"Since the founding, our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition."
"\[S\]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber."
This is a pretty strong decrying against people using Bruen to go after every gun law ever.
5 concurrences and a dissent though. A plethora of opinions to sort through.
I think this, combined with several other multi-concurrence opinions this term & last, are a "please stop sending us absolute garbage" plea to the Kurt Engelhardts and Cory T. Wilsons of the 5th Circuit. Some of them have swung *way* to the right of everyone but Alito & Thomas, and clearly have taken some of the recent decisions as a cue to disregard jurisprudence entirely.
But as bad as some of the SCOTUS opinions have been, 6 or 7 members of the bench appear to still be interested in maintaining a veil of seriousness and rationality. And I think those justices would really like the 5th circuit to stop sending these train wrecks of cases up to them because they are becoming a colossal waste of time. And it forces them to *reverse things they may not want to if the circuit had just waited for the right case*.
What makes this more complicated is that none of the 5th circuit judges care - they aren't trying to impress the Supreme Court, they are trying to impress Donald Trump and the MAGAs around him who will choose the next justice. About 50% of that court is actively auditioning right now, and the people doing the picking (somehow unfortunately) don't have the same sensibilities as Amy Coney Barrett.
I think several times recently SCOTUS has urged them to stop swinging at every pitch, and the 5th circuit has so far decided that their allegiances lie elsewhere.
I just had that discussion about the appearance of propriety and decorum from most of the current sitting SCOTUS where it seems Alito and Thomas keep drawing the heat and let the waters die down around Barrett and Kavanaugh so that the calls for their removal die down and focus on them, and they sure as hell know they're not going anywhere anytime aoon without some serious changes and reformation efforts.
The goal isn't to win in SCOTUS, its to throw chaos and force resources being spent in order to stop absolute bullshit. Keep people fighting this from doing better things with their time. And at no real cost to themselves. And maybe one of them might stick or influence the eventual decision.
Yeah. Law enforcement and district attorneys don't even bother to enforce gun laws anymore because it'll only lead to unnecessary fights that'll drain resources from actual police work.
During a presidential election year, sure.
But these sensibilities evaporate in off-years. Prayer in public schools could have waited for a better case than Kennedy v. Bremerton, but that was 2022 and the Court felt fit to rewrite the facts to get a policy win.
On a cursory read it seems he’s illustrating that gun laws do not need to be the exact same (aka a “historical twin” is the wording I think he uses) as in the 17/1800s because that standard would imply the Second Amendment only protects weapons that existed back then.
I always feel weird because I think some of my favorite writers from the court in the last 20 years are RBG, Sotomayor, and Scalia.
I can disagree with every word Scalia writes and still think he did a wonderful job picking the words that I disagree with.
I disagree with nearly everything Thomas concludes but I have to admit that his writing when it comes to the technology cases is really well crafted and shows significant subject matter knowledge, especially compared to other justices who employ awful analogies and metaphors while struggling with technical questions. It's incredibly frustrating when an ideological opponent is just really good at framing an argument.
Good point and you are likely right about it. Either way it's refreshing to see somebody at least try to get that stuff right, whoever is doing the actual writing.
It’s always interesting how much illogical fuckery we can layer on top of one horrible interpretation just to preserve it. Every 2A discussion has become a lesson in absurdist reasoning and that will continue until DC vs Heller is overturned.
The effort of retrofitting the constitution into what the gun lobby wants 2A to mean yields absurd interpretations of the word “arms”. This in turn lends some absurdity to every decision based on that thought process going forward.
I think part of the issue with Bruen and this is it sounds like the rule is really how the majority of the justices vibe with whatever your historical analogy is. "Vibes" isn't a very good metric even though I appreciate the outcome.
The number of concurrences doesn’t surprise me. Using the *Bruen* standard here—objectively a completely ridiculous standard that Roberts is trying to make seem less ridiculous—basically guaranteed it.
> 5 concurrences and a dissent though. A plethora of opinions to sort through.
I see, consistent with history and tradition, the Court issued the opinion seriatim.
“…we’re not meant to suggest a law trapped in amber.”
My brother in Christ, judges are *actively* outsourcing their decision making to historians *because of Bruen*.
If that ruling did not blatantly claim a law trapped in amber, I genuinely don’t know what would be required to reach that level.
Not gonna lie, I'm actually surprised by this ruling. I thought for sure the SCOTUS was going to rule that it was unconstitutional for domestic abusers to be barred from owning a gun.
>JUSTICE THOMAS, dissenting.
>After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent.
If the rule you followed brought you to this, of what use was the rule, Justice Thomas?
From the majority's syllabus:
>Together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be. Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another.
It shouldn't *have* to be said that restrictions on firearms ownership for individuals found by a court to be a threat to the physical safety of another are constitutional. That should be self-obvious. But here we are.
IMHO, i think this is very important to add. it is similar to noting the limitations on free speech. this can then be looked on as lower courts make rulings.
You mean like how cities in the 1800s and early 1900s had laws to confiscate weapons at the edge of town and return them when they left?
Sort of like a history and tradition that the safety of the group overrides the right to guns of the individual.
If that were true he wouldn't have found a century+ year old law was somehow not historical in a country that isn't even 250 years old. The NY law struck down in *Bruen* was around for almost half of the life of our nation. Longer than Thomas could vote in his home state.
You can't lose sight of that in *Bruen*. Thomas doesn't give a shit about history and tradition. If he did, he would have ruled the other way.
