****despite the reach of Bruen, I am fairly confident that five justices will reverse the 5th Circuit and uphold a variety of laws that our ancestors would have rejected, including the federal ban on owning a gun while subject to a restraining order for domestic violence. Why? Because I do not think five justices agree with Bruen. Yes, it was a 6–3 decision. Yes, every justice in the majority joined Thomas’ opinion in full. But one justice, Brett Kavanaugh, wrote a separate opinion laying out a different standard that cannot be squared with Thomas’. And another, Chief Justice John Roberts, joined him. Under the Kavanaugh-Roberts test, disarming alleged abusers—and other individual adjudged to be dangerous—is almost certainly constitutional.
It is almost never wise to be optimistic about this Supreme Court. And it is frightening to think that thousands of lives depend on Kavanaugh ruling the right way. But in this most unusual case, I think cautious confidence is in order.
To see why, just hold up Thomas’ and Kavanaugh’s opinions in Bruen side by side. Both justices agreed with the bottom line: New York’s concealed carry law, which required applicants to demonstrate a heightened need for self-defense, violates the Second Amendment. But take one step beyond that and the justices start to diverge. Thomas devotes his opinion to articulating a new legal test: Modern gun restrictions are “presumptively” unconstitutional unless they have enough “historical analogues” from the 18th and 19th centuries to prove that they are rooted in “this nation’s historical tradition of firearm regulation.” That’s the test that the 5th Circuit used to find that the government cannot bar people from owning guns while they are under a restraining order for domestic violence.
Although Kavanaugh formally signed onto Thomas’ opinion, he spent the bulk of his separate concurrence recasting it as something very different. Kavanaugh wrote that he wanted “to underscore two important points about the limits” of Thomas’ opinion. First, he clarified that the decision does not affect “the existing licensing regimes” in 43 states that let any law-abiding adult carry a concealed weapon. “As the court explains,” Kavanaugh declared, “New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.” In other words, New York’s “outlier” law violates the Second Amendment because it grants state officials so much latitude in determining who deserves to carry a gun.
But that’s not actually what the court—that is, Clarence Thomas’ majority opinion—said! Thomas did not focus primarily on the problem of state officials’ “open-ended discretion.” He instead zeroed in on the ostensible lack of a historical basis for such stringent limits on concealed carry. These are two very different things! In his concurrence, Kavanaugh then went on to preemptively greenlight a variety of restrictions on concealed carry permits, including “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force.” All these requirements, he declared, are “constitutionally permissible.”
Wait—they are? Why? Under Thomas’ test, that’s an open question: The government would have to demonstrate that in the 18th and 19th centuries, a critical mass of states forced citizens to jump through these hoops before acquiring a concealed carry permit. It’s extremely unlikely that states demanded fingerprinting (which did not exist at that time) or a background check (frequently impossible in an era with scarce, scattershot paper records) or a mental health records check (since the very concept of mental health was in its infancy). These requirements are only constitutional—indeed, obviously constitutional, per Kavanaugh—under a more lenient test. A test that, for instance, measures the importance of the government’s objectives against the burden on the individual’s rights. Yet Thomas expressly disclaimed this kind of “means-end scrutiny,” insisting that it is irrelevant how many lives a particular gun restriction might save.
No comments:
Post a Comment