Bruen and Liquidation
In my last post, I discussed how the Bruen decision narrows Second Amendment analysis by making liquidation the only relevant concern. First, it should be noted how totally extraordinary that is.
Justice Thomas whined in his majority opinion that lower courts had treated the right to keep and bear arms as a “second-class right” by subjecting it to interest balancing, which means weighing the government’s interest against the burden on an individual right. He went on to claim that focusing only on the historical tradition to the exclusion of all else “accords with how we protect other constitutional rights.”
With all due respect Justice Thomas, what the actual fuck are you talking about? The first time I read that, I thought I was having a stroke. How could a majority of the Supreme Court sign into something so baldly wrong with so much swagger?
The Supreme Court subjects every constitutional right to some type of interest balancing, except apparently gun rights. Far from a second class right, the court has made the right to carry a gun a super right.
To be fair to Justice Thomas, he was following the lead set by Justice Scalia in Heller. But if the court wants to make one right more equal than the others, I wish it would just say so and spare us the gaslighting.
And limiting the scope of modern gun regulations to those in effect during the 1790s is truly unhinged. Sure, gun laws passed by the people who ratified the Second Amendment are surely relevant evidence of the amendment’s scope. But there’s no reason to think those laws are the only constitutional gun laws.
Relying exclusively on gun laws in effect during the founding era is likely to be both over and under inclusive in terms of the scope of constitutionally permissible regulations.
They may be over inclusive because, as I have previously noted, the founding generation could pass unconstitutional laws too. We might not want to rely on the Alien and Sedition Acts in interpreting the First Amendment, notwithstanding the enthusiasm of John Adams.
On the other side, the simple fact that the founders did not pass a particular gun law does not by itself prove that they did or would have considered it unconstitutional. There are a lot of possible reasons they did not pass any given gun law.
An obvious one is that there was simply no need for the law then. If the founders did not prohibit guns in schools, it doesn’t mean they thought doing so would violate the Second Amendment. There weren’t lunatics regularly blowing away entire classrooms of kindergarteners with AR-15s at the founding.
Even if a particular modern gun related problem did exist at the founding, it might not have been as serious or pervasive. A rampaging lunatic with a muzzle loading musket does not pose quite the same danger as one with a semi automatic rifle. Somehow, the Second Amendment evolves to cover modern guns but not modern efforts to address those guns.
Another obvious reason is the technological limitations of the founding era. You are not likely to find a universal background check law at the founding, not because they’re unconstitutional, but because such a requirement would be totally impractical without modern telecommunications and electronic records databases.
A defender of Bruen would no doubt point out that Bruen only requires that modern laws be analogous, not identical, to founding era laws. Which brings us back to the abstraction problem I talked about last time.
And what’s super frustrating about Bruen is that it’s not even good originalism. Originalism tries to understand the meaning of the constitution. Bruen makes no effort to apply the Second Amendment to modern circumstances based on its original meaning. It seems to abandon the project of understanding altogether in favor of just apeing the founding generation as if nothing of consequence had changed in last 250 years.
That’s not originalism at all, it’s just raw conservatism, or as Noah Feldman calls it, historicism.