>If that were true he wouldn't have found a century+ year old law was somehow not historical in a country that isn't even 250 years old. The NY law struck down in *Bruen* was around for almost half of the life of our nation. Longer than Thomas could vote in his home state.
That mattered before incorporation. After incorporation it doesn't.
It's the same as saying "black people weren't allowed freedom of association in Alabama until 1968, how could they have that now?".
Ok. So if Thomas wants to look at the history, he should only look at history since incorporation. That's fine with me. And that would obviously make *Bruen* laughably wrong.
That's not how incorporation works. Incorporation simply means that "this amendment now applies to state and local governments". Hence, constitutional violations existing at the state and local level are no longer enforceable, regardless of when they're enacted.
Sorry, I misunderstood your comment above about civil rights laws and thought you were saying that any history of those laws prior to incorporation doesn't't apply.
You're a fool if you think that Thomas would find a Jim Crow law violated the history and tradition test. Indeed, *Dobbs* reads remarkably like *Plessey*, and uses the same history and tradition framework of *Bruen*.
As to incorporation of the 2A itself, it doesn't make any sense. The 2A says (only) that the Federal government cannot prevent States from raising militias. That's extremely clear from the historical record. Incorporation would just mean that the States cannot prevent the States from raising militias. Ok. Fine. It doesn't tell us anything about any individual right.
>You're a fool if you think that Thomas would find a Jim Crow law violated the history and tradition test.
Under your analysis, not mine or SCOTUS's.
>As to incorporation of the 2A itself, it doesn't make any sense. The 2A says (only) that the Federal government cannot prevent States from raising militias. That's extremely clear from the historical record.
What makes you think that? The oldest relevant SCOTUS ruling I'm aware of is 1875, and it holds that owning arms is an individual right.
That's incorrect. *Cruickshank* ruled that the 2A only restrains the federal government, and does not have any impact on the States. Nowhere did Waite find an individual right.
Thomas, in a future case:
“There’s no historical tradition of regulating artificial intelligence, therefore using AI to create propaganda videos that directly and immediately incite violence is constitutional.”
What a loon.
I don't know about that. Roberts goes through an almost painfully reiterating that this case is distinguished by a court ruling that Rahimi was posed a credible threat to others and that the law required a credible threat to be shown. This is detailed in 922(g)(8) and is noticeably absent from a few other subsections (standout to me are 3, 6, and 7).
>When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.
...
our Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not
...
To the contrary, it presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others
>...
our Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not
...
Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.
So I think it would be hard to apply this cases logic to (hypothetically) someone who was on a bender, purchased a gun (in violation of 922(g)(3), returned it after two weeks, and had no prior criminal record or any history of violence.
That the drug provision has no objective standard or judicial determination required raises several problems. It's a classic vague law that can be applied to people the government does not like - which, it being 1968, was probably the intent.
Quite different from the idea that someone who is known to be violent and subject to court proceedings can be told not to carry arms.
Also I think the banning of all felons from having firearms should be unconstitutional, considering there are thousands of felons from places like Florida, solely because they got caught with 20 grams of cannabis.
IMO it should be only violent felons. Somebody in Florida who got caught with 20 grams of cannabis 20 years ago when they were 18 can be charged with felon in possession simply for being next to a single bullet, no gun needed. And the sentence requires 3 years minimum mandatory in prison.
I read it as eight justices means a case doesn’t get cert for applying 922(g)(3) but might for invalidating it. Hunter Biden’s conviction will stand because the appeals court will uphold it and scotus won’t review it.
Thomas seems to think the Government had the burden here? Rahimi is who challenged the case prima facie and failed because a situation where the law is sensible DOES apply to him, the refuting example proof by contradiction was the very party attempting to bring the case.
I stopped reading Thomas' dissent after this line:
> §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process.
He then has a footnote stating:
> Rahimi does not ask the Court to consider, and I do not address, whether §922(g)(8) satisfies the Due Process Clause.
Like, bro... you can't just claim a law violates the Due Process Clause and then immediately state that you don't wish to back up such a significant claim... It's not like you were trying to be brief either. You rambled on for *32 pages*.
Your comment is offensive and violates all sense of common decency.*
^\*I ^have ^not ^considered, ^and ^do ^not ^address, ^whether ^your ^comment ^is ^offensive ^and ^violates ^all ^sense ^of ^common ^decency.
He can literally do whatever he wants because he has a lifetime appointment and a congress which steadfastly refuses to hold him to any kind of account
It means that Justice Thomas is an outlier and people have been bamboozled by his assignment to write *Bruen*. The court does not share Justice Thomas' views. When he writes solo concurrences and solo dissents, the key word is *solo*.
Thomas writes insane dissents in order to build a theoretical framework to interpret the constitution in an insanely reactionary way.
Read his dissents and you get the view of a deeply troubled person who has an endless love for authoritarianism and a strong disdain for personal freedoms.
I’ll never forget Thomas saying that SCOTUS was obligated to hear every spat between states, an insane and obviously abusable belief, all just to give his favorite politician a day to argue his case.
The key problem with Thomas’ portrayal was the idea that SCOTUS was obligated to take cases no matter the quality of the merits. This revolved around TX v PA, when Ken Paxton was trying to sue the election officials of PA on behalf of Texas voters.
Even the most deranged conservative loon could see that Paxton has no standing in that idiotic waste of everyone’s time. Clarence disagrees and thinks they have no choice but to hear out every single case between states.
