{"id":8551,"date":"2022-08-07T23:22:51","date_gmt":"2022-08-07T23:22:51","guid":{"rendered":"http:\/\/lonecandle.com\/?p=8551"},"modified":"2022-08-07T23:22:51","modified_gmt":"2022-08-07T23:22:51","slug":"the-supreme-courts-new-gun-ruling-means-virtually-no-gun-regulation-is-safe","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=8551","title":{"rendered":"The Supreme Court\u2019s new gun ruling means virtually no gun regulation is safe"},"content":{"rendered":"\n

\n\n“The Second Amendment states that \u201ca well regulated Militia, being necessary to the security of a free State<\/a>, the right of the people to keep and bear Arms, shall not be infringed.\u201d Thus, it is the rare constitutional provision that not only declares the existence of a right, but also states the reason why this right exists. The purpose of the Second Amendment is to protect \u201ca well regulated Militia.\u201d That\u2019s what the plain text of the Constitution provides.<\/p>\n\n\n\n

But Thomas\u2019s opinion in Bruen<\/em>, much like the Court\u2019s earlier decision<\/a> in District of Columbia v. Heller<\/em><\/a> (2008), thumbs its nose at the text of the Constitution.”<\/p>\n\n\n\n

… “The immediate impact of Bruen<\/em> is that handguns \u2014 which are responsible for the overwhelming majority of gun murders<\/a> in the United States \u2014 are likely to proliferate on many American streets. That\u2019s because Bruen<\/em> strikes the types of laws that limit who can legally carry handguns in public, holding that \u201cthe Second and Fourteenth Amendments protect an individual\u2019s right to carry a handgun for self-defense outside the home.\u201d<\/p>\n\n\n\n

The case involves a 109-year-old New York state law which requires anyone who wishes to carry a handgun in public, whether openly or concealed, to demonstrate \u201cproper cause\u201d<\/a> before they can obtain a license to do so. An applicant must show \u201ca special need for self-protection<\/a> distinguishable from that of the general community or of persons engaged in the same profession.\u201d<\/p>\n\n\n\n

Similar laws exist in five other states<\/a> \u2014 California, Hawaii, Maryland, Massachusetts, and New Jersey \u2014 plus the District of Columbia. Together, these jurisdictions make up about a quarter of the US population, and a much higher percentage of the country\u2019s urban population. In effect, that has meant very few residents of those states have been able to legally carry a handgun in public.<\/p>\n\n\n\n

Writing solely for the Court\u2019s Republican appointees, Justice Clarence Thomas strikes down New York\u2019s century-old law. He also establishes a whole new (confusing) framework for evaluating gun control laws. Bruen <\/em>establishes a \u201ctext, history, and tradition test\u201d that purports to be rooted in, well, the text of the Constitution, and the history of English and early American gun laws.<\/p>\n\n\n\n

In reality, however, Thomas\u2019s new test takes extraordinary liberties with the text of the Second Amendment<\/a>, which explicitly states that the purpose of the right to bear arms is to protect service in a militia.<\/p>\n\n\n\n

And when it comes to \u201chistory,\u201d \u201cthe Court\u2019s near-exclusive reliance on history is not only unnecessary, it is deeply impractical,\u201d as Breyer chastises Thomas in dissent. That\u2019s because judges are ill-equipped to conduct the kind of multi-century historical survey that Thomas\u2019s new framework demands.<\/p>\n\n\n\n

Worse, Thomas announces that the government bears the burden of showing that any gun law \u201cis consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d But if \u201ctradition\u201d is so important, why must New York\u2019s 100-year-old law fall? As a practical matter, moreover, that Thomas places the burden of proof on the government means many gun laws are likely to fall because, when the historical record is unclear, the government loses.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“As the Court explained in United States v. Miller<\/em><\/a>(1939), the \u201cobvious purpose\u201d of the Second Amendment was to \u201crender possible the effectiveness\u201d of militias, and the amendment must be \u201cinterpreted and applied with that end in view.\u201d<\/p>\n\n\n\n

But Heller<\/em> upended that. And quoting from Heller<\/em>, Thomas writes that \u201cindividual self-defense is \u2018the central component\u2019 of the Second Amendment right.\u201d And therefore gun regulations should be judged according to whether they undermine this atextual purpose invented by Republican appointees to the Supreme Court.<\/p>\n\n\n\n

Similarly, Thomas writes that courts should determine whether a modern-day gun regulation fits within the nation\u2019s historical traditions by drawing \u201chistorical analogies\u201d to early American gun laws.<\/p>\n\n\n\n

Thomas\u2019s opinion suggests that these analogies may need to be drawn to laws that existed in 1791, when the Second Amendment was ratified; or that they may need to be drawn to laws that existed in 1865 \u2014 when the Fourteenth Amendment, which requires states to comply with the Second Amendment<\/a>, was ratified. It declines to resolve questions about which date matters, however, adding another layer of confusion for judges forced to apply Bruen<\/em>.<\/p>\n\n\n\n

