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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.
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 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!"
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.
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