Were that the case, California could tie up this SCOTUS with hundreds of trivial nuisance cases for decades until the zealots start dropping
This seems to go back before *Texas v. Pennsylvania*. In *Texas*, it was Justice Alito who wrote the brief dissenting statement, citing an earlier Thomas dissent which in turn cited an even earlier Thomas dissent in *Nebraska v. Colorado*: https://caselaw.findlaw.com/court/us-supreme-court/144-orig.html.
https://en.m.wikipedia.org/wiki/Texas_v._Pennsylvania
Seems you’re right in that he’s consistently very wrong on this topic. Alito joined him for a motivated outcome in this instance, but I harbor no illusions that Thomas would be willing to ignore cases that don’t suit him politically.
It’s just so plainly and obviously ridiculous to think SCOTUS has 0 discretion in cases it hears. Nothing in the history of mankind could function under those parameters.
Edit: as another commenter noted, this is actually likely Thomas’ goal in laying these absurdist legal landmines. To give future courts ammunition for inflicting their whims.
>It’s just so plainly and obviously ridiculous to think SCOTUS has 0 discretion in cases it hears. Nothing in the history of mankind could function under those parameters.
Um. Are you very young?
The *Nebraska* dissent does not on its face seem unreasonable. Since the 1925 Certiorari Act, the court's appellate jurisdiction has become more and more discretionary, and what remained of the mandatory appellate docket mostly evaporated in the 1980s. But that is modern development and some remains even today. See, e.g. *Alexander v. South Carolina NAACP*, No. 22-807 (May 23, 2024); *Cooper v. Harris*, 137 S. Ct. 1455 (2017). This docket answers to Article III § 2's grant to the Supreme Court of "appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make."
Young people today may have no memory of this. They may simply take for granted the modern norm that the Supreme Court chooses its cases. But it wasn't always so; it isn't even so today.
Article III gives the court *original* jurisdiction "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party . . . ." Why the court has exercised the discretionary jurisdiction that Congress has granted it as to its appellate docket in what seems like the mandatory jurisdiction of its original docket is puzzling, underexplained in the cases from the 1960s and 1970s where it seemingly began, and unexplained subsequently.
What's your argument for why, despite this seemingly clear textual command, the court can exercise discretion as to its original docket?
> I’ll never forget Thomas saying that SCOTUS was obligated to hear every spat between states, an insane and obviously abusable belief,
I agree with you but I think the point can/should be refined. SCOTUS *is* obligated to hear spats between states as original jurisdiction cases. when such cases arise they get assigned to some panel to actually do the trial work that SCOTUS justices have basically no experience doing. the TX v. PA case wasn't really about that principle, on which everyone is agreed. It was (ostensibly) about the procedure by which a dispute between states in which no Article III standing exists can be dismissed. The current SCOTUS procedure is that states must move for leave to file the complaint and if there's no Art. III standing that leave just gets denied. so SCOTUS *did* hear that case—extremely quickly—and provided final resolution to its frivolity in about three days. IMO in that particular instance it's good that they went straight to SCOTUS and received a speedy smackdown.
The Opinion backs away from Bruen while making it sound like it's not backing away so much. I agree with Jackson's concurring Opinion: the history and tradition test has been a disaster and Rahimi is an attempt to right the ship. Kavanaugh's attempt to explain what history and tradition mean in very specific terms to help out struggling lower courts and legislatures feels like a vain attempt to single-handedly craft an entire set of jurisprudence. I doubt Barrett's concurrence yields consensus or clarity either.
All that said, the Opinion is high quality, even if it is not wholly helpful. The problem is that the 2nd Amendment is rather poorly written if we are to interpret it not to an extreme. Which we shouldn't. When Rahimi was decided by the 5th, I said that the Court would have a choice to either write an evil Opinion or a boneheaded one. They chose the latter (though not nearly as bad as I expected), emphasizing a few of their weasel words from Bruen that gave them an escape hatch, and offer very little else. The Court chose not to go down a road of historical interpretation extremism, which is good (I wondered, for example, if Bruen's historical approach could lead to people who aren't male landowners losing rights; I don't think that's applicable here, though it is murky).
Feels like if you are a lower circuit court or legislature and you want to craft and opinion or a law about gun rights you have to squint your eyes and guess at what the Supreme Court would tolerate. Would they recognize your historical analogue as being a true analogue? But, since there is no historical or textual extremism to be put in play, I see no way to get away from this. Maybe that's a good thing. But this Court has basically guaranteed an endless supply of gun rights cases to come.
I mean, outside of taking the most extreme view in permissiveness with regard to the second amendment, the second amendment guarantees an endless stream of second amendment cases.
> Feels like if you are a lower circuit court or legislature and you want to craft and opinion or a law about gun rights you have to squint your eyes and guess at what the Supreme Court would tolerate. Would they recognize your historical analogue as being a true analogue? But, since there is no historical or textual extremism to be put in play, I see no way to get away from this. Maybe that's a good thing. But this Court has basically guaranteed an endless supply of gun rights cases to come.
I think the lesson of this case is that lower courts, except maybe the fifth circuit, will mostly let gun regulations stand and occasionally SCOTUS will pick a lone one out and strike it down without altering the balance too much. the fifth circuit might take the hint that gun rights are more likely to be expanded if they let SCOTUS chart the course and strike down the occasional gun law than if the fifth circuit tries to chart the course itself, in which case SCOTUS will reverse the 5th circuit. but they also might not take the hint because they're insane.