In any event, there are fairly obvious reasons why it is hard to draw reliable analogies between modern-day regulations and laws from earlier centuries. Federal law, for example, prohibits civilian ownership of machine guns<\/a>. But the machine gun was invented in 1884<\/a>. So a judge searching for early American laws regulating automatic weapons will come up empty, because machine guns did not exist during either the Founding Era or the Reconstruction Era. Does this mean that a ban on machine guns is unconstitutional?<\/p>\n\n\n\n

Thomas also writes that \u201cwhen a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.\u201d In other words, modern gun laws that address problems that existed in the 1700s are likely to fall, unless similar laws existed in the 18th century.<\/p>\n\n\n\n

For this reason, Thomas concludes that a handgun ban like the one struck down in Heller<\/em> is unconstitutional because the framers did not ban handguns in order to combat the problem of \u201cfirearm violence in densely populated communities.\u201d<\/p>\n\n\n\n

But this reasoning is anachronistic. According to the 1790 census, New York City had only 33,131 residents<\/a> around the time when the Second Amendment was ratified. The second-largest city, Philadelphia, had fewer than 29,000 residents<\/a>.<\/p>\n\n\n\n

Eighteenth-century Americans, in other words, simply did not confront the problem of \u201cfirearm violence in densely populated communities.\u201d The most densely populated communities in the 18th-century United States had roughly the same number of people as a small town in modern-day America.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“this litany of long-forgotten laws does little to clarify the question of what the framing generation (or perhaps people during Reconstruction) thought about the right to carry a firearm without a permit on city streets. The bottom line is that the six Republican appointees surveyed many centuries worth of gun laws and concluded that they support the Republican Party\u2019s preferred stance on firearms; while the three Democratic appointees surveyed the same laws and concluded that they support the Democratic Party\u2019s preferred stance on firearms.<\/p>\n\n\n\n

In fairness, Thomas does offer a workaround for the problem that many modern weapons \u2014 from machine guns to intercontinental ballistic missiles \u2014 did not exist until very recently and therefore were not regulated by early American lawmakers.<\/p>\n\n\n\n

The lesson of history, Thomas claims, is that the Second Amendment protects the right of civilians to carry weapons that \u201care \u2018in common use at the time.\u2019\u201d So an amendment that may have protected the right to own a musket in 1790 now protects the right to own a handgun, because handguns are now commonly used by civilians. Similarly, even Thomas would likely concede that the Second Amendment does not permit civilians to own tanks, nuclear warheads, or other weapons that are not commonly possessed by civilians in 2022.<\/p>\n\n\n\n

Judges will no doubt have an easier time determining what kinds of guns are in common use in 2022 than they will determining what 18th-century gun laws have to say about the B-2 stealth bomber<\/a>. But Thomas\u2019s need to rely on such a workaround from his \u201ctext, history, and tradition\u201d framework only emphasizes the uselessness of that framework.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/2022\/6\/23\/23180205\/supreme-court-new-york-rifle-pistol-clarence-thomas-second-amendment-guns<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“The Second Amendment states that \u201ca 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.\u201d Thus, it is the rare constitutional provision that not only declares the existence of a right, but also states the reason why this right exists. The purpose of the Second Amendment is to protect \u201ca well regulated Militia.\u201d That\u2019s what the plain text of the Constitution provides.
\nBut Thomas\u2019s opinion in Bruen, much like the Court\u2019s earlier decision in District of Columbia v. Heller (2008), thumbs its nose at the text of the Constitution.”<\/p>\n

… <\/p>\n

“The immediate impact of Bruen is that handguns \u2014 which are responsible for the overwhelming majority of gun murders in the United States \u2014 are likely to proliferate on many American streets. That\u2019s because Bruen strikes the types of laws that limit who can legally carry handguns in public, holding that \u201cthe Second and Fourteenth Amendments protect an individual\u2019s right to carry a handgun for self-defense outside the home.\u201d
\nThe case involves a 109-year-old New York state law which requires anyone who wishes to carry a handgun in public, whether openly or concealed, to demonstrate \u201cproper cause\u201d before they can obtain a license to do so. An applicant must show \u201ca special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.\u201d<\/p>\n

Similar laws exist in five other states \u2014 California, Hawaii, Maryland, Massachusetts, and New Jersey \u2014 plus the District of Columbia. Together, these jurisdictions make up about a quarter of the US population, and a much higher percentage of the country\u2019s urban population. In effect, that has meant very few residents of those states have been able to legally carry a handgun in public.<\/p>\n

Writing solely for the Court\u2019s Republican appointees, Justice Clarence Thomas strikes down New York\u2019s century-old law. He also establishes a whole new (confusing) framework for evaluating gun control laws. Bruen establishes a \u201ctext, history, and tradition test\u201d that purports to be rooted in, well, the text of the Constitution, and the history of English and early American gun laws.<\/p>\n

In reality, however, Thomas\u2019s new test takes extraordinary liberties with the text of the Second Amendment, which explicitly states that the purpose of the right to bear arms is to protect service in a militia.<\/p>\n

