. Under Bruen’s holding, a gun regulation must be invalidated unless a court can locate “a well-established and representative historical analogue” dating to the 19th century. Reasoning from a silent record is perverse. The absence of an historical counterpart does not mean that a particular firearm limitation would have been considered unconstitutional by the framers, but only that they found it unnecessary, if they thought of it at all.
One judge has already ruled that domestic abusers cannot be prohibited from gun possession because there were no such laws in an age when domestic battery was regarded as an unprosecutable family matter. And high-capacity magazines were unknown, and would have been thought impossible, in the era of muzzle-loading muskets.
There is no logical, sensible or moral reason to confine today’s gun laws to the provisions favored by 19th century property owners, other than a dogmatic commitment to so-called originalism, no matter how much carnage follows. In 1949, Justice Robert Jackson famously cautioned, “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Justice Thomas has at last assembled a majority that now appears bent on turning the Second Amendment into a homicide pact.
I realize, of course, that the brief of the Supreme Court is to see if a recent law follows the Supreme Law—the stipulations of our Constitution and Bill of Rights. What I don’t know is how the Supreme Court should rule when there’s an issue (like abortion) that wasn’t envisioned by the Founders. Usually they make in their decision on some trumped-up Constitutional issue like “right to privacy”. But for me, if the Second Amendment says the right to bear arms is there to allow a “well regulated militia,” then the reason for having guns is therefor all to see. And I know that Lauren Boebert is not a militia.