Good Friday Morning! By the time you read this, we’ll probably have even more Supreme Court opinions. New opinions were released Tuesday and Thursday of this week, with more appearing on Friday. We’re getting down to the last decisions of the term. The Dobbs abortion case is the one everyone is watching, but a critical Second Amendment case got released today — and I’ll be covering it below.
Two other cases are worth mentioning too.
- The Supreme Court struck down Maine’s law in a 6-3 decision that prevented public funds from going to religious schools. This case was a significant victory on the Free Exercise of Religion front, as it allows parents access to public funds to send their children to religious schools.
- The Supreme Court ruled in an 8-1 decision that the North Carolina GOP can “join a lawsuit to defend the constitutionality of the state’s voter-identification law. Two lower courts had rejected the legislators’ request, reasoning that the state’s Democratic attorney general and the board of elections were already defending the law, but the justices reversed those rulings.” This ruling could be consequential in future abortion cases where state attorney generals or prosecutors refuse to defend a law. Third parties can step in and take the place of those officials.
There are plenty of other fascinating issues. Neil Gorsuch continues his reputation from the Appeals Courts as a staunch defender of Native American rights. He is almost single-handedly rewriting that area of law. Some group needs to create a comprehensive CLE package that explores that after this term ends.
We’re also seeing Barrett flex her position on the Court more. Her concurrence in the Second Amendment case I’m covering today was professorial and guided the Court out of some intellectual briar patches (while Alito went full flamethrower).
More to come from the Supreme Court. I wouldn’t be shocked that we have the Dobbs opinion by the time I’m writing next week. Until then, I’m digging into the Second Amendment case this week and talking about where things head next after the Breun case-Links to follow.
Where you can find me this week
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[6/24/2022] We’re already in a recession – Conservative Institute
The Supreme Court ends “May-Issue” states and sets the stage for more 2A litigation.
It’s that time of the year: the most controversial Supreme Court decisions are coming. After a long wait, we finally have the decision in New York State Rifle & Pistol Association v. Bruen. Justice Clarence Thomas wrote the majority opinion for a 6-3 court, with Justice Stephen Breyer writing for the liberals. Kavanaugh, Barrett, and Alito all wrote concurrences.
The decision was a resounding victory for gun rights. Most court-watchers expected Thomas to get the majority opinion. The Court released the opinion on Thomas’s birthday, which you can file away for political trivia later. I expected an excellent Thomas opinion and received it. I didn’t expect Thomas and Alito tag-teaming body-slams on Breyer’s dissent. More on that shortly.
A quick explainer: Most states (43 of them) are “shall issue” states regarding firearm licenses. That means you get a gun license if you fulfill some objective criteria, and if you do that, you get a permit. New York is what’s called a “may issue” state. That means they can deny you a gun license for various reasons, not necessarily objective. New York’s vague licensing requirements were the central issue.
I’ll get to the case in a moment. But I want to highlight a reaction to the decision first. It comes from the NY Legal Aid Society, which provides low-cost or pro-bono legal help to people in New York. It’s a liberal institution in NY politics. Before denouncing the “gun lobby and NRA” as racist, they hammered the NY law at issue:
The Legal Aid Society is calling for a thoughtful approach from lawmakers following a Supreme Court ruling which found that New York’s concealed-carry gun licensing regulations violate the Second Amendment.
“New York’s gun licensing regulations have been arbitrarily and discriminatorily applied, disproportionately ensnaring the people we represent, the majority of whom are from communities of color, in the criminal legal system,” reads a statement from Legal Aid. “This decision may be an affirmative step toward ending arbitrary licensing standards that have inhibited lawful Black and Brown gun ownership in New York.”
This statement describes how these regulations go: blue cities enforce them against minorities more. We’ll return to this point because it features in the majority opinion written by conservatives but not the liberal dissent.
Let’s shift to the opinion. There are two overarching points to take away from this Supreme Court opinion. First, the ruling on the merits is relatively narrow. Essentially, this case declares all “may issue” states as violating the Constitution. Those states will have to move towards “shall issue” states — the majority position in the US. That only impacts about six states.
Second, the Supreme Court laid out how lower courts should interpret the Second Amendment explicitly. The lower circuits had coalesced around a two-step process that the majority opinion voided. Thomas put the new test like this:
In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
This statement of how courts must interpret the Second Amendment will have a broad impact. It’s hard to say how much of an effect it will have, but I think it will be much harder for any state to justify bans on semi-automatics, handguns or rifles. It’s also hard to see cosmetic feature bans surviving a challenge.
The dissent written by Breyer spent considerable time laying out the statistics of “gun violence.” The history and legal arguments got side-stepped for the “parade of horribles,” which included references to recent mass shootings in Uvalde, TX, and Buffalo, NY. Alito and Thomas were having none of it.
Alito went hammer and tongs on Breyer’s argument:
In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.
What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?
The dissent cites statistics about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?
