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Culture War Roundup for the week of October 2, 2023

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Clarence Thomas's Gun Control Snare

So the Bruen decision came out more than a year ago, and it has scrambled how courts deal with gun control laws.

Step back first. The way courts typically evaluate laws that putatively infringe on a constitutional right was through an analysis called strict scrutiny. Basically, take any constitutional guarantee ("Congress shall make no law...abridging the freedom of speech...") and add an "...unless it has a really good reason!" exception. This isn't an exaggeration. Courts were allowed to give the government a free pass on constitutional infringements provided the state's efforts were "narrowly tailored" and "necessary" to achieve a "compelling state interest".

But what counts as a compelling reason? Who decides which laws are narrowly tailored? It's judges, all the way down. For something like freedom of speech, there's a robust enough appreciation that you can expect a reasonable amount of skepticism among the judicial corps against efforts by the government to muzzle expression. In practice, strict scrutiny generally functioned as decently high threshold, unlike its contrasting rational basis test which practically was a free pass for the government to do whatever.

But what about topics a little more heated, like guns? Judges have been squishier and far more willing to accept the government's justifications that a given legal restrictions was "necessary". Hell, some judges even weaseled their way into ditching strict scrutiny in favor of the more permissible intermediate scrutiny. Judge VanDyke of the 9th Circuit lampooned this doormat reflex in his 2022 McDougall dissent (cleaned up):

Our circuit has ruled on dozens of Second Amendment cases, and without fail has ultimately blessed every gun regulation challenged, so we shouldn't expect anything less here. As I've recently explained, our circuit can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review.

The cases VanDyke cited illustrate the problem well. The 9th Circuit has ruled it's ok to require people to demonstrate either "good cause" or "urgency or need" to the government before they're allowed to carry a gun outside their home. Set aside whatever negative sentiments you might have about guns, and instead imagine the reaction if similar restrictions were imposed on newspaper licenses. Imagine having to convince a cop that you have "good cause" to start a blog. Constitutional guarantees are worthless if they're predicated on a government agent agreeing that your reason for exercising them is good enough.

The practice of circuit judges shrugging off challenges to gun control laws with "I don't know man this seems totally reasonable to me" went on for several years, and I can only imagine it pissed off the pro-2A wing of the Supreme Court. Sure, Trump's appointments eventually meant they had the numbers on their side and so a very favorable 2A opinion was inevitable, but a stern rebuke of "We really mean it this time!" didn't seem like it was going to work in getting the circuit courts to stop fucking around.

So when they finally got their chance, SCOTUS tried a different approach. Instead of just triple-underlining and double-highlighting the words STRICT SCRUTINY, Clarence Thomas writes the majority opinion that created a brand new analysis wholly unique to the Second Amendment: gun control laws can only be constitutionally permissible if they're consistent with "historical tradition of firearm regulation." Any law being evaluated must therefore have a historical analogue, and the closer the analogue was to the year 1791 (when 2A was ratified), the better.

I was thrilled with Bruen's result, but puzzled by its reasoning because it seemed to just recreate the circumstances that led to the "fake strict scrutiny" problem. It turns out Bruen had way more of an effect than I anticipated. Clarence Thomas is a fascinating figure in many ways, in part because he's America's most powerful black conservative, who just happens to draw direct inspiration from the black nationalism Malcolm X espoused. I have no idea if this was intentional, but Thomas laid out a beautiful carpet of caltrops that the government couldn't help but step on over and over again.

What followed Bruen was a litigation maelstrom. Government attorneys across the land scoured dusty historical tomes, in search of whatever they could get their hands on and use as justification. The first problem they ran into was there just weren't that many laws on the books around the time of the Founding, let alone laws that specifically governed firearms. Generally speaking, Americans were free to strut about town with their muskets in tow, no questions asked. The lawyers had to cast a ever-wider net to snag anything relevant, desperately expanding their search way beyond 1791 to include things like an English prohibition on "launcegays" from 1383. When they did find timely laws, they ran into a second and far more pressing problem: the laws regulating firearm possession were...awkward. Really awkward.

Judge Benitez overseeing the ongoing Duncan case ordered the state lawyers to compile a list of every single relevant law they could find, and the 56-page spreadsheet they created is incredible. It's not surprising to find governments actively disarming disfavored groups, it's another to see the arbitrariness outlined so starkly. Modern gun control critics have regularly pointed out how skewed enforcement can be, particularly along racial lines. And because Bruen requires historical analogues, lawyers defending gun control restrictions had no choice but to immerse themselves unhappily within its sordid origin story.

Numerous early laws specifically prohibited only "negroes, mulattos, or Indians" from carrying firearms (1792 Virginia law, 1791 Delaware law, 1798 Kentucky law, etc.), or specifically targeted only slaves (1804 Indiana law, 1804 Mississippi law, 1818 Missouri law, etc.). California had it out particularly for those with "Spanish and Indian blood" (aka what the law called 'Greasers') and prohibited them from possessing firearms in 1855. These are all laws favorably cited in courts today.

When tasked to defend §922(g)(3), the law that prohibits anyone who is an "unlawful user" of a controlled substance from owning a gun, government lawyers tried their best with what little they had. The closest analogues they could find were colonial laws that prohibited actively drunk people, "dangerous lunatics", or what they termed "unvirtuous citizens" from possessing a gun. And you know that's BASICALLY the same thing as preventing the occasional marijuana smoker today from ever having a gun. The judge wasn't convinced.

