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It was nice while it lasted


The Supreme Court commenced a revolution in Second Amendment law on Thursday, striking down New York’s strict limits on concealed carry in a maximalist opinion by Justice Clarence Thomas that renders most of the nation’s gun control laws presumptively unconstitutional. The decision will unleash a tidal wave of lower court rulings invalidating laws designed to protect Americans from the carnage of gun violence. And it will stymie current efforts to reduce that violence through innovative new solutions to this epidemic. For gun control advocates, it is the worst-case scenario.

Thursday’s decision, New York State Rifle and Pistol Association v. Bruen, involves a challenge to New York’s restrictions on the carrying of concealed firearms in public. Like seven other states, New York bars residents from obtaining a concealed carry permit without some elevated need for self-defense. Thomas, joined by the other five conservative justices, invalidated that law as a violation of the Second Amendment. In doing so, he dramatically expanded the scope of the court’s previous gun decisions, which limited the right of self-defense to the home.

Before Thursday, 83 million people—or about one in four Americans—lived in a state with stringent limits on concealed carry. After Bruen, zero do.

But Thomas did not stop there. In striking down New York’s restriction, the justice also established a new standard for evaluating gun control measures. First, he asked whether a law interferes with rights protected in “the plain text” of the Second Amendment—specifically, the right to self-defense (which is not actually in the amendment’s text). If so, Thomas explained, that law is presumptively unconstitutional. The government may only save it from invalidation if it can prove that the regulation “is consistent with this nation’s historical tradition of firearm regulation.”

In other words, courts may no longer rely on empirical evidence in upholding gun control laws. They cannot, for instance, cite the heightened lethality of a particular weapon. Such data is now irrelevant. Rather, they can only ask whether there is some “historical analogue” from 1791 (when the Second Amendment was ratified) or 1868 (when the 14th Amendment was ratified, applying the Second Amendment to the states). One might assume that this analysis would only shield weapons that were in common use in 1791 or 1868. But Thomas clarified that “any modern instruments that facilitate armed self-defense” are also protected under the Constitution, even if they did not exist until recently.

This approach overrules the test used by many courts of appeals in assessing gun restrictions, creating a new, incredibly demanding standard for the government to satisfy. Previously, these courts engaged in what Thomas dismisses as “means-end scrutiny,” asking whether the law is carefully tailored to promote an important state interest. Countless other rights are assessed under this standard. Thomas, however, declared that it is an inappropriate test for firearm laws, because “the people” already decided that they hold a presumptive right to bear arms when ratifying the Second and 14th Amendments.

Regulating firearms on the basis of the political beliefs held by a handful of political elites in 1790 is every bit as nonsensical as treating heart disease on the basis of the medical beliefs of doctors in 1790.

This basic point doesn’t even address the question of whether Clarence Thomas’s law office history is a a series of cheap rhetorical gestures as opposed to actual history (Spoiler: It is).

This country has been taken over by a coalition of religious fanatics and equally unhinged plutocrats, who are putting us into a death spiral of radical reaction. On a closely related matter, Scott’s post about the Arizona politician who believes the Constitution is divinely inspired reminds me that we need to dispense with the pernicious bit of cultural etiquette that decrees you can’t describe frankly delusional beliefs as frankly delusional if those beliefs have the word “God” attached to them.

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