It’s only ‘radical’ and causes chaos for the courts who judges don’t really like the idea that securing individual rights is what government is actually all about (see our Declaration of Independence) and hate that a higher court has told them to get back in line.

The Supreme Court’s Radical Second Amendment Jurisprudence is Sowing Chaos in the Lower Courts

In New York State Pistol & Rifle Ass’n v. Bruen, decided last June, the Supreme Court issued one of the most unusual and dangerous opinions in American history. Clarence Thomas’ majority opinion instructed lower court judges to rely exclusively on history and tradition to resolve Second Amendment cases and to completely ignore the government’s asserted safety interests in passing gun control laws. Assuming that a person’s conduct is arguably covered by the Second Amendment’s text, the Justices said, the government can only prevail if it demonstrates that similar laws were enacted in the past.

According to Second Amendment scholar Jake Charles in an excellent new article, since Bruen was decided last June, there have been over 100 state and federal cases challenging gun reform laws. These courts “have received Bruen’s message to supercharge the Second Amendment…. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent.”

The Court’s exclusive focus on history and tradition in Bruen is a radical departure from how the Court has traditionally decided constitutional law cases. Prior to Bruen, the Justices examined the strength and importance of a constitutional right and compared that to the interests put forward by the government to justify the restriction of that right.

Justice Thomas argued in Bruen that the tradition-and-history-only method has been employed by the justices in First Amendment speech cases, but that assertion is false. The Court consults history and tradition to determine at the outset whether a plaintiff’s conduct is speech or expression protected at all by the First Amendment. If so, however, the Court then balances the importance of the right against the public interest in the law using various levels of review depending on the type of restriction at issue. What the Court has not done in speech cases — or in almost any other constitutional challenge — is completely ignore the asserted rationale for the law at issue.

The Bruen majority’s exclusive reliance on history and tradition should not be confused with originalism in any of its many forms. Rather, Justice Thomas’ analysis is best seen as what Harvard Law Professor Noah Feldman calls “historicism.” According to Feldman, Bruen is “not genuine originalism. Drawing analogies between historical materials produced over hundreds of years and a contemporary case does not limit or constrain judges.” The lower courts are proving Feldman right.

A Mississippi federal judge facing a challenge to a longstanding federal ban on felons possessing guns was so frustrated that he asked the parties whether he should hire a professional historian to help him decide the case, candidly admitting that neither he nor the lawyers in the case were trained historians.

In a clear example of judicial abuse using the Bruen historical approach, the fifth circuit court of appeals recently struck down a federal law banning people who have been the subject of domestic violence restraining orders from owning guns. The defendant had a long history of violence and had threatened his girlfriend. The fifth circuit claimed it could not find historical analogs to the law because domestic violence was not deemed problematic by people living during the ratification period when wives had no separate legal existence from their husbands.

Another glaring example of lower court confusion is evident from the court decision invalidating major parts of a law New York passed after the Bruen majority struck down the state’s concealed carry regime. Part of that law prohibited guns in “sensitive places” such as Times Square, the subway, and summer camps. The judge struck down those sections of the law (among others) holding that there were no similar enough historical analogs under the Bruen approach though he did uphold bans on guns in schools, places of worship, and courthouses. The case is currently on appeal. The notion that the Second Amendment allows states to ban guns in schools but not summer camps, or in churches but not Broadway theaters, is absurd and dangerous.

There are many other examples of lower courts struggling with Bruen’s radical approach to constitutional law. Judges have reached different results on whether people who are indicted for felonies may be barred from purchasing new guns and whether people may lawfully possess guns with a serial number that has been obliterated. No one can predict how judges will rule on these and a huge array of other issues they are confronting such as whether or how states may regulate large capacity magazines and self-manufactured guns, and whether minors may possess guns and at what age. According to Professor Charles, the lower courts’ disagreements over the outcomes of these cases turn on “how to apply Bruen’s new method.”

Both the type of guns available to ordinary citizens and the everyday life of people in America have changed so dramatically over the last two centuries that resorting to the values, practices, and legal regimes of eras long past is absurd, dangerous, and highly undemocratic. We should have the right to protect ourselves from today’s risks and modern weapons under our standards not ones governing people who lived centuries ago.

If the Court’s new history-and-tradition method were capable of consistent application by the lower courts, the approach might be justifiable. But judges are not historians and given there are centuries of laws, judicial decisions, and practices relating to guns and gun safety, the Bruen method simply allows judges to see in history and tradition what they want to see which will almost always line up with their personal values, politics, and experiences, not what is in the best interests of the United States.

It is no surprise that lower courts are in complete disarray over the meaning of the Second Amendment, making the future of gun reform in the United States completely unstable. Bruen is, to put it simply, a terrible decision likely to have tragic consequences.

 

Eric Segall is a professor of law at the Georgia State University College of Law and the author of Supreme Myths.