After languishing in a stalemate for decades, the legal precedent around gun laws has dramatically changed in very quick order thanks to Bruen. Prohibitions on drug users were struck down, a (limited) prohibition for non-violent felons was struck down, and so were prohibitions on individuals subject to domestic-violence restraining orders (for now...). Courts are normally slow to move, but these developments have happened at blazing speed, and it's only the beginning as there's still plenty of ongoing litigation.

None of this means that gun control advocates have given up, far from it! @gattsuru has extensively catalogued numerous ways anti-gun politicians and judges putting in absolutely heroic efforts to gum up the machinery, however they can. Judge VanDyke publicly accused his colleagues on the 9th Circuit of some robe & dagger procedural shenanigans putting the thumb on the scale in the Duncan case. Meanwhile, legislation of dubious constitutionality gets passed faster than it can be struck down and the NYPD is somehow approving fewer gun permits than before (maybe because their approval stamp fell behind a desk, or something?). The efforts Gattsuru highlighted are definitely a hurdle but we'll see if they're the beginning of a new stalemate, or just desperate cadaveric spasms. For now, I'm going to continue enjoying the spectacle of government lawyers arguing with a straight face to a judge that pot smokers are the historical equivalent of dangerous lunatics.

All interesting enough, but Dick Heller still doesn't have a carry license twenty years after filing his lawsuit and fifteen after winning it, so it's all navel-gazing.

The Supreme Court does not enforce their decisions, and the lower courts are in full revolt.

They can lose every case and yet the law of the land remains in direct opposition to the SC decisions.

It's almost as if the court system is as much LARP as congress.

To be fair, Heller did get a carry permit in the aftermath of Wrenn v DC, which struck down may-issue permits in DC. He can't carry anywhere meaningful or with the gun he originally wanted back in Heller I, hence why he's now on Heller IV fighting both ridiculous limits on carryable arms/ammo and an overly broad and unclear definition of sensitive places, and the permit process is both very slow and very expensive.

To be fair, if lower courts were this resistant to "civil rights" supreme court cases, the national guard would be occupying city hall in most major cities.

Either that or we'd still have slaves in the most populous parts of the country.

Once you've won multiple cases at the Supreme Court level and still aren't getting what you want, you need to admit the process is not going to work and will not do it for you. But conservatives will not admit that the process doesn't work, not ever. There's never a reason to go outside the process; if they thoguht there were, they wouldn't be conservatives.

I don't hesitate to say that the Bruen decision was a masterstroke, especially in the context of advancing an Originalist interpretation of the Constitution.

It 'sneaks' in the idea that the rules mean what they people who wrote them intended them to mean, since presumably the people who wrote the Constitution did so with the intention of making it comply with those other rules and regulations that existed around the time all of this was written, and further if they tolerated a particular rule after the Constitution was ratified, you can certainly argue they didn't intend for the Constitution to contradict those rules, regardless of any ambiguities that may exist.

I'm more of a pure textualist myself, but I do agree with the idea that the rules were written with a particular meaning in mind, and that the proper way to 'change' the rules is... to follow the procedure for changing them. So taking the approach that the rules can just be reinterpreted over and over again, especially in ways that generate greater ambiguity is, in my view, completely antithetical to the idea of having written rules in the first place.

And just about the only way to reduce ambiguity is to ground your interpretive standard on something firm enough to form a valid premise for further legal reasoning. Yes you will never be able to reach the perfect a priori premises from which all else will flow, but anything that doesn't at least directly build off of the original text is way too ad hoc to provide a predictable/reliable jurisprudence, especially as your system of interlocking precedents gets more complex. In my genuine opinion, anyway. This is why I agree with Dobbs overturning Roe irrespective of my beliefs about abortion.

So in short, Bruen's requirement that government has to demonstrate that their restrictions on firearms rights are in keeping with traditional, long-accepted regulations going back to (ideally) the original founding of the country puts the burden of proof in the right place. The State doesn't have a heavy burden, it's just a very restrictive framework to work within... which to me is the point of having those restrictions.

And if we (i.e. the people of the country) can't agree that looking at the rules in place when our Nation was formally founded is at least a guideline for figuring out what the actual words in the document meant, then we're fundamentally questioning the validity of the document itself. Which is fine with me, but for some reason people want to maintain the validity of the document whilst changing the rules it contains to suit their purposes.

If Bruen is carried through to its logical conclusion, we should probably expect that we'll be getting legal machine guns (new ones, not grandfathered) in the not-too-distant future.

If the logic behind Bruen is applied to other aspects of the Constitution, a lot of precedents that are nearly a century old are potentially on the chopping block. And oh boy Justice Thomas seems positively GIDDY to start swinging that axe.

And being clear, I think this creates an interesting double-bind if you want to keep some of those precedents in place. "You can't touch these cases, they've been around for decades!" is easily rebutted by "the standard we're now using to examine those cases goes back a whole century or so before those cases were decided, so if age is the question, this standard wins." You'd have a hard time arguing "the older a judicial precedent is the more deference the Court should grant it!" AND say "but times change and the law has to change with it."

