Dorf on Law: Of Bruen, the Second Amendment, and Constitutional Insanity

Here's the bottom line!

At the end of the panel opinion, the judges said the following:

Doubtless, [the federal law] embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of [the law] outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that [the law's] ban on possession of firearms is an outlier that our ancestors would never have accepted. Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated. 

Again, what are we doing? A law that serves valuable "policy goals" today is unconstitutional because "our ancestors" would have rejected it? Our ancestors being white, propertied males who had the right to rape their wives and who did not think domestic violence was a problem? - ES

Dorf on Law: Of Bruen, the Second Amendment, and Constitutional Insanity: By Eric Segall 

 Last week, I wrote an essay explaining why New York State Rifle & Pistol Ass'n v. Bruen, decided last June by the United States Supreme Court, is one of the most radical, anti-originalist, ahistorical, and tragic decisions of my lifetime. Bruen directs judges to perform a text, history and tradition only analysis to Second Amendment cases without any judicial balancing of the government's interest in the challenged law against the importance of the asserted right to "keep and bear arms." As I wrote here, this rejection of judicial balancing of rights against the public good would have been universally rejected by the ratifiers of both the Second and Fourteenth Amendments and the public during both time periods. Bruen is an anti-originalist opinion written by the Court's staunchest originalist Justice- Clarence Thomas. Oh, the irony. This Friday I head to New Orleans for a symposium on judicial review and democracy where I will argue that Bruen wrongfully elevates judicial review above democracy in dangerous and maybe even fatal ways. In this blog post, I use a recent Fifth Circuit Second Amendment case and its majority and concurring opinions to illustrate many of....