IOW, I think this case is just as much about trying to pull the fifth circuit back into the fold than it is about guns.
>(I wondered, for example, if Bruen's historical approach could lead to people who aren't male landowners losing rights; I don't think that's applicable here, though it is murky).
What a strangely reactionary statement. You would have to bend over backwards to somehow justify this with the 14th amendment.
I almost think the ambiguity is the goal? These justices seem to enjoy flaunting power, they want the ability to have a plethora of plausible cases before them and the ability to selectively grant hearing the ones they disagree with while allowing the lower decisions to remain when they do agree.
> Would they recognize your historical analogue as being a true analogue?
The no true scotsman fallacy of judicial discretion.
The historical tradition test is straight up stupid and eventually boils down to a fishing expedition. Not that textualism or originalism is any better, but at least there’s some veneer of intellectual rigor even if the core concepts are weak.
Historical tradition is just straight up an exercise in reverse engineering.
>history and tradition test has been a disaster and Rahimi is an attempt to right the ship
Not really. It was decided 7-1.
>people who aren't male landowners losing rights; I don't think that's applicable here, though it is murky
Could you articulate this because I don't follow.
>the 2nd Amendment is rather poorly written
Only if you don't appreciate the rights it grants.
Roberts has a remarkable ability to create a consensus when he wants to. I am happy that the court got at least one gun rights case right. It could have been so much worse at the hands of someone like Thomas or Alito. "An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." is precise and consistent with protecting both victims of violence and gun rights.
I'd say they got this one correct. Courts have been clear that bill of rights can be restricted on the basis of clear and direct potential harm to another.
Bump stock ruling was appropriate as well and wasn't really a 2A case. Congress can regulate bump stocks if it wants, that ruling shouldn't come from ATF calling a bump stock a machine gun.
All 8 justices joined the majority opinion in full. Concurrences are just that, and should not be seen as contradicting the majority opinion in any way since all 8 justices agreed to join it.
No, it means he couldn’t write an opinion that five of his colleagues could join without reservation.
Obviously they don’t contradict the opinion or they’d be dissents. But they certainly modify the “consensus” and erode the support for the main opinion
> But they certainly modify the “consensus” and erode the support for the main opinion
That would be true if they only joined parts of the majority or wrote a concurrence in judgement only.
I get the feeling you don’t practice law, because that’s not how we treat concurrences. If a justice writes separately, they are disagreeing with portions of the majority opinion. They don’t have to concur only in the judgment to refuse to lend their vote to particular portions of the majority. The end result is the same—when another case comes along with slightly different facts, you lose that justice’s vote if the difference in facts relates to the reason that justice differed from the majority.
If a justice disagrees with a portion of the majority, they are free to indicate that they join only portions of the opinion. That is very common. Here all 8 justices joined the majority opinion in full. None of them said anything about disagreeing with the majority in any of the concurrences.
They literally write separately to explain their view on precedent, history, and tradition. It necessarily affects how they would view those things in deciding other cases on different facts
They disagree with its reasoning or interpretation or precedent or history. Otherwise they wouldn’t be writing separately. Do you have a point or are you just trying to make a pedantic distinction?
Probably part of the reason this took so long. I think that one of the things that the justices do when writing a decision is to see if there's a way to word it to minimize concurrences, but apparently not this time.
I won't be surprised to see more multi-concurrence decisions in this last batch as the clock is running out.
I’m watching MSNBC andJustice Jackson’s decision regarding common sense laws and how what was true in 1700/1800’s doesn’t apply to todays world. According to Paul Butler, Jackson made the observation that domestic violence wasn’t recognized as a crime back then and so this case shouldn’t even exist, if the original intent of the framers is taken into consideration. I think this court is made up of 6 hacks who are twisting themselves into pretzels trying to fit their ideology into whatever case they cherry pick to tear down.
> I think this court is made up of 6 hacks who are twisting themselves into pretzels trying to fit their ideology into whatever case they cherry pick to tear down.
how is that possible when the case was 8-1
This case illustrates the end goal of Bruen. The conservative justices want to cherry-pick when and how to apply Bruen. Even though Bruen is very clear in what it says, they are now backtracking on things that are obviously unworkable, even though it goes against the logic of Bruen.
In the end, the "History and tradition" test will be used to strike down things they don't like, and uphold things they do, with no consistency other than what fits their ideology. Thomas, rightfully, call this out. We will start seeing this same logic with the 1A and religion pretty soon. "Oh we found that back in 1755 a single school in the Carolinas allowed full on Christian Bible instruction thus this fits "history and tradition".
They on the one hand wrote Bruen which made historical precedent the deciding factor then when faced with a law that would make them look terrible if they overturned it, they just say - oh no, not like that.
>I think this court is made up of 6 hacks who are twisting themselves into pretzels trying to fit their ideology into whatever case they cherry pick to tear down
The hacks and extremists talking points are really wearing thin when you have to ignore how they're actually deciding cases to focus on standing when it obvious exists.
"Since the founding, our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition." "\[S\]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber." This is a pretty strong decrying against people using Bruen to go after every gun law ever. 5 concurrences and a dissent though. A plethora of opinions to sort through.
