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The Sorest Winner


Clarence Thomas’s majority opinion holding that a New York statute enacted during the Taft administration was not part of the American tradition of regulating firearms while inventing a new framework that threatens most gun control legislation is an embarrassment of bullshit-orignalism. Alito’s concurrence is more just pathetic:

As you can probably tell even from that brief excerpt, Alito’s whine represents the familiar approach of Republicans denying that Republican judges believe the things they openly believe, and underplaying the significance of their own jurisprudential theories:

Much of the dissent seems designed to obscure the specific question that the Court has decided…

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?

This is all staggeringly disingenuous. It would be one thing if this was some minimalist majority opinion narrowly focused on a very particular set of facts. Thomas’s opinion is no such thing — it is maximalist, making it enormously difficult for governments to defend almost any gun control regulation, not least by ordering lower courts to ignore historical evidence that would support their constitutionality. The Court’s holding therefore has implications far beyond the holding of today’s case, making the first section of the dissent entirely “legitimate.” The fact that this particular law did not prevent the Buffalo is beside the point — a restoration of the federal ban on assault weapons might have, and the Court has now created a standard under which doing so would almost certainly be unconstitutional.

Of course, the broader anxiety reflected in the latest Daily Caller blog Alito has inserted in the U.S. Reports is his barely concealed fury that a completely illegitimate Court representing a party that has won the popular vote once since 1988 and can’t impose a radical and unpopular agenda on a majority of the country and get them to like it too:

Sorry, Sam — you’re getting most of what you want, but if you want approval or respect from anybody who isn’t also a neoconfederate hack you’re out of luck. Don’t worry, a few legal liberals will still feel the need to kiss your ass though:

Trust me — he doesn’t just want the big payday from the next company that wants to pave over Lake Tahoe, he really likes you!

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