This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
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.
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'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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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.
More options
Context Copy link
More options
Context Copy link
Fascinating! I have no idea if it's true or not but I love it as a theory.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link