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.<\/p>\n
The Supreme Court\u2019s Radical Second Amendment Jurisprudence is Sowing Chaos in the Lower Courts<\/a><\/p>\n In\u00a0New York State Pistol & Rifle Ass\u2019n v. Bruen<\/em><\/a>, decided last June, the Supreme Court issued one of the most unusual and dangerous opinions in American history. Clarence Thomas\u2019 majority opinion instructed lower court judges to rely exclusively on history and tradition to resolve Second Amendment cases and to completely ignore the government\u2019s asserted safety interests in passing gun control laws. Assuming that a person\u2019s conduct is arguably covered by the Second Amendment\u2019s text, the Justices said, the government can\u00a0only<\/em>\u00a0prevail if it demonstrates that similar laws were enacted in the past.<\/p>\n According to Second Amendment scholar Jake Charles in an excellent new\u00a0article<\/a>, since\u00a0Bruen\u00a0<\/em>was decided last June, there have been over 100 state and federal cases challenging gun reform laws. These courts \u201chave received\u00a0Bruen\u2019s<\/em>\u00a0message to supercharge the Second Amendment\u2026. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent.\u201d<\/p>\n The Court\u2019s exclusive focus on history and tradition in\u00a0Bruen<\/em>\u00a0is a radical departure from how the Court has traditionally decided constitutional law cases. Prior to\u00a0Bruen<\/em>, 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.<\/p>\n <\/p>\n Justice Thomas argued in\u00a0Bruen\u00a0<\/em>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\u00a0whether\u00a0<\/em>a plaintiff\u2019s 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 \u2014 or in almost any other constitutional challenge \u2014 is completely ignore the asserted rationale for the law at issue.<\/p>\n The\u00a0Bruen\u00a0<\/em>majority\u2019s exclusive reliance on history and tradition should not be confused with originalism in any of its many forms. Rather, Justice Thomas\u2019 analysis is best seen as what Harvard Law Professor Noah Feldman\u00a0calls<\/a>\u00a0\u201chistoricism.\u201d According to Feldman,\u00a0Bruen<\/em>\u00a0is \u201cnot genuine originalism. Drawing analogies between historical materials produced over hundreds of years and a contemporary case does not limit or constrain judges.\u201d The lower courts are proving Feldman right.<\/p>\n A Mississippi federal judge facing a challenge to a longstanding federal ban on felons possessing guns was so frustrated that he\u00a0asked<\/a>\u00a0the 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.<\/p>\n In a clear example of judicial abuse using the\u00a0Bruen\u00a0<\/em>historical approach, the fifth circuit court of appeals recently\u00a0struck down<\/a>\u00a0a 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.<\/p>\n Another glaring example of lower court confusion is evident from the court decision invalidating major parts of a\u00a0law<\/a>\u00a0New York passed after the\u00a0Bruen\u00a0<\/em>majority struck down the state\u2019s concealed carry regime. Part of that law prohibited guns in \u201csensitive places\u201d such as Times Square, the subway, and summer camps. The judge\u00a0struck down<\/a>\u00a0those sections of the law (among others) holding that there were no similar enough historical analogs under the\u00a0Bruen\u00a0<\/em>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.<\/p>\n There are many other examples of lower courts struggling with\u00a0Bruen\u2019s\u00a0<\/em>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\u2019 disagreements over the outcomes of these cases turn on \u201chow to apply Bruen\u2019s new method.\u201d<\/p>\n 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\u2019s risks and modern weapons under our standards not ones governing people who lived centuries ago.<\/p>\n If the Court\u2019s 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\u00a0Bruen\u00a0<\/em>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.<\/p>\n 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.\u00a0Bruen\u00a0<\/em>is, to put it simply, a terrible decision likely to have tragic consequences.<\/p>\n <\/p>\n Eric Segall is a professor of law at the Georgia State University College of Law and the author of<\/em>\u00a0Supreme Myths.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" 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\u2019s Radical Second Amendment Jurisprudence is Sowing … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,9],"tags":[],"class_list":["post-90460","post","type-post","status-publish","format-standard","hentry","category-courts","category-enemies-foreign-domestic"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90460","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=90460"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90460\/revisions"}],"predecessor-version":[{"id":90461,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90460\/revisions\/90461"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=90460"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=90460"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=90460"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}