Hence the progressive Justices tend to appeal to more nebulous concepts when reaching a decision, allowing for reconsideration later.

whilst changing the rules it contains to suit their purposes.

You seem to be implying that jurisprudence that takes a narrow view of the rights afforded under the 2nd amendment is somehow a recent innovation or reinterpretation, but the collective rights interpretation runs back for almost two centuries. See Aymette v. State of Tennessee (1840), which upheld a ban on the concealed carrying of weapons - in that particular case a knife. The key here was no just the militia but what 'bear arms' could reasonably be considered to include;

To make this view of the case still more clear, we may remark that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides "that no citizen of this State shall be compelled to bear arms provided he will pay an equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he had a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

See also State v. Buzzard (1842), City of Salina v. Blaskley (1905) and US v. Adams (1935).

That's not the collective right interpretation though. It's the Miller standard of bearing arms useful for war, orthogonal to individual versus collective. Meanwhile some nobody Lysander Spooner writing in 1856 noted the right as individual and for personal defense as much for militia service. Or Charles Humphrey writing in 1822 "that in this country the constitution guarranties to all persons the right to bear arms." Warren Burger was a tool.

On reflection my comment was poorly written, but both Aymette and Buzzard cover collective rights no?

From Buzzard (Ringo);

That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown: consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide.

The question of arms useful for war is closely connected to this because if the purpose of the 2nd Amendment (or state equivalents) was collective then it would provide no protection for arms both not 'borne' in fact and not able to be borne under any circumstances.

Lysander Spooner

Indeed so, my point here is not to suggest that there is no equal tradition of, and evidence for, an individual right interpretation, merely to contest the point in the comment I replied to that more restrictive interpretations being deployed now are simply innovations that not even their proponents believe are consistent with the Constitution. While we are here though, see the reverse case from Benjamin Oliver, Rights of an American Citizen (1832);

The provision of the constitution, declaring the right of the people to keep and bear arms, &c., was probably intended to apply to the right of the people to bear arms for such purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.

If Bruen is carried through to its logical conclusion, we should probably expect that we'll be getting legal machine guns (new ones, not grandfathered) in the not-too-distant future.

That's a very Laconic "if". We haven't seen any such challenges. Nor challenges to laws against interstate sale of firearms (which are definitely not historically supported), nor any of the other various Federal laws. Bruen was obiter dictum from the moment it was issued; almost no one will get relief from it.

Oh good point bringing up interstate commerce.

Justice Thomas has made his thoughts on the breadth of the Commerce Clause known as well:

That's not to say he gets what he wants, but you're thinking in the correct direction for where things might go!

Several cases have raised the claim that the NFA is unconstitutional but they generally haven't gone anywhere. In particular the AutoKeyCard case raised it though doesn't rely on it (unsurprising given that Matt Larosiere is one of the defense attorneys in that case) but that one lost in an odd way related to jury decisions on definitions.

And that's what's going to keep happening. All attempts to challenge will end up in a procedural morass or get dismissed based on other issues, to avoid courts (even, perhaps especially, conservative courts) having to confront the fact that a "right to keep and bear arms" means people do in fact get to have guns. Until the Court swings back anti-gun at which point the RKBA will be extinguished once and for all.

Numerous early laws specifically prohibited only "negroes, mulattos, or Indians" from carrying firearms (1792 Virginia law, 1791 Delaware law, 1798 Kentucky law, etc.)

Seems like the practice of declaring the Constitution says whatever you want it to say, text be damned, is a longstanding one. "Unless you're black" is a heck of an asterisk.

It took about 7 years for a sweeping "don't criticize the government" censorship bill to get passed (Sedition Act), though at least it was widely unpopular and they got rid of it.

Ah, our poor silly ancestors... if only they'd known the modern trick of saying they were keeping the public "safe" from "misinformation".

It's more that the OG Bill of Rights was only enforceable against the Federal government, not the States.

It is more likely than not that the Reconstruction Congress intended the privileges and immunities clause of the 14th amendment to make the Bill of Rights enforceable against the States ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") but the corrupt pro-South Supreme Court ruled otherwise in the Slaughterhouse Cases. Rather than doing the sensible thing and just overruling Slaughterhouse alongside Plessey as bad Jim Crow law, the Civil Rights era SCOTUS used substantive due process to enforce these rights - as late as 2010 SCOTUS rejected the argument that the 2nd amendment was directly enforceable against the states under the privileges and immunities clause. So there is a whole line of silly doctrine that takes the 14th seriously while claiming not to.

In my view, there is a good originalist argument against incorporating the 2nd amendment against the States. The corresponding argument against incorporating the Establishment clause of the 1st amendment has been endorsed by Clarence Thomas in some of his dissents and concurrences. Based on the text, the original purpose of the 2nd amendment was to protect the State militias against Federal interference. (This is perfectly compatible with the idea that the 2nd amendment created an individual right enforceable against the Federal government - State militias were not required to and often did not keep membership rolls at the time, so many militia members were "just private gun owners" on paper). Incorporating the amendment against the States takes away the States' right to regulate their own militias, so it changes the nature of the right protected, whereas incorporating a right like trial by jury only changes the scope of the remedy available. Similarly, the Establishment clause was intended to protect State-level established religions (like Massachusetts puritanism) from Federal interference, not ban them.

