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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.
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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