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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.
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.
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.
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.
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