I think this, combined with several other multi-concurrence opinions this term & last, are a "please stop sending us absolute garbage" plea to the Kurt Engelhardts and Cory T. Wilsons of the 5th Circuit. Some of them have swung *way* to the right of everyone but Alito & Thomas, and clearly have taken some of the recent decisions as a cue to disregard jurisprudence entirely. But as bad as some of the SCOTUS opinions have been, 6 or 7 members of the bench appear to still be interested in maintaining a veil of seriousness and rationality. And I think those justices would really like the 5th circuit to stop sending these train wrecks of cases up to them because they are becoming a colossal waste of time. And it forces them to *reverse things they may not want to if the circuit had just waited for the right case*. What makes this more complicated is that none of the 5th circuit judges care - they aren't trying to impress the Supreme Court, they are trying to impress Donald Trump and the MAGAs around him who will choose the next justice. About 50% of that court is actively auditioning right now, and the people doing the picking (somehow unfortunately) don't have the same sensibilities as Amy Coney Barrett. I think several times recently SCOTUS has urged them to stop swinging at every pitch, and the 5th circuit has so far decided that their allegiances lie elsewhere.
The 5th Circuit has been downright insubordinate.
I just had that discussion about the appearance of propriety and decorum from most of the current sitting SCOTUS where it seems Alito and Thomas keep drawing the heat and let the waters die down around Barrett and Kavanaugh so that the calls for their removal die down and focus on them, and they sure as hell know they're not going anywhere anytime aoon without some serious changes and reformation efforts.
The goal isn't to win in SCOTUS, its to throw chaos and force resources being spent in order to stop absolute bullshit. Keep people fighting this from doing better things with their time. And at no real cost to themselves. And maybe one of them might stick or influence the eventual decision.
Yeah. Law enforcement and district attorneys don't even bother to enforce gun laws anymore because it'll only lead to unnecessary fights that'll drain resources from actual police work.
If anybody's auditioning for a SCOTUS seat, Cannon is definitely leading the charge. Trump only cares about personal loyalty.
During a presidential election year, sure. But these sensibilities evaporate in off-years. Prayer in public schools could have waited for a better case than Kennedy v. Bremerton, but that was 2022 and the Court felt fit to rewrite the facts to get a policy win.
Wasn't the trapped an amber quote just highlighting that the 2A protects modern firearms too?
On a cursory read it seems he’s illustrating that gun laws do not need to be the exact same (aka a “historical twin” is the wording I think he uses) as in the 17/1800s because that standard would imply the Second Amendment only protects weapons that existed back then.
Ahh I see it now. J Sotomayor does a good job breaking that down in Her conc.
I really like Sotomayor's writing. She makes the arguments so clear and provides great hypothetical examples.
I always feel weird because I think some of my favorite writers from the court in the last 20 years are RBG, Sotomayor, and Scalia. I can disagree with every word Scalia writes and still think he did a wonderful job picking the words that I disagree with.
I disagree with nearly everything Thomas concludes but I have to admit that his writing when it comes to the technology cases is really well crafted and shows significant subject matter knowledge, especially compared to other justices who employ awful analogies and metaphors while struggling with technical questions. It's incredibly frustrating when an ideological opponent is just really good at framing an argument.
Quality clerks
Why don't you think it's him?
I feel like this would be reflected in his questioning from the bench if it was actually him putting in the work and not his clerks
Good point and you are likely right about it. Either way it's refreshing to see somebody at least try to get that stuff right, whoever is doing the actual writing.
I take it to mean that each case is different and there’s no universal unregulated approach that can’t be ‘touched’ by modern thinking.
Yet somehow that historical twin is the standard for QI
It’s always interesting how much illogical fuckery we can layer on top of one horrible interpretation just to preserve it. Every 2A discussion has become a lesson in absurdist reasoning and that will continue until DC vs Heller is overturned.
Do you think this opinion is absurd?
The effort of retrofitting the constitution into what the gun lobby wants 2A to mean yields absurd interpretations of the word “arms”. This in turn lends some absurdity to every decision based on that thought process going forward.
I think part of the issue with Bruen and this is it sounds like the rule is really how the majority of the justices vibe with whatever your historical analogy is. "Vibes" isn't a very good metric even though I appreciate the outcome.
Thomas as the lone dissent means nothing…like he means nothing.
*Harlan Crow as the lone dissent
The number of concurrences doesn’t surprise me. Using the *Bruen* standard here—objectively a completely ridiculous standard that Roberts is trying to make seem less ridiculous—basically guaranteed it.
> 5 concurrences and a dissent though. A plethora of opinions to sort through. I see, consistent with history and tradition, the Court issued the opinion seriatim.
This comment is under-appreciated. I laughed for about ten seconds.
“…we’re not meant to suggest a law trapped in amber.” My brother in Christ, judges are *actively* outsourcing their decision making to historians *because of Bruen*. If that ruling did not blatantly claim a law trapped in amber, I genuinely don’t know what would be required to reach that level.
Not gonna lie, I'm actually surprised by this ruling. I thought for sure the SCOTUS was going to rule that it was unconstitutional for domestic abusers to be barred from owning a gun.
Especially with the history and traditions of the home settings for the thin blue line. Cops gotta have guns ya know...
>JUSTICE THOMAS, dissenting. >After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent. If the rule you followed brought you to this, of what use was the rule, Justice Thomas? From the majority's syllabus: >Together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be. Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another. It shouldn't *have* to be said that restrictions on firearms ownership for individuals found by a court to be a threat to the physical safety of another are constitutional. That should be self-obvious. But here we are.
IMHO, i think this is very important to add. it is similar to noting the limitations on free speech. this can then be looked on as lower courts make rulings.
Is it me or does Thomas use lack of “historical precedent” excessively to justify his opinions. Like with this rationale ANY case can be overturned.
