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In his Supreme Court opinion yesterday overturning New York’s law requiring people to show they have a real need to carry a firearm, Clarence Thomas argues that there’s only one standard necessary to decide whether gun laws are constitutional: Any regulation of firearms, Thomas writes, must be consistent with the “history and tradition” of American gun laws.
But not necessarily the whole history of gun laws, which would otherwise include the New York law itself, written in 1913. No, only the very special history of laws that fit into the already dubious “history” Antonin Scalia invoked in the Court’s 2008 decision in District of Columbia v. Heller, which discovered an individual right to firearms ownership for self defense in the Constitution, even though no previous Supreme Court decision had noticed it sitting right there all along.
Read More: Supreme Court Declares Humans’ Only Value Is As Hosts For Guns, Babies
In terms of “legal analysis,” Wonkette’s own legal eagle Liz Dye informed me in the Wonkette Sekrit ChatCave that there isn’t any, beyond SCOTUS doing what it damn well pleases because the Right has the majority, suck it, America. So we guess we lied yesterday when we said she’d be doing a legal analysis of the decision.
Actually, Liz pointed out that there is one very significant and very bad legal development here: The Court’s decision scraps what had been a two-step analysis of gun laws. Under Heller, the Court said statutes first need to be consistent with legal history and precedent, and then the state needs to show that the law furthers an important government interest. Thomas wipes out that second part completely, explaining that history alone matters, regardless of whether the government thinks it might be a good idea to reduce the number of Americans dying of gunshot wounds.
Also, pretty much any history since the 1860s is off the table since the decision pretends the only relevant legal history involves the legal context leading up to the adoption of the Constitution and Bill of Rights, and maybe a little history related to the 14th Amendment. But forget nearly everything else after that: We need to (un)regulate semiautomatic handguns and assault rifles under the assumption that the Holy Founders really really wanted all Americans to be able to walk around with weapons that can empty a 20- to 30-round magazine in a matter of seconds, free of government interference.
Not surprisingly, a lot of historians and constitutional scholars think that’s completely nuts.
For starters, Thomas’s insistence that gun laws be assessed on the basis of “history and traditions” is just plain disingenuous. As UCLA Law professor Adam Winkler, author of Gunfight: The Battle Over the Right to Bear Arms in America, points out in the New Yorker, there’s enough cherry-picking in the Court’s decision to make a whole box of Pop Tarts:
[The] Court says it is going to look to history and tradition, but then ignores history and tradition. The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers. The Court says that it is going to look to history, but dismisses early English common law as too old. The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young. The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention. So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like.
The biggest scam of all is the decision’s pretense that the individual right to own guns for self defense, as codified in Heller, is the One True Meaning of the Second Amendment. Now that the Court has said such a right exists, sure, that’s the law, but as Michael Waldman argued in 2014, the notion that the Second Amendment enshrines an individual right to gun ownership is pretty much an invention of the NRA from the 1970s, without a lot of grounding in history, no matter how loudly gun fans shout that it’s the only possible meaning.
If that interpretation is already sketchy — not that Thomas and his pro-gun buds would admit it — it’s even more dishonest to go back and pretend that every gun law in American history would have been aborted if Heller just had a time machine. But that’s pretty much what Thomas does, to the point that, as we noted, he eliminates the previous two-part standard for assessing gun laws. No factor can be considered other than history, and the only historical tradition that counts has to leave out a shitload of actual history.
Isn’t that a fun game? Rewrite history to suit your aims, then insist that the only valid historical gun laws are those that fit into the “historical tradition” you’ve invented. It’s the kind of retconning comic book fans would make fun of.
That’s how Thomas sidesteps any number of historical gun laws, like those from the Old West, which required that anyone entering a town would need to hand their guns over to the local Sheriff. After all, he writes, citing Heller,
these territorial laws were rarely subject to judicial scrutiny, and absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, they do little to inform “the origins and continuing significance of the Amendment.”
If actual American gun laws don’t count as history, then what does? Obviously, the laws of Olde England, but only as filtered through Heller.
That’s how we get some patently goofy observations like these in a Supreme Court decision. Forget actual American history, because a hundred years before the Constitution, a lot of English people resented restrictions on their own personal AR-15s and Glocks.
When we look to the latter half of the 17th century, respondents’ case only weakens. As in Heller, we consider this history “[b]etween the [Stuart] Restoration [in 1660] and the Glorious Revolution [in 1688]” to be particularly instructive. 554 U. S., at 592. During that time, the Stuart Kings Charles II and James II ramped up efforts to disarm their political opponents, an experience that “caused Englishmen . . . to be jealous of their arms.” Id., at 593.
Thomas goes on to fault New York’s attorneys for failing to
offer any evidence showing that, in the early 18th century or after, the mere public carrying of a handgun would terrify people. In fact, the opposite seems to have been true. As time went on, “domestic gun culture [in England] softened” any “terror” that firearms might once have conveyed. […] Thus, whatever place handguns had in English society during the Tudor and Stuart reigns, by the time we reach the 18th century—and near the founding—they had gained a fairly secure footing in English culture.
So hey, anything missing? As historian Noah Schusterman points out at the Duke Center for Firearms Law, Heller is just full of terrible history, particularly in Scalia’s notion that the Second Amendment’s invocation of a “well-regulated militia” can be laid aside, since the “militia” was made up of all able-bodied males who could use firearms. Schusterman notes that even in the 18th Century, militias were understood to be organized under state governments (complete with registration and eligibility requirements). What’s more, they most certainly didn’t include all able-bodied men. Militias didn’t just exclude people of color, they were deployed to “police the actions of non-whites and especially of the enslaved population.”
Weirdly, Thomas does cite one major 19th Century Supreme Court decision, since it supports his contention that gun control is utterly un-American. It is of course the infamous Dred Scott decision, which Thomas claims “indirectly affirmed the importance of the right to keep and bear arms in public.” You see, in that decision — which even Thomas considers bad jurisprudence — white supremacist Chief Justice Roger Taney fretted that if free Black people were treated as full citizens, they
would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” Id., at 417 (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.
Ergo, history makes clear that everyone can have all the guns they want, as long as you ignore history that rejects that notion. It’s all very exciting, really, and now that the Court has wielded its majority to expand gun rights and undo abortion rights, history really is written by the winners of the 2016 election. And as Washington Post columnist Jennifer Rubin put it yesterday, Thomas’s opinion “perfectly distills the intellectual dishonesty deployed by self-described ‘originalists’ to reach an outcome they favor.”
[Gun Humpers v. Bruen / New Yorker / Brennan Center / Atlantic / Duke Center for Firearms Law]
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