The dissent cites statistics on children and adolescents killed by guns, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, and bars the sale of a handgun to anyone under the age of 21.
Alito goes on like that for a while, hammering each point of Breyer’s dissent. He ends with this:
I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.
Breyer went with the stereotypical appeal to emotion that liberals are fond of on this issue but ignores most of the law and other points. Alito destroys this point.
Thomas nods to Alito’s points without derailing the majority opinion on responding to those weak arguments. Where Thomas comes in hard on Breyer — and makes a point the left ignores, is the racist history of gun control.
A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the im- importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.
After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted. This Court has already recounted some of the Southern abuses violating blacks’ right to keep and bear arms.
Thomas explicitly connects the racial overtones of those gun control laws with the racism of the Dred Scott case, which is the case that said blacks weren’t human under the Constitution and could therefore be denied their rights. It’s the worst decision in Supreme Court history by a mile.
It’s interesting to note that the NY Legal Aid Society agrees that the NY “may issue” law explicitly discriminates against minorities. Because officials could reject a gun license for whatever reason, they rejected minority gun license requests. That tracks the same racism from the Dred Scott decision into the 20th century.
I’ll note here, too, that one of the arguments that Abraham Lincoln received for not issuing the Emancipation Proclamation was along these same lines. Paraphrasing, “if you declare that all blacks are free, they get the same rights to weapons as whites and might rise up against their “owners” and cause riots in the South.”
And again, if you don’t believe Justice Thomas or me (but you should believe Thomas, who goes into great historical detail), go with a liberal commentator at the New York Times, Jane Coaston, who wrote the following piece: “The (Really, Really) Racist History Of Gun Control In America: The origin of gun control — and its impact on black Americans — is being forgotten.”
Where do things go next for the Second Amendment? I wouldn’t expect any Supreme Court action for at least a few years, maybe some small stuff. Because the Supreme Court issued explicit instructions on reading its jurisprudence in this case, lower courts will take time to digest and interpret this new direction.
It is likely that all remaining “may issue” states will become a version of “shall issue” states. The Firearms Policy Coalition is pushing lawsuits to ensure all states comply with this case:
We’re already suing NYC (http://firearmspolicy.org/greco), so expect action in that case soon. Go apply for a carry license. If you’re denied or are burdened with bullshit, let our FPC Law team know. We’d love to sue NYC again (and again and again). https://firearmspolicy.org/hotline
I also wouldn’t be shocked if we see state or local-level license issuers refuse to follow the case. We could get shades of Kim Davis, who refused to issue marriage certificates in Kentucky.
But this is all conjecture. The significant impacts will be in states that used to be “may issue.” If you’re in any other state, you shouldn’t notice anything new regarding firearm regulations. This decision also does little to impact ongoing efforts in Congress to pass new laws on firearms and mental health.
The next stage of major litigation will likely be over magazine size and the constitutionality of “assault weapon bans.” But I don’t see that occurring on the horizon any time soon. For now, every state is a minimum of a “shall issue” state, with some red states shifting towards “constitutional carry.”
Links of the week
Signs Point to Rising Recession Risk – Charles Schwab
“If there’s kids in there, we need to go in”: Officers in Uvalde were ready with guns, shields and tools — but not clear orders: The Texas Tribune has reviewed law enforcement transcripts and footage that federal and state investigators are examining after the May 24 tragedy. – Terri Langford, Texas Tribune
Fears Grow Over Iran’s Nuclear Program as Tehran Digs a New Tunnel Network: The conflict over the program is about to flare again as President Biden travels next month to Israel and Saudi Arabia, Iran’s two biggest regional rivals. – NYT
A potential economic recession and the supply chain bullwhip are colliding: Freight carriers across all modes should brace for weaker conditions in the coming months. – Craig Fuller, CEO at FreightWaves
White House Weighs Fuel-Export Limits as Pump Prices Surge: Options including waiving anti-smog rules also being discussed Climbing energy costs pose political risk to Biden, Democrats – Ari Natter, Bloomberg
Rendezvous with Oblivion: Biden’s historians fantasized about FDR, but the reality will be closer to Carter. – Carl Schramm, The American Mind
The Careening Cars and Multiple Nostalgias of Conservatives – Avi Woolf, The Ordinary Times
How liberal policies have killed black communities – Clarence Thomas, NYPost
DEI’s Unknown Unknowns with John McWhorter – Glenn Loury
A sunshine state of mind: Floridians are proud and protective — and for good reason – Karol Markowicz, The Spectator
Who owns the Fed’s massive losses? – The Hill
Federal Reserve Study: Demand is driving 1/3 of inflation, supply the other 2/3 – Federal Reserve Bank of San Francisco
Is Twitter-Famous Princeton Historian Kevin Kruse a Plagiarist? His 2000 thesis on civil-rights-era Atlanta lifts passages from other people’s work. – Phillip W. Magness, Reason Magazine
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!