Obviously nobody is going to make that argument, because it gores both sides' oxen.

You present a cogent argument for narrowly interpreting 2A. For this to make sense though, you have to interpret "the right of the people" in 2A to really mean "the right of the States" and that's when you run into big problems. If you read the rest of the Constitution and the Bill of rights, there's multiple references to "the people" and none of them make sense with that substitution. Consider 1A ("...or the right of the States peaceably to assemble") or 4A ("The right of the States to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures") or the neglected 10A which explicitly distinguishes States from the people. It seems odd to me to think that the Founders were willing to throw casual usage of the people all over the place, but when they wrote 2A they meant it in this very specific way and didn't bother putting an asterisk or anything.

I agree with you that any approach to interpretation which starts with the enacted text has to conclude that “the people” in the 2A creates an individual right enforceable against the Feds. The question is whether the non-enforceability of the 1789 2A against the States is about the nature and purpose of the right (in which case it still isn’t enforceable against the States) or about the nature of the remedy at the time of the founding (in line with other rights, enforcement of the RKBA against States was supposed to be based on the RKBA clauses in State constitutions, adjudicated in State courts). In the latter case, it becomes enforceable against the States as a result of the 14A.

The other way of thinking about it is about the various founding-era state legislatures who ratified the 2A at the same time they were passing laws against free blacks owning guns. Were they blithely passing legislation that violated their own understanding of the RKBA because they were unprincipled racists, or were they regulating their own militias in an obnoxiously racist way based on a sincere view of the powers they actually held? AFAIK none of the other founding-era laws restricting the rights of free blacks were obviously inconsistent with the Bill of Rights as the gun laws were under the modern Red Tribe understanding of the RKBA.

Seems like you should probably look to Scott v Sandford for some contextual clarity for the time about laws restricting rights as applied to people who may not have been considered entitled to them. The actual decision is in the national archives and should be read not summaries or opinion pieces.

Your second paragraph is, genuinely, the first time I've heard a remotely coherent explanation for how someone could read the text of the Second Amendment and conclude that state-level firearms restrictions are permissible. I realize this is incredibly naive, but I consistently just kind of forget that Bill of Rights simply didn't restrict states in the way it does the federal government. I suspect that you're correct regarding this not getting brought up much because of implications for other rights.

For the second amendment and local gun restrictions it would perhaps fall under the interstate commerce clause. But I haven’t seen others make this argument on local restrictions.

If the Feds can’t ban guns and they are a part of commerce then it would probably have interstate commerce implications. Being that the interstate commerce clause applies to just about everything then that would seem to restrict the states on 2A.

If we had a narrow commerce clause then I would think States could ban you from having a machine gun on broadway but not ban you from shipping machine guns. But the current usage seems to be if there is any commercial interests like a gun manufacturer in Virginia making more money if a buyer exists in NYC it would still seem to give a way to prohibit any local regulations.

Fascinating! I have no idea if it's true or not but I love it as a theory.

In Washington we had a judge rule that magazines aren’t firearms and so aren’t subject to Bruen.

Every time I see this kind of behavior I wonder if the judges reflect on the intended purpose of the second amendment and proceed to ignore the constitution anyway. A refreshing of the tree of liberty would surely swamp any possible deaths averted from magazine restrictions and assault weapons bans.

But does overturning the ban on domestic abusers getting guns really do a lot to aid that original purpose?

What percentage of the revolutionary militia were we expecting to be habitual wife beaters, exactly? I think we'll be ok without them.

That's my position, if someone proposed a bill that would actually decrease gun ownership a significant amount - say, 10% - then I'd be onboard with saying 'this is a threat to the ability of 2A to protect us against tyranny'.

But AFAICT, most of the skirmishes are over very limited laws that make it harder for criminals to get guns, or impose inconveniences that annoy gun owners but don't stop them from being gun owners.

What percentage of the revolutionary militia were we expecting to be habitual wife beaters, exactly? I think we'll be ok without them.

Approximately all of them, based on current standards of domestic violence. Minor physical punishments (slaps, spanking etc.) we're common for men to apply to their wives if they misbehaved, just as they were applied to children. You'll have to cast aside more than just the militiamen.

I think the issue is more about being able to ban firearms from some people without having to convict them of a specific crime and thus having a trial. If I don’t like you, I can file for a restraining order, and if I’m successful, then I can essentially get the government to take your guns and forbid you from purchasing more. And thus you lose your rights but don’t get a defense.

I’m especially concerned where it concerns mental health simply because there’s no real process to remove that designation once you have it. Worse, it’s a very strong incentive to avoid contact with mental health services if you think you might need them but also don’t want to give up the guns for various reasons.

But AFAICT, most of the skirmishes are over very limited laws that make it harder for criminals to get guns, or impose inconveniences that annoy gun owners but don't stop them from being gun owners.

The biggest skirmish is over assault weapons bans, whatever those are. Others are over things which, as you note, impose inconveniences that annoy gun owners and do nothing else. I can’t think of anything the gun controllers have proposed which would make it harder for criminals to get guns, however.

That is the big thing for me. I’ve never seen a proposal that would get guns out of the hands of those who commit the vast majority of gun crimes. Even moreso a lot of the lefties are anti-gun and against putting black people in jail. And to cut the murder rate you would be putting a lot of black people in jail for gun possession. Some of them are probably honest that they would get rid of the entire second amendment. Anything that is proposed might cut down on one crazy mass shooting a year but be a huge annoyance to legitimate gun owners.

