The Supreme Court’s 6-t0-3 decision that struck down New York’s licensing requirements for firearms is not as sweeping as some make it out to be. But the convoluted reasoning behind the ruling is perhaps more dishonest than even the court’s worst critics imagine.
Thomas write that in justifying gun regulations, the government “cannot simply claim that the regulation promotes an important interest.” Instead, he argues, “when the plain text of the Second Amendment covers an individual’s conduct, the Constitution presumably protects that conduct.”
But of course the plain text of the Second Amendment says nothing about the regulation of modern firearms, since they did not exist at the time of its passage.
Furthermore, Thomas’s proclamation that gun regulations must be “consistent with this nation’s historic tradition of firearms regulation” is nonsense. Which story do you choose? His hyper-originalism suggests we should look to the 18th century or maybe the 14th Amendment. But if modern pistols didn’t exist then, which tradition is he pointing to? He clarifies that weapons may be prohibited in “sensitive” places (perhaps the Supreme Court building?), as opposed to public spaces in general. But again, where does this rule come from?
Thomas further muddies the waters by admitting that the government only needs to “identify a well-established and representative historical analog” of previous gun regulations (presumably at the time of the Second or 14th Amendments), not “a historical twin.” And he adds: “Even if a modern regulation is not a dead ringer for historical forerunners, it may still be analogous enough to pass the constitutional test.” If that’s not a recipe for endless confusion and litigation, I’m not sure what is.
As intellectually flawed as Thomas’s opinion is, it is not controlling because the concurring opinion of Justice Brett M. Kavanaugh and Chief Justice John G. Roberts Jr. does appeal to him. Kavanaugh writes in the concurrence that the ruling “does not prohibit states from imposing license requirements to carry a firearm in self-defense” in the 43 states that “employ objective license requirements.” Only the six states where “authorities have the discretion to deny concealed carry licenses even when the applicant meets the legal criteria” are affected by the decision.
In other words, the potential for some concealed carry laws still exists. The concurrence emphasizes: “Properly interpreted, the Second Amendment allows for a ‘variety’ of gun regulations.”
And that Will pass the list? Who knows? And therein lies the madness of the court. The carefully selected story modified by the subjective reasoning of Roberts and Kavanaugh eradicates the very things law is supposed to provide: stability and predictability. No state or local jurisdiction can see this decision and be sure what will be constitutionally approved.
Harvard University’s Laurence Tribe, a constitutional scholar, tells me that the three concurrences and dissent provide “welcome limits on the otherwise inordinate scope of Thomas’s majority opinion.” But, he says, it would have been much better for the court to have “concretely listed the specific types of security measures that are likely to get five votes.” Instead, legislators are left adrift and confused.
As discouraging as the court’s lack of intellectual integrity may be, it’s worth noting the dynamic at work here. Two of the court’s six right-wing judges modified an ill-reasoned radical right-wing statement rooted in a confusing history. That could minimize the appearance of the radicalism of the majority, leaving the real impact of the decision much more limited and confused.
We could see a similar dynamic in the case of abortion this term. In it, Kavanaugh and Roberts will undoubtedly have to face another radical and ahistorical decision (likely from Judge Samuel A. Alito Jr., author of the leaked draft opinion). Will they try to craft another compromise to downplay the reckless and aggressive activism of their four right-wing colleagues? We’ll have to wait until that decision is made, probably next week.
Meanwhile, judges inadvertently make a powerful case for term limits. If they are going to act as legislators untethered by history or precedent, then there is no reason to give them a lifetime term. With each intellectually rickety decision, they provide more justification for ceasing to treat them as neutral judges and instead as the partisan figures they are.
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