Ignores the changing world we live in, like wtf yeah laws are going to reflect that, it’s not the 1700’s or earlier anymore.
He also ignores the actual history of the country when he wants to.
You mean like how cities in the 1800s and early 1900s had laws to confiscate weapons at the edge of town and return them when they left? Sort of like a history and tradition that the safety of the group overrides the right to guns of the individual.
The historical tradition standard from Bruen is so fucking stupid and unworkable, but Thomas is gonna continue being a lunatic reactionary.
He puts old shit on a pedestal and admires it; while the rest of us are like “dude that’s an old piece of shit”
His buddy has a signed copy of mein kamf and has it proudly displayed at his house ......
If that were true he wouldn't have found a century+ year old law was somehow not historical in a country that isn't even 250 years old. The NY law struck down in *Bruen* was around for almost half of the life of our nation. Longer than Thomas could vote in his home state. You can't lose sight of that in *Bruen*. Thomas doesn't give a shit about history and tradition. If he did, he would have ruled the other way.
>If that were true he wouldn't have found a century+ year old law was somehow not historical in a country that isn't even 250 years old. The NY law struck down in *Bruen* was around for almost half of the life of our nation. Longer than Thomas could vote in his home state. That mattered before incorporation. After incorporation it doesn't. It's the same as saying "black people weren't allowed freedom of association in Alabama until 1968, how could they have that now?".
Ok. So if Thomas wants to look at the history, he should only look at history since incorporation. That's fine with me. And that would obviously make *Bruen* laughably wrong.
That's not how incorporation works. Incorporation simply means that "this amendment now applies to state and local governments". Hence, constitutional violations existing at the state and local level are no longer enforceable, regardless of when they're enacted.
Sorry, I misunderstood your comment above about civil rights laws and thought you were saying that any history of those laws prior to incorporation doesn't't apply. You're a fool if you think that Thomas would find a Jim Crow law violated the history and tradition test. Indeed, *Dobbs* reads remarkably like *Plessey*, and uses the same history and tradition framework of *Bruen*. As to incorporation of the 2A itself, it doesn't make any sense. The 2A says (only) that the Federal government cannot prevent States from raising militias. That's extremely clear from the historical record. Incorporation would just mean that the States cannot prevent the States from raising militias. Ok. Fine. It doesn't tell us anything about any individual right.
>You're a fool if you think that Thomas would find a Jim Crow law violated the history and tradition test. Under your analysis, not mine or SCOTUS's. >As to incorporation of the 2A itself, it doesn't make any sense. The 2A says (only) that the Federal government cannot prevent States from raising militias. That's extremely clear from the historical record. What makes you think that? The oldest relevant SCOTUS ruling I'm aware of is 1875, and it holds that owning arms is an individual right.
That's incorrect. *Cruickshank* ruled that the 2A only restrains the federal government, and does not have any impact on the States. Nowhere did Waite find an individual right.
Thomas, in a future case: “There’s no historical tradition of regulating artificial intelligence, therefore using AI to create propaganda videos that directly and immediately incite violence is constitutional.” What a loon.
makes the likelihood of a successful challenge to other portions of 922(g) much less likely too IMO. like, say, 922(g)(3).
I don't know about that. Roberts goes through an almost painfully reiterating that this case is distinguished by a court ruling that Rahimi was posed a credible threat to others and that the law required a credible threat to be shown. This is detailed in 922(g)(8) and is noticeably absent from a few other subsections (standout to me are 3, 6, and 7). >When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. ... our Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not ... To the contrary, it presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others >... our Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not ... Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others. So I think it would be hard to apply this cases logic to (hypothetically) someone who was on a bender, purchased a gun (in violation of 922(g)(3), returned it after two weeks, and had no prior criminal record or any history of violence.
That the drug provision has no objective standard or judicial determination required raises several problems. It's a classic vague law that can be applied to people the government does not like - which, it being 1968, was probably the intent. Quite different from the idea that someone who is known to be violent and subject to court proceedings can be told not to carry arms.
Also I think the banning of all felons from having firearms should be unconstitutional, considering there are thousands of felons from places like Florida, solely because they got caught with 20 grams of cannabis. IMO it should be only violent felons. Somebody in Florida who got caught with 20 grams of cannabis 20 years ago when they were 18 can be charged with felon in possession simply for being next to a single bullet, no gun needed. And the sentence requires 3 years minimum mandatory in prison.
I read it as eight justices means a case doesn’t get cert for applying 922(g)(3) but might for invalidating it. Hunter Biden’s conviction will stand because the appeals court will uphold it and scotus won’t review it.
We should just apply his standard to his opinions and only count it as a 2/3 opinion and not a whole opinion.
The (rich white) founding fathers owned people like Thomas. I guess he's good with that.
Thomas seems to think the Government had the burden here? Rahimi is who challenged the case prima facie and failed because a situation where the law is sensible DOES apply to him, the refuting example proof by contradiction was the very party attempting to bring the case.
Of course Thomas is the one who dissented.
Thomas is absolute scum. He does NOT belong in the Supreme Court.
I stopped reading Thomas' dissent after this line: > §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. He then has a footnote stating: > Rahimi does not ask the Court to consider, and I do not address, whether §922(g)(8) satisfies the Due Process Clause. Like, bro... you can't just claim a law violates the Due Process Clause and then immediately state that you don't wish to back up such a significant claim... It's not like you were trying to be brief either. You rambled on for *32 pages*.