But AFAICT, most of the skirmishes are over very limited laws that make it harder for criminals to get guns, or impose inconveniences that annoy gun owners but don't stop them from being gun owners.

I think this is a bad model, dependent on either reframing the 2nd Amendment such that owning a muzzleloader and five rounds, without the ability to carry them anywhere but one specified range and gunsmith, counts. Just of matters currently under consideration before the Supreme Court:

  • NRA v. Vullo (prev here, background here) is about a dedicated effort to use regulatory systems against the speech of a private organization.

  • Gazolla v. United States has a state that bans carry so broadly that its own politicians said people might be able to carry on some sidewalks, requires a permit that didn't exist for semiautomatic rifles, and does 'background checks' for ammunition that don't work (and probably violates federal law doing so) -- which it is not the only one doing.

  • Nichols v Newsom is a complete ban on open carry, at the same time that the state has many jurisdictions ponderously slow or simply nonresponsive for concealed carry permits, as well as a 1000 ft buffer zone for any carry near any school.

  • KCL v. Eighth Judicial is a product liability case that threatens any ammunition, firearm accessory, or related material business.

Even for cases that look like they're about convenience or criminals often are concerned about broader impact:

  • Garland v. VanDerStock, Garland v. Cargill, Guedes v. ATF, and Garland v. Hardin all involve Scary Guns That Aren't Popular, but they also involve the federal government retroactively banning guns or firearm accessories that have been legal (and authorized by the ATF!) for decades, without compensation, and with no limiting principle.

  • Rahimi involves the sort of dangerous criminal that people expect to be a big issue (and is notably brought by public defenders rather than gun orgs), but Garland v. Range is about making it harder for a food stamp criminal to get guns. Previous cases have disqualified a person for a 33-year-old conviction for selling counterfeit cassettes; some state laws have tried to provide increasingly restrict background checks to such a level that New York's current system does not even have a full list of disqualifying traits.

And when you go broader there are far more concerns.

But does overturning the ban on domestic abusers getting guns really do a lot to aid that original purpose?

Unless I'm misremembering, the actual ruling was regarding domestic violence restraining orders. (PDF WARNING). Which is to say, people who have not been tried for or convicted of the crime of domestic abuse/battery, but rather where there's someone who can convince a judge that they are in danger of violence from this person, and thus an injunction to keep that person away is a necessary remedy.

So a person against whom such an injunction is granted is NOT a convicted criminal just because the injunction was granted.

I think this is an important distinction, as it also brings up the need for due process protections. The standards for proving a domestic violence injunction are much lower than for obtaining a criminal conviction, and they're usually considered a civil matter (i.e. it is the person acting on their own behalf, not the state acting on behalf of society, no prosecutor is even involved). An individual can request that a given person be forced to stay away from them if they're a threat, but it makes much less sense for a person to demand that that someone else must sacrifice additional rights in their entirety.

So a law which removes ALL of a person's firearm rights on the sayso of a single person is a pretty serious restriction to impose on somebody who has not been arrested, much less convicted of a crime.

In terms of protecting people's rights from infringement without some proven criminal conduct I think it does help that original purpose, yes.

Indeed, an injunction that takes away a person's gun rights doesn't provide much extra protection to the alleged victim. If that person wants to ignore that restriction and hurt someone, doubtful that piece of paper will stop them. So I don't think victims' safety is hampered much by the firearm ban.

If the state can convict the person of domestic violence crimes, then we're in the world of violent criminals, and all kinds of punishments, including prison and removal of gun rights are on the table.

I accept all of that as good critiques of the law, and perhaps sufficient reason to overturn it if it can't be reformed to meet those objections.

But I don't think it addresses my point, which was that these laws don't affect enough people to meaningfully interfere with the 'state should fear its people' value of 2A.

The whole thing about "fundamental rights" as an ideal is they are supposed to protect every person in an individual level, and not make it so the state can get away with passing unconstitutional laws so long as most of the population will never run afoul of them.

If you were SCOTUS you surely could promulgate a standard setting some threshold. "Unless this law interferes with 5% of the populations exercise of their rights, it is presumptively non-infringing."

I, for one am concerned about the gamesmanship by the states this might encourage (worse than they do already!) And other possible second-order effects.

That's a rather Borkian view. The 2nd Amendment says "..shall not be infringed", not "..shall not be removed completely". While punishing a Klan leader for saying "it's possible that there might have to be some revengeance taken" probably doesn't materially restrict the range of political discourse in the United States, it's still an abridgement of freedom of speech; by the same token some gun law which prevents some people from having arms but doesn't wholesale remove the right is still an infringement of the right to keep and bear arms.

Sure, I was replying to a specific comment making that specific argument.

While yes Rahimi is about a conviction under 922(g)(8) for possession while under a DVRO, it's complicated by Rahimi being an exceptionally unsympathetic individual which makes it politically very easy to paint his defense as a bad thing. The firearms that he is being charged with possessing in violation of the order were discovered while his premises were searched under warrant for other crimes.

