“The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms’ content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.”
“Although the court did not identify which of the three judges dissented, it’s not hard to guess how the votes broke down. The panel includes Judge Leslie Southwick, a relatively moderate conservative appointed by President George W. Bush, as well as two notoriously right-wing judges.
Judge Edith Jones is a former general counsel to the Republican Party of Texas who was appointed by President Ronald Reagan when she was just 35 years old. Since then, she’s developed a reputation as an especially caustic conservative — Jones once told a liberal colleague to “shut up” during a court hearing, and she joined an opinion arguing that a man should be executed despite the fact that his lawyer slept through much of his trial.
The third judge, Andy Oldham, is a young Trump appointee who clerked for Justice Samuel Alito. Among other things, Oldham is the author of a Fifth Circuit opinion permitting a Trump-appointed district judge to seize control of much of the nation’s policy governing the US-Mexico border.
It is likely, but not entirely certain, that Jones and Oldham are right-wing outliers even when compared to the median justice on the Supreme Court. In 2021, Justice Clarence Thomas published an opinion expressing sympathy for the “common carrier” theory Texas relies on in NetChoice. But that opinion was joined by no other justice.
In any event, given the enormous disruption the Fifth Circuit’s NetChoice decision is likely to create for social media companies, it is likely that they will ask the Supreme Court to intervene very soon. We should know in very short order, in other words, whether the Supreme Court intends to write social media out of the First Amendment.”
“In 2008, the Supreme Court effectively wrote NRA CEO Wayne LaPierre’s “good guy with a gun” theory into the Constitution. The Court’s 5-4 decision in District of Columbia v. Heller (2008) was the first Supreme Court decision in American history to hold that the Second Amendment protects an individual right to possess a firearm. But it also went much further than that.
Heller held that one of the primary purposes of the Second Amendment is to protect the right of individuals — good guys with a gun, in LaPierre’s framework — to use firearms to stop bad guys with guns. As Justice Antonin Scalia wrote in Heller, an “inherent right of self-defense has been central to the Second Amendment right.”
As a matter of textual interpretation, this holding makes no sense. The Second Amendment provides that “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.”
We don’t need to guess why the Second Amendment protects a right to firearms because it is right there in the Constitution. The Second Amendment’s purpose is to preserve “a well-regulated Militia,” not to allow individuals to use their weapons for personal self-defense.
For many years, the Supreme Court took the first 13 words of the Second Amendment seriously. As the Court said in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias. And thus the amendment must be “interpreted and applied with that end in view.” Heller abandoned that approach.
Heller also reached another important policy conclusion. Handguns, according to Scalia, are “overwhelmingly chosen” by gun owners who wish to carry a firearm for self-defense. For this reason, he wrote, handguns enjoy a kind of super-legal status. Lawmakers are not allowed to ban what Scalia described as “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.”
This declaration regarding handguns matters because this easily concealed weapon is responsible for far more deaths than any other weapon in the United States — and it isn’t close. In 2019, for example, a total of 13,927 people were murdered in the US, according to the FBI. Of these murder victims, at least 6,368 — just over 45 percent — were killed by handguns.”
“It is likely, moreover, that the Supreme Court is going to make it even harder for federal and state lawmakers to combat gun violence very soon.”
“The future of firearm regulation looks grim for anyone who believes that the government should help protect us from gun violence.”
“The government insists that its citizens have a Second Amendment right to defend their homes, but it also insists that armed agents of the state may break down one’s door in the middle of the night with little to no warning. So if a groggy, scared citizen, jolted out of bed by the sound of men shouting and the front door coming off its hinges, exercises that right against what he or she could reasonably assume to be violent intruders, the homeowner can be held criminally liable—and that includes capital punishment. In 2006, former Reason writer Radley Balko detailed the case of Cory Maye, a Mississippi man sentenced to death for fatally shooting a police officer during a no-knock drug raid. As Reason has argued continually over the years, these sorts of raids, especially when used for narcotics search warrants and non-violent offenses, put both officers and civilians at needless risk, occasionally with tragic results.”
