Justice Thomas's Concealed Carry Gun Ruling is a Judicial Train Wreck



Justice Thomas's majority opinion in New York State Rifle & Pistol Association v. Bruen will be remembered as one of the most poorly reasoned opinions ever handed down by the Supreme Court. It ignores the real history of the 2nd amendment in order to pacify anti-government zealots in the Republican Party.


The essential points are these:

1. Like other states, New York had a statute that allowed individuals to apply for a concealed carry gun permit.


2. Local officials would then decide if the individual had a good reason to desire the permit. A general fear of criminal activity was not enough; the applicant had to demonstrate to local officials that they faced a pattern of physical threats or carried a large amount of cash or jewelry around as part of their job. The statute was meant to reduce the number of individuals walking the streets of New York with concealed weapons.


3. In his opinion, Thomas says that such "may-issue" statutes are unconstitutional, but that "shall issue" statutes are generally permissible. Shall-issue permits allow any citizen without a criminal record who meets the basic training or educational requirements to obtain a concealed carry permit.


Justice Thomas says he is basing his ruling on a judicial philosophy known as originalism, meaning that judges should interpret the Constitution based on what its meaning would have been in the late 18th century. Originalists believe that the document shouldn't evolve with society, science, technology, or culture. The doctrine suits conservatives because it makes it difficult for the law to evolve with changes in our society.


Most jurists had abandoned originalism in the latter half of the 20th century to allow the constitution to slowly adapt to cultural changes, social progress, and scientific and technological advances. The conservatives on the Court today are trying to turn back the clock to undermine that progress.


We have written about the advantages of a modern [living document] view of constitutional interpretation before.

Illuminate: "Most jurists today view the Constitution as a living document which has been slowly and carefully adapted over the last 230 years to fit a radically different America than the one that existed in the late 18th century. Originalists bemoan that process, but it's what has allowed our Constitution to become the oldest in the world. The genius of the framers was that they understood what they could never know; the future. The General Welfare, Necessary and Proper, Establishment, Due Process and Commerce clauses, among so many others, are as vital today as when they were written because our Constitution is a living document, evolving with science, technology, and culture."

Oddly, however, in New York State Rifle & Pistol Association v. Bruen Thomas and the other conservatives on the Court actually ignored originalism and the history of the 2nd Amendment to reach conclusions that no one in the late 18th century would recognize. Professor Adam Winkler, one of America's foremost experts on the history of the 2nd amendment put it this way last week.


Winkler, The NewYorker: "Most notable is that the Court says it is going to look to history and tradition [of the 2nd Amendment], but then ignores history and tradition."


Thomas's argument is that the founders wouldn't have allowed may-issue concealed gun permits so we shouldn't either. Thomas is demonstrably wrong. J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006, and Richard D. Bernstein, an appellate lawyer, explained Thomas's error in a piece for the Times last week.

New York Times: "What is more, centuries of unbroken history and tradition show that there has never been such an unrestricted constitutional right to bear arms outside the home."
"Historically and traditionally, legislatures have restricted the public carry of guns, from medieval England to colonial times, through the founding and to the present day. In fact, many of those early laws were more draconian than our own, banning the carry of guns in public places generally, without offering any exceptions like those New York provides for people who can demonstrate an actual need to defend themselves. Those restrictions extended far beyond public locations with a large and continuous armed police presence, such as government buildings and courthouses, to almost any public place — fairs, markets and indeed wherever a person would “go armed.”

So why would an originalist court abandon originalism to expand gun rights beyond the founders' intentions? The 2nd Amendment's right to keep and bear arms is one of the few liberties to have corporate lobbyists; gun manufacturers. And they are generous benefactors of the Republican Party. Moreover, the mythology surrounding the 2nd amendment has become so entangled with the anti-government rhetoric of the far-right that it has become a litmus test for conservatives. Thomas and his fellow conservatives are more interested in pacifying the Republican base that got them their jobs on the Court than honoring their own doctrine of constitutional interpretation.


#law #constitution #supremecourt #guns

By: Don Lam & Curated Content

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