DOJ said he has been accused of taking part in at least five different shootings over the course of six weeks between December 2020 and January 2021. Those incidents ranged from Rahimi shooting at someone he’s also accused of selling Percocet to, shooting at another person he cut off in traffic, and firing a gun into the air at a Whataburger because his friend’s credit card had been declined.

The DVRO was issued Feb 2020 for context.

Why is this an argument for disarming him through a DRVO, rather than an argument for jailing him pending inescapable felony conviction and a decade or more in prison?

You have your timeline confused. He was already under the DVRO before those other crimes occurred. While doing the needful in investigating those other crimes they found evidence for an easy conviction of possession of a firearm while under a court restraining order. His defense attorney is using Bruen to dispute that charge specifically. The case before SCOTUS doesn't actually touch those other charges at all.

To clarify the actual argument is whether or not the federal crime of possessing/acquiring a firearm (that interacts with interstate commerce but that's basically a fig leaf) while under a court issued restraining order is constitutional. This gets abbreviated to whether or not a restraining order with its lower standards of proof and potential one-sided issuance is sufficient and constitutional to deny someone their constitutionally guaranteed right to keep and bear arms. Shorter: restraining orders disarming gun owners constitutional yea/nay?

And his record was clean before the DVRO?

I appreciate the correction, and I guess the argument is that under the proposed system, they could have disarmed him when the DVRO went through? But if his record was not clean prior, that just pushes the question back: the sort of person who fires warning shots over a credit card declined at Whataburger is the sort of person who should not be on the streets at all, and this is probably knowable before he shoots up a Whataburger. Disarming him (How? By who? What if he arms himself again?) but leaving him free is an entirely insufficient response.

And his record was clean before the DVRO?

As far the record exists in the case yes. Notionally he should have been disarmed when the DVRO was issued. The practical application of that would require the court/police to be aware of existing firearms (the person asking for the order might be aware, the person accused is not exactly incentivized to bring up their ownership) and then proactively disarm (expensive, dangerous) rather than simply ordering it be done. Keeping in mind that the DVRO was under state court and the possession is a federal offence. In some jurisdictions compliance can also be done by storing firearms at a club/FFL rather than having to sell off/surrender them to the police so even verifying compliance with the order has friction.

It shall be unlawful for any person[] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .

As for acquiring, the only thing stopping a 4473 from going through after the order is in effect is if the court that issued the order is tied into the state background check system or the national one to catch someone lying on question 21.i or the person under the restraining order answering that question truthfully. (All of question 21 on that form is basically an IQ check or cya documentation used to prosecute if you lie on it and then publicly admit to doing things that conflict with your answers on that form as in the recent case of a rather famous failson.) And of course it's entirely possible to acquire a firearm without a 4473 and in those circumstances the ability to verify that someone is not restricted is rather limited.

To get around that second problem some states have made it illegal to transfer a firearm without a 4473. And the way they enforce that has been... catching someone after the fact with incontrovertible proof they violated that law. That proof being rather difficult because most of those universal background check states still have various exemptions for gifts/inheritance/loans to avoid awkward things like having to stop at an FFL to let your friend "possess" your firearm during a day at the range. Yesterday's reasonable exception is today's loophole.

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Haha yeah that is about the platonic ideal of the "violent criminal" type who really should not be trusted with firearms and is without a doubt a danger to society in general and the subject of the DVRO in particular.

But there's a quote from Supreme Court Justice Felix Frankfurter that I often recall when reading these decisions:

"It is a fair summary of constitutional history that the landmarks of our liberties have often been forged in cases involving not very nice people."

And that's fundamentally because the common law is forged out of conflict. Someone ran afoul of and challenged a given law's restrictions. And nice, peaceable citizens are far less likely to find themselves in conflicts with the state than... that guy.

So while strategically you want to mount an appeal using the most sympathetic parties possible, in practice the proof that "the law applies to everyone" is to bring up those unappealing miscreants and, holding your nose all the way, defend against the violations of their rights the same as anyone else's.

That the Supreme Court doesn't decide cases based on their empathy for the parties or their victims is a good sign that they're doing their best to be 'impartial.'

Far have we strayed from the origins of LW. Inconveniences are hardly trivial and many of them just coincidentally happen to most inconvenience the point of entry into the funnel of gun culture. Good faith at this point has to be proven and compromise has to involve give and take, not compromising on only taking 50% instead of 100% of the original ask.

I mean, I agree that a priori you can expect systemic inconveniences to have large downstream effects, sure, that's something you should always check for.

But the best way to check for that is to actually look at the data, and as far as I can tell, gun ownership rates haven't dropped in the last 20 years, despite all the measures passed in that timeframe.

It just doesn't look like any of these recent measures have actually decreased gun ownership, so I don't think the argument that they are disarming the citizenry and making them weak to tyrants holds water.

There are lots of other good arguments against these measures, just not that one, AFAICT.

This is a weird metric to focus on. Gun control measures tend to cause gun sales to spike, even as they restrict the citizen's ability to wage war.

Prior to our magazine ban going into effect I bought a bunch of magazines for guns I didn't even own, but might want to in the future.

This is not my area of expertise, but 'People buy more guns and become less able to wage war' seems inherently self-contradictory to me. Could you explain what you mean in a bit more detail?

You’re going to have a much harder time achieving fire superiority with a fixed magazine bolt action rifle than with a detachable magazine semiautomatic.

