Clarence Thomas Created a Confusing New Rule
That’s Gutting Gun Laws
New research indicates that last year’s Bruen case has gutted more than a dozen gun laws.
Illustration by Paolo Beghini for POLITICO
POLITICO
By MATT VALENTINE
07/28/2023 04:31 AM EST
Matt Valentine is co-editor of Campus Carry: Confronting a Loaded Issue in Higher Education(Harvard Education Press, 2020).
Last year, the Supreme Court issued a landmark 6-3 decision in New York State Rifle & Pistol Association v. Bruen, which struck down a longstanding public carry law in New York and casting doubt on gun control laws around the country.
Since then, Jacob Charles, a law professor at Pepperdine University in Malibu, Calif., has tracked every federal court case citing Bruen. His research demonstrates just how long a shadow the decision has cast over the courts.
In a forthcoming Duke Law Journal article, Charles reveals that more than a dozen state and federal laws have been invalidated in whole or in part since the Bruen decision. Thirty percent of civil cases and nearly 4 percent of criminal cases that have cited Bruen have resulted in the invalidation of gun control provisions, among 284 total decisions addressing Second Amendment claims. This flurry of legal activity greatly outpaces the immediate aftermath of the 2008 decision in District of Columbia v. Heller, which endorsed an individual right to bear arms irrespective of service in a militia.
Part of what makes Bruen so impactful on lower courts is its adoption of a new test for determining constitutionality. As laid out by Justice Clarence Thomas, writing for the conservative majority, for a firearm regulation to be justifiable, “the government must demonstrate that the regulation is consistent with the Nation’s historical tradition.” Lower courts have wrestled with this in different ways, with some determining historical precedent based on how many states adopted a law in the past, while others focus on the number of laws passed — or question how and whether those laws were enforced.
Beyond the issue of how, exactly, to determine what counts as an historic analogue, the new test also opens up broader inquiries: How do 18th century traditions apply to 21st century conundrums involving modern technology and sensibilities? What would James Madison’s generation have thought about “ghost guns,” a type of homemade, sometimes 3D-printed firearm?
Thomas anticipated concerns about how courts should nail down history, which can prove slippery. “Analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin,” he wrote. “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”
But Charles calls this deference to history unworkable. “The Bruen method is at its core anti-innovation,” he says. “So there can’t be innovative responses to challenges today that deal with gun violence.”
Attorney Paul Clement stands while speaking to the justices of the Supreme Court during oral arguments in New York State Rifle and Pistol Association v. Bruen on Nov. 3, 2021. | Dana Verkouteren via AP
Now the Court has agreed to hear another Second Amendment case, United States v. Rahimi, which will determine whether people under domestic violence restraining orders can own guns — and test just how far the court is willing to go to expand Second Amendment rights. As the nation wrestles with the new reality of the Bruen decision, and against a backdrop of near-record-high gun deaths and a sharp partisan divide over gun policy in Congress, I spoke to Charles about his research. He had some advice for legislators on writing laws that will survive constitutional challenges, suggested that courts appoint expert historians and explained how gun rights cases provide a glimpse into the future not just of the Second Amendment, but of the First Amendment as well.
One of the upshots of Bruen is that lower courts have been instructed to ignore things like public safety, and instead consider only whether a given law is consistent with historical tradition. How is that playing out in cases that have very contemporary dimensions? I’m thinking here about cases involving modern firearms technology such as “ghost guns,” but also about laws informed by contemporary sensibilities (for example, concerning domestic violence).
Jacob Charles: I think those are the two biggest areas in which you can see what some of the shortcomings of Bruen’s methodology are.
The court wasn’t entirely unaware of these kinds of changes, so it said in announcing this new methodology that the analogies would have to be more nuanced in cases where there was dramatic technological change or unprecedented social concerns. And so it hinted at these two directions — where technology changes or where our social concerns change — that courts would have to do the analogies at a more nuanced level.
Now, it’s not clear what that more nuanced level is, but the court at least recognized these concerns. I don’t think it did enough to respond to those concerns, though. And I think Rahimi is a direct example of the change in societal concerns making this test really break. Because what the test requires is not, “What would the founding generation have understood to be consistent with the right to keep and bear arms?” but “Did they enact a law that looks similar enough to one today?”
Clarence Thomas Created a Confusing New Rule That’s Gutting Gun Laws
New research indicates that last year’s Bruen case has overturned more than a dozen gun laws.
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