On June 23, 2022, the Supreme Court handed down it’s Bruen decision. The third of it’s Second Amendment decisions, it clarified Heller and McDonald and mandated strict scrutiny review for future Second Amendment cases. It is often mentioned in the continuing gun debate, but virtually no one has read it. Perhaps it’s time to help with that.
The case was provoked by New York’s “may issue” law, which allowed the state to issue concealed carry licenses only to favored celebrities, the wealthy and those with political pull. Justice Clarence Thomas wrote for the majority:
After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community’ to carry arms in public.
Anti-liberty gun cracktivists did not want anyone reviewing the real history of the issue. The majority made clear past analytical approaches were lacking:
Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
New York, and other states, also attempted to ban guns by labeling every place a “sensitive” area where guns might be banned:
But expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below.
This is the money quote:
The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion.
Justices Breyer, Sotomayor and Kagan dissented:
The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.
In other words, “democratically elected officials” should have the power to ignore the Constitution because “gun violence” is such a serious problem. It’s not the Supreme Court’s job to discuss “the nature or severity of that problem.” It’s their job to determine if a law is constitutional. That’s the fundamental difference between the textualists and leftists on the court. The leftists adhere to whatever standard of analysis will allow them to impose Democrat policy.
NY Governor Kathy Hochul was exercised:
Graphic: Twitter post
And so was California Governor Gavin Newsom, who out of the right side of his mouth now tells us he supports the Second Amendment while out of the left side wants to ban AR-15s, “high-capacity magazines,” and other arms:
Graphic: Twitter post
Joe Biden’s Handlers were likewise upset:
Graphic: Twitter post
The Court handed down it’s Dobbs decision a day later, provoking equal outrage:
Graphic: Twitter post
The only weirdness attaches to people like Katyal who seemingly can’t understand the Second Amendment is a fundamental, unalienable, express right while abortion is not mentioned in the Constitution or its amendments. Roe was made up out of thin air by a prior Supreme Court who found that “right” in the emanations and penumbras gauzily floating about the Supreme Court building.
The Court’s three Second Amendment decisions have not ended the controversy and socialist/communist states continue to write unconstitutional laws restricting the right to keep and bear arms. They know these laws are unconstitutional. They know it will cost millions of taxpayer dollars to defend them, and they know that money will be thrown away when they inevitably lose, but virtue signaling and depriving Normal Americans who are no danger to anyone of their Second Amendment rights is who and what they are.
Still, for now, the Supreme Court majority largely decides cases on the Constitution rather than leftist ideology. For that, and Bruen, we can be thankful.
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Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor, retired police officer and high school and college English teacher. He is a published author and blogger. His home blog is Stately McDaniel Manor.