With inferior firepower, you’ll need far more men to keep the enemy ducking instead of returning fire.

Not the individual you replied to but making things illegal and successfully restricting them neuters what people have access to, even if more people decide to pursue that thing.. Californians can own guns, but some of their options end up being rather pitiful.

Even if a gun law encourages more people to buy guns- the guns they can buy are suddenly rendered more impotent. As an extreme example, if everyone were given a musket a day before guns became impossible to buy legally from then on, more people would have guns, but people's ability to wage war would be hampered quite severely.

The data is garbage. Most of the restrictions are going to be state level and most data is national. Most of the data is self reported surveys about a politically charged topic where people have had a strong incentive to lie since the 90s and unlike an election where you can validate something like the shy-tory effect in polling, there is no ground truth data point to calibrate against. Sales cannot distinguish a new owner from an existing owner buying their 30th firearm. (That first versus 30th is a classic example against waiting periods as implemented since they rarely/never allow someone who has already purchased a firearm previously to opt out which is nonsensical given the justifications for them.) Keep in mind also twenty years ago the AWB was still in effect, while forty years ago it didn't exist and sixty years ago the GCA didn't even exist so firearms could be mail ordered and there were no background checks then. Never mind the demographic changes over decades from urbanization and the downstream cultural effects. I'd wager that relative to sixty years ago there are far fewer gun owners per capita.

The intended purpose of the second amendment was to protect the States' right to regulate their own militias, not to abolish it - the people who wrote the Bill of Rights were either anti-Federalists or Federalists negotiating a compromise with them and would have been horrified if they thought they were allowing Federal courts to strike down State gun laws. The Heller line of cases say that the due process clause of the 14th amendment created an individual right analogous to the 2nd amendment but enforceable against the States and are probably correct, but this isn't an argument based on 1789 original intent.

The intended purpose of the second amendment was to protect the States' right to regulate their own militias

Explain. My understanding has always been that there is but one militia here and that it "consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard".

I can't wait for another judge to rule that an inkjet printer isn't a press, therefore (many) newspapers aren't covered under the First Amendment. Or that we aren't currently in a "time of peace", therefore the Third Amendment isn't in effect. Or maybe we can keep violating the Eighth Amendment until those punishments aren't "unusual" anymore, then they would be retroactively permitted.

So the Bruen decision came out more than a year ago, and it has scrambled how courts deal with gun control laws.

No, it hasn't. I still can't legally buy a gun in New Jersey. Nor can I legally carry one. Nor have >10 round capacity magazines been made legal. Nor is it legal to carry even with a permit in most of New York City, which (as you note) has issued even fewer permits than it did before Bruen. There's no way for a civilian to carry in either state even with a permit without risking a felony, because so many places are off-limits. And the courts have shown no appetite for overturning any of this, instead slow-walking them and doing things like requiring a very strict definition of standing for each particular provision they want to challenge.

That one Oklahoma Federal judge has issued a decision that will likely be overturned by even a conservative court of appeals doesn't change that. And none of this is "blazing speed". Blazing speed is "gay marriage after Obergefell", not gun rights after not one but three Supreme Court decisions that are largely ignored.

I agree with you that blue states and jurisdictions continue to try their hardest to gum up the works, I cited several examples in my last paragraph. Do you think any solution is possible?

For me I think the problem is that none of the conservatives on the court really wants unrestricted firearm ownership. Obergefell's ruling is very simply stated: you cannot deny marriage to gay couples. In contrast there is no similarly bright line rule applicable to 2A. Bruen still requires a meandering and torturous analysis about finding historical analogues and then squinting to determine if it's close enough. On top of that the opinion is littered with arbitrary exceptions about "sensitive places", and while Bruen mostly dodged the question about felon-in-possession, other courts seized upon the Heller language about "law-abiding citizens" to imply that felon-in-possession laws are still valid.

You could issue a ruling that just says "No one can ever be prohibited from possessing a firearm" and "No places can ever prohibit possessing a firearm" and that wouldn't have any ambiguity at all. Except there's no appetite for allowing criminals the right to open-carry in courtrooms, and so we're stuck with this twisted flowchart instead.

I agree with you that blue states and jurisdictions continue to try their hardest to gum up the works, I cited several examples in my last paragraph. Do you think any solution is possible?

I think it depends a bit on what you call a 'solution'. I don't think (and don't think it would even be 'fair') were Heller or Bruen to result in completely unrestricted firearm ownership. Obergefell lead to Bostock, but it wasn't written in stone the day Obergefell was announced. Hell, there are a lot of restrictions that I think are legitimately within the range of political discussion.

On the other hand, I think these cases absolutely, by central holding and by dicta, prohibit arbitrary restrictions on bare possession or carry of firearms in public places, respectively -- there's a reason so much lower court massive resistance depends on and actively cites the dissents. Yes, there might be some quibbling about how much Bruen breaks out 'sensitive places', but we're not just (or even mostly!) seeing examples close to "sensitive places such as schools and government buildings", but rather ones close to New York City's argument of all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available” that Bruen explicitly rejected. Several areas have done so to hilariously aggressive extents, or required ridiculous fees (sometimes while violating state law!), or with longer-than-year delays, or required a permit per gun (sometimes with total limits), or a thousand similar things. There have even been many restrictions that violate other constitutional principles.

