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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):
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.
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.
Approximately all of them, based on current standards of domestic violence. Minor physical punishments (slaps, spanking etc.) were 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.
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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.
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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.
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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.
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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.
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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.
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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.
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.
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.
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.'
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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.
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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.
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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.
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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.
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".
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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.
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