And when it comes to \u201chistory,\u201d \u201cthe Court\u2019s near-exclusive reliance on history is not only unnecessary, it is deeply impractical,\u201d as Breyer chastises Thomas in dissent. That\u2019s because judges are ill-equipped to conduct the kind of multi-century historical survey that Thomas\u2019s new framework demands.<\/p>\n

Worse, Thomas announces that the government bears the burden of showing that any gun law \u201cis consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d But if \u201ctradition\u201d is so important, why must New York\u2019s 100-year-old law fall? As a practical matter, moreover, that Thomas places the burden of proof on the government means many gun laws are likely to fall because, when the historical record is unclear, the government loses.”<\/p>\n

…<\/p>\n

“As the Court explained in United States v. Miller (1939), the \u201cobvious purpose\u201d of the Second Amendment was to \u201crender possible the effectiveness\u201d of militias, and the amendment must be \u201cinterpreted and applied with that end in view.\u201d<\/p>\n

But Heller upended that. And quoting from Heller, Thomas writes that \u201cindividual self-defense is \u2018the central component\u2019 of the Second Amendment right.\u201d And therefore gun regulations should be judged according to whether they undermine this atextual purpose invented by Republican appointees to the Supreme Court.<\/p>\n

Similarly, Thomas writes that courts should determine whether a modern-day gun regulation fits within the nation\u2019s historical traditions by drawing \u201chistorical analogies\u201d to early American gun laws.<\/p>\n

Thomas\u2019s opinion suggests that these analogies may need to be drawn to laws that existed in 1791, when the Second Amendment was ratified; or that they may need to be drawn to laws that existed in 1865 \u2014 when the Fourteenth Amendment, which requires states to comply with the Second Amendment, was ratified. It declines to resolve questions about which date matters, however, adding another layer of confusion for judges forced to apply Bruen.<\/p>\n

In any event, there are fairly obvious reasons why it is hard to draw reliable analogies between modern-day regulations and laws from earlier centuries. Federal law, for example, prohibits civilian ownership of machine guns. But the machine gun was invented in 1884. So a judge searching for early American laws regulating automatic weapons will come up empty, because machine guns did not exist during either the Founding Era or the Reconstruction Era. Does this mean that a ban on machine guns is unconstitutional?<\/p>\n

Thomas also writes that \u201cwhen a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.\u201d In other words, modern gun laws that address problems that existed in the 1700s are likely to fall, unless similar laws existed in the 18th century.<\/p>\n

For this reason, Thomas concludes that a handgun ban like the one struck down in Heller is unconstitutional because the framers did not ban handguns in order to combat the problem of \u201cfirearm violence in densely populated communities.\u201d<\/p>\n

But this reasoning is anachronistic. According to the 1790 census, New York City had only 33,131 residents around the time when the Second Amendment was ratified. The second-largest city, Philadelphia, had fewer than 29,000 residents.<\/p>\n

Eighteenth-century Americans, in other words, simply did not confront the problem of \u201cfirearm violence in densely populated communities.\u201d The most densely populated communities in the 18th-century United States had roughly the same number of people as a small town in modern-day America.”<\/p>\n

…<\/p>\n

“this litany of long-forgotten laws does little to clarify the question of what the framing generation (or perhaps people during Reconstruction) thought about the right to carry a firearm without a permit on city streets. The bottom line is that the six Republican appointees surveyed many centuries worth of gun laws and concluded that they support the Republican Party\u2019s preferred stance on firearms; while the three Democratic appointees surveyed the same laws and concluded that they support the Democratic Party\u2019s preferred stance on firearms.<\/p>\n

In fairness, Thomas does offer a workaround for the problem that many modern weapons \u2014 from machine guns to intercontinental ballistic missiles \u2014 did not exist until very recently and therefore were not regulated by early American lawmakers.<\/p>\n

The lesson of history, Thomas claims, is that the Second Amendment protects the right of civilians to carry weapons that \u201care \u2018in common use at the time.\u2019\u201d So an amendment that may have protected the right to own a musket in 1790 now protects the right to own a handgun, because handguns are now commonly used by civilians. Similarly, even Thomas would likely concede that the Second Amendment does not permit civilians to own tanks, nuclear warheads, or other weapons that are not commonly possessed by civilians in 2022.<\/p>\n

Judges will no doubt have an easier time determining what kinds of guns are in common use in 2022 than they will determining what 18th-century gun laws have to say about the B-2 stealth bomber. But Thomas\u2019s need to rely on such a workaround from his \u201ctext, history, and tradition\u201d framework only emphasizes the uselessness of that framework.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[790,113,407,112,406,109,1213,236,551,470,528],"class_list":["post-8551","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-courts","tag-gun-control","tag-gun-deaths","tag-gun-laws","tag-gun-violence","tag-guns","tag-judiciary","tag-regulation","tag-regulations","tag-second-amendment","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8551","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8551"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8551\/revisions"}],"predecessor-version":[{"id":8552,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8551\/revisions\/8552"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8551"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8551"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8551"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}