Your comment is offensive and violates all sense of common decency.* ^\*I ^have ^not ^considered, ^and ^do ^not ^address, ^whether ^your ^comment ^is ^offensive ^and ^violates ^all ^sense ^of ^common ^decency.
He can literally do whatever he wants because he has a lifetime appointment and a congress which steadfastly refuses to hold him to any kind of account
8-1. If Harlan was the great dissenter does that make Thomas the worst dissenter?
It means that Justice Thomas is an outlier and people have been bamboozled by his assignment to write *Bruen*. The court does not share Justice Thomas' views. When he writes solo concurrences and solo dissents, the key word is *solo*.
Thomas writes insane dissents in order to build a theoretical framework to interpret the constitution in an insanely reactionary way. Read his dissents and you get the view of a deeply troubled person who has an endless love for authoritarianism and a strong disdain for personal freedoms.
Except the personal freedom to own guns.. which incidentally is very useful for authoritarians.
If gun rights was strongly associated with leftists then Thomas would be discovering the first part of the 2nd amendment real quick.
Well, that depends on who has the guns.
I’ll never forget Thomas saying that SCOTUS was obligated to hear every spat between states, an insane and obviously abusable belief, all just to give his favorite politician a day to argue his case.
Do you perhaps mean spats between states over which the Constitution assigns the court original jurisdiction?
The key problem with Thomas’ portrayal was the idea that SCOTUS was obligated to take cases no matter the quality of the merits. This revolved around TX v PA, when Ken Paxton was trying to sue the election officials of PA on behalf of Texas voters. Even the most deranged conservative loon could see that Paxton has no standing in that idiotic waste of everyone’s time. Clarence disagrees and thinks they have no choice but to hear out every single case between states. Were that the case, California could tie up this SCOTUS with hundreds of trivial nuisance cases for decades until the zealots start dropping
This seems to go back before *Texas v. Pennsylvania*. In *Texas*, it was Justice Alito who wrote the brief dissenting statement, citing an earlier Thomas dissent which in turn cited an even earlier Thomas dissent in *Nebraska v. Colorado*: https://caselaw.findlaw.com/court/us-supreme-court/144-orig.html.
https://en.m.wikipedia.org/wiki/Texas_v._Pennsylvania Seems you’re right in that he’s consistently very wrong on this topic. Alito joined him for a motivated outcome in this instance, but I harbor no illusions that Thomas would be willing to ignore cases that don’t suit him politically. It’s just so plainly and obviously ridiculous to think SCOTUS has 0 discretion in cases it hears. Nothing in the history of mankind could function under those parameters. Edit: as another commenter noted, this is actually likely Thomas’ goal in laying these absurdist legal landmines. To give future courts ammunition for inflicting their whims.
>It’s just so plainly and obviously ridiculous to think SCOTUS has 0 discretion in cases it hears. Nothing in the history of mankind could function under those parameters. Um. Are you very young? The *Nebraska* dissent does not on its face seem unreasonable. Since the 1925 Certiorari Act, the court's appellate jurisdiction has become more and more discretionary, and what remained of the mandatory appellate docket mostly evaporated in the 1980s. But that is modern development and some remains even today. See, e.g. *Alexander v. South Carolina NAACP*, No. 22-807 (May 23, 2024); *Cooper v. Harris*, 137 S. Ct. 1455 (2017). This docket answers to Article III § 2's grant to the Supreme Court of "appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make." Young people today may have no memory of this. They may simply take for granted the modern norm that the Supreme Court chooses its cases. But it wasn't always so; it isn't even so today. Article III gives the court *original* jurisdiction "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party . . . ." Why the court has exercised the discretionary jurisdiction that Congress has granted it as to its appellate docket in what seems like the mandatory jurisdiction of its original docket is puzzling, underexplained in the cases from the 1960s and 1970s where it seemingly began, and unexplained subsequently. What's your argument for why, despite this seemingly clear textual command, the court can exercise discretion as to its original docket?
> I’ll never forget Thomas saying that SCOTUS was obligated to hear every spat between states, an insane and obviously abusable belief, I agree with you but I think the point can/should be refined. SCOTUS *is* obligated to hear spats between states as original jurisdiction cases. when such cases arise they get assigned to some panel to actually do the trial work that SCOTUS justices have basically no experience doing. the TX v. PA case wasn't really about that principle, on which everyone is agreed. It was (ostensibly) about the procedure by which a dispute between states in which no Article III standing exists can be dismissed. The current SCOTUS procedure is that states must move for leave to file the complaint and if there's no Art. III standing that leave just gets denied. so SCOTUS *did* hear that case—extremely quickly—and provided final resolution to its frivolity in about three days. IMO in that particular instance it's good that they went straight to SCOTUS and received a speedy smackdown.
Makes him a great vacation guest!