“Sure enough, “Americans’ appetite for gun control is the lowest it has been since 2016,” according to Gallup. And while a large majority of Democrats still favor tighter restrictions, support has declined even in that group by five points. New gun owners, along with long-time shooters, are likely to respond to stricter gun laws with prickly defiance.
“Previous studies have proposed two sides of gun culture: one focused on recreational use and a second on self-defense. But the new BU study identifies a third mentality, made up of people who view the defense of the Second Amendment as necessary to freedom in the United States,” Boston University (BU) announced last summer. “This so-called ‘gun culture 3.0’ has increased the most in states that have strengthened their gun laws to the greatest degree, suggesting it may be triggered by perceived threats on individual liberty by the government.”
In states with secure gun rights, owners tend to be non-political and dedicated to recreation and self-defense, the study found. But restrictive laws prompt people to become resistant and to view their firearms as hedges against the state.
“The result is a few million people who are convinced that any genuine firearm violence prevention effort is the first step in a scheme to take away all of their rights and disenfranchise them,” groused Claire Boine, one of the BU researchers.
We saw the results just a few years ago in terms of massive noncompliance with “assault weapon” registration laws in Connecticut and New York. “Empire State gun owners are largely ignoring one of the signature elements of the watershed legislation,” the New York Daily News observed in 2015.”
“Folajtar has been fighting that particular act of Congress in federal court since 2018. Last week, a divided panel of the U.S. Court of Appeals for the 3rd Circuit rejected her constitutional challenge.
“Persons who have committed serious crimes forfeit the right to possess firearms much the way they ‘forfeit other civil liberties,'” such as the right the vote, stated the majority opinion of Judge Thomas L. Ambro in Folajtar v. Barr. And in this case, because Congress has designated Folajtar’s crime to be a felony, “we defer to the legislature’s determination.” That deferential approach, Ambro argued, “safeguards the separation of powers by allowing democratically constituted legislatures, not unelected judges, to decide in most cases what types of conduct reflect so serious a breach of the social compact as to justify the loss of Second Amendment rights.”
Writing in dissent, Judge Stephanos Bibas faulted his colleagues for an “extreme deference that gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.” Yes, there are “historical limits on the Second Amendment,” he acknowledged. And yes, “those limits protect us from felons, but only if they are dangerous.” Lisa Folajtar “is not dangerous. Neither the majority nor the Government suggest otherwise. Because she poses no danger to anyone,” Bibas concluded, she has no business permanently losing one of her constitutional rights.
In 2019, the U.S. Court of Appeals for the 7th Circuit delivered a similar ruling in Kanter v. Barr. Writing in dissent, then-Judge Amy Coney Barrett—who is Justice Amy Coney Barrett now—insisted that the majority was dead wrong.
“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote. “But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.””
“If you live in Chicago, you might be thinking about buying a gun to protect yourself, your family, your home, or your business against rioters, looters, and assorted violent criminals. But before you can exercise your Second Amendment rights in Illinois, you need permission from the state police, a process that can take months.
Contrary to a state law that requires approval or denial of an application for a firearm owner’s identification (FOID) card within 30 days, Illinois residents often wait two or three times as long. Such delays are plainly unconstitutional, according to a federal lawsuit filed last month by the Goldwater Institute on behalf of four Chicago area residents and two gun rights groups.”
“Illinois is one of just two states where residents need a license to possess long guns as well as handguns. In theory, the process is straightforward: As long as you are not legally disqualified from owning a firearm (because of a felony record, for example), the ISP has to give you a FOID card.
But the program has for years been plagued by insufficient funding and staffing. According to the Illinois State Rifle Association, another plaintiff in the federal lawsuit, FOID delays are only getting worse.”
“Illinois politicians, especially in Chicago, do not seem especially keen to respect that fundamental right. The city’s handgun ban, which it vigorously defended to the end, was overturned by the U.S. Supreme Court in a landmark 2010 case.
After that defeat, Chicago passed an ordinance that required would-be handgun owners to receive training at firing ranges and simultaneously banned all such businesses within the city. The U.S. Court of Appeals for the 7th Circuit blocked enforcement of that ordinance in 2011.”