Which... I don't expect people to play nice. I'd have more respect if these jurisdictions weren't making these rules, or heavily anti-gun judges were treating Bruen even by its own strict text, but we have seen several decades of people doing (if slightly more measured) futzing around at the edges for matters like free speech zones or abortion restrictions or gerrymandering cases.

But we've also seen a few dozen cases of people doing those matters and getting slapped down near-instantly, and in many cases the more extreme the gamesmanship or the more overt the intent to defy SCOTUS (or just appeals courts!) the more courts have been willing to step in early and given other expansive rulings. There are some exceptions -- the Texas SB8 law was very much made so that it would require a massive break from normal processes to make an early ruling, even compared to typical interventions -- but for the most part they are exceptions.

By contrast, that doesn't seem to have happened almost anywhere, here or in a number of Red Tribe matters. Several laws on matters of age restrictions or permit delays or gun violence restraining orders have been constructed such that they can not possibly be heard to even appeals level, nevermind SCOTUS, which should drive Robert's supposed anti-gamesmanship instincts up the wall, and there are several well-established exceptions (some, like those that apply for GVROs, which are favored)... and they haven't. In some cases, even as SCOTUS was the last resort before final closure of a case. We don't see much progress by the shadow docket, by the limited available interlocutory appeals, or what have you, nor were any nearby case to Bruen summarily reversed.

Some of that's principles. I'm glad, for example, that Thomas has not suddenly developed a strong lust for national preliminary injunctions.

But a lot of it's pretty clearly not. I don't think this points to SCOTUS being hesitant about a clear standard giving convicted felons concealed carry permits, in no small part because this issue is present in extremely constrained cases. My guess is that Roberts, at minimum, is highly aware of what could charitably be called the "dignity of the court", and more realistically be called the New York Times cocktail circuit, and he and at least a couple others are intensely aware that even the most minimal and sanely-uncontroversial decisions they sign on would become A Cause Celebre.

Thomas's "text, history, and tradition test" (and Kavanaugh before his appointment, and VanDyke and Butamay had pushed it as well pre-Bruen) can be seen within that framework. Not that they're surprised (maybe disappointed) that anti-gun states have been willing to lunge to and swallow the most racist and sexist and otherwise bigoted laws, or even that lower courts will condone them doing so, but when the case goes up, there'll at least be a Scylla to the Charybdis.

But I'm not as optimistic as you are on that. I've been wrong before, as Bruen itself evidences; maybe as we get away from the COVID years and as lower courts have some percolating information, they'll come down like a sack of hammers. Yet instead we're seeing fewer cases with cert granted, not more. Nor has this particular sea monster lead to awful publicity and meaningful impact in the past, as evidenced by how long after the yearbook drop that Governor We-Still-Don't-Know-If-It's-Blackface-or-KKK-Hoods lasted without any serious challenges from the left because of it.

Excellent pushback as always! There is indeed active belligerent resistance. The reason I am still hopeful is that prohibitions like the felon-in-possession were treated as sacrosanct for decades and had virtually no judges willing to even entertain the notion. I know the bar is low but the fact that the edifice is being chipped away even for bad optics cases like someone subject to a DVRO is groundbreaking stuff. I would have never predicted that to be on the table a few years ago.

What you're missing is the DVRO case is not the edifice being chipped away. It's an invitation for higher courts to reverse or limit Bruen. The idea being that you start from the position that any decision that allows nasty defendants like this one to win must be wrong; therefore, some limit must be found to Bruen which makes it wrong.

Maybe! I don't know what the future holds or why SCOTUS decided to take this case so quickly after Bruen. If the goal of the pro-gun Justices was to strike down the DVRO ruling, it highlights the absence of a coherent position on this issue. I'm against categorical prohibitions (like banning all felons from possessing a gun, no matter how old or non-violent their charge is) but open to individualized prohibitions (like disarming someone experiencing psychosis) and this would actually be in accord with some early history of gun prohibition in this country. I'm not sure the pro-gun Justices are willing to bite the bullet on this one, so I won't be surprised with future 2A rulings that are the equivalent of "guns are a right, but not like that!"

Maybe! I don't know what the future holds or why SCOTUS decided to take this case so quickly after Bruen.

It's very suggestive that they took Rahimi, which went pro-gun, rather than any of the various cases where the lower courts have been foot-dragging. IMO, it signals they're going to backpedal.

I agree with you that blue states and jurisdictions continue to try their hardest to gum up the works, I cited several examples in my last paragraph. Do you think any solution is possible?

The solution will be that the anti-gunners gain control of the Supreme Court and interpret the 2nd amendment into oblivion, and the lower courts (including more pro-gun ones) fall into line. Everything until then is just a holding action.

The reason the only thing with a chance of working is "no restrictions period" (and even then it might not work) is because the other branches of government and many of the lower courts do not accept the authority of the Supreme Court on this issue. And the Supreme Court is either unwilling or unable to do anything to make them fall in line. Possibly, as you suggest, because these conservatives don't actually want people to have gun rights -- rather, they want the moral victory, the situation "Of course you have a right to keep and bear arms, but you can't have a GUN". Much as we've sometimes seen "you have free speech, but free speech doesn't mean you can say THAT" (first from conservatives and later from progressives).