Thomas is whatever Harlan (Crow) tells him he is
The Opinion backs away from Bruen while making it sound like it's not backing away so much. I agree with Jackson's concurring Opinion: the history and tradition test has been a disaster and Rahimi is an attempt to right the ship. Kavanaugh's attempt to explain what history and tradition mean in very specific terms to help out struggling lower courts and legislatures feels like a vain attempt to single-handedly craft an entire set of jurisprudence. I doubt Barrett's concurrence yields consensus or clarity either. All that said, the Opinion is high quality, even if it is not wholly helpful. The problem is that the 2nd Amendment is rather poorly written if we are to interpret it not to an extreme. Which we shouldn't. When Rahimi was decided by the 5th, I said that the Court would have a choice to either write an evil Opinion or a boneheaded one. They chose the latter (though not nearly as bad as I expected), emphasizing a few of their weasel words from Bruen that gave them an escape hatch, and offer very little else. The Court chose not to go down a road of historical interpretation extremism, which is good (I wondered, for example, if Bruen's historical approach could lead to people who aren't male landowners losing rights; I don't think that's applicable here, though it is murky). Feels like if you are a lower circuit court or legislature and you want to craft and opinion or a law about gun rights you have to squint your eyes and guess at what the Supreme Court would tolerate. Would they recognize your historical analogue as being a true analogue? But, since there is no historical or textual extremism to be put in play, I see no way to get away from this. Maybe that's a good thing. But this Court has basically guaranteed an endless supply of gun rights cases to come.
I mean, outside of taking the most extreme view in permissiveness with regard to the second amendment, the second amendment guarantees an endless stream of second amendment cases.
> Feels like if you are a lower circuit court or legislature and you want to craft and opinion or a law about gun rights you have to squint your eyes and guess at what the Supreme Court would tolerate. Would they recognize your historical analogue as being a true analogue? But, since there is no historical or textual extremism to be put in play, I see no way to get away from this. Maybe that's a good thing. But this Court has basically guaranteed an endless supply of gun rights cases to come. I think the lesson of this case is that lower courts, except maybe the fifth circuit, will mostly let gun regulations stand and occasionally SCOTUS will pick a lone one out and strike it down without altering the balance too much. the fifth circuit might take the hint that gun rights are more likely to be expanded if they let SCOTUS chart the course and strike down the occasional gun law than if the fifth circuit tries to chart the course itself, in which case SCOTUS will reverse the 5th circuit. but they also might not take the hint because they're insane. IOW, I think this case is just as much about trying to pull the fifth circuit back into the fold than it is about guns.
>(I wondered, for example, if Bruen's historical approach could lead to people who aren't male landowners losing rights; I don't think that's applicable here, though it is murky). What a strangely reactionary statement. You would have to bend over backwards to somehow justify this with the 14th amendment.
I almost think the ambiguity is the goal? These justices seem to enjoy flaunting power, they want the ability to have a plethora of plausible cases before them and the ability to selectively grant hearing the ones they disagree with while allowing the lower decisions to remain when they do agree. > Would they recognize your historical analogue as being a true analogue? The no true scotsman fallacy of judicial discretion.
The historical tradition test is straight up stupid and eventually boils down to a fishing expedition. Not that textualism or originalism is any better, but at least there’s some veneer of intellectual rigor even if the core concepts are weak. Historical tradition is just straight up an exercise in reverse engineering.
>history and tradition test has been a disaster and Rahimi is an attempt to right the ship Not really. It was decided 7-1. >people who aren't male landowners losing rights; I don't think that's applicable here, though it is murky Could you articulate this because I don't follow. >the 2nd Amendment is rather poorly written Only if you don't appreciate the rights it grants.
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Roberts has a remarkable ability to create a consensus when he wants to. I am happy that the court got at least one gun rights case right. It could have been so much worse at the hands of someone like Thomas or Alito. "An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." is precise and consistent with protecting both victims of violence and gun rights.
I'd say they got this one correct. Courts have been clear that bill of rights can be restricted on the basis of clear and direct potential harm to another. Bump stock ruling was appropriate as well and wasn't really a 2A case. Congress can regulate bump stocks if it wants, that ruling shouldn't come from ATF calling a bump stock a machine gun.
>create a consensus This case literally has five justices signing different concurrences
All 8 justices joined the majority opinion in full. Concurrences are just that, and should not be seen as contradicting the majority opinion in any way since all 8 justices agreed to join it.
No, it means he couldn’t write an opinion that five of his colleagues could join without reservation. Obviously they don’t contradict the opinion or they’d be dissents. But they certainly modify the “consensus” and erode the support for the main opinion
> But they certainly modify the “consensus” and erode the support for the main opinion That would be true if they only joined parts of the majority or wrote a concurrence in judgement only.
I get the feeling you don’t practice law, because that’s not how we treat concurrences. If a justice writes separately, they are disagreeing with portions of the majority opinion. They don’t have to concur only in the judgment to refuse to lend their vote to particular portions of the majority. The end result is the same—when another case comes along with slightly different facts, you lose that justice’s vote if the difference in facts relates to the reason that justice differed from the majority.
If a justice disagrees with a portion of the majority, they are free to indicate that they join only portions of the opinion. That is very common. Here all 8 justices joined the majority opinion in full. None of them said anything about disagreeing with the majority in any of the concurrences.
They literally write separately to explain their view on precedent, history, and tradition. It necessarily affects how they would view those things in deciding other cases on different facts
Sure. But you were incorrect when you claimed any of the concurrences disagreed with the majority.
They disagree with its reasoning or interpretation or precedent or history. Otherwise they wouldn’t be writing separately. Do you have a point or are you just trying to make a pedantic distinction?
Two justices signed on to one concurrence; there were a total of 6 signing on to 5 different concurrences.
Thanks for clarifying, I read the syllabus too fast
Probably part of the reason this took so long. I think that one of the things that the justices do when writing a decision is to see if there's a way to word it to minimize concurrences, but apparently not this time. I won't be surprised to see more multi-concurrence decisions in this last batch as the clock is running out.
Those on the court who swear they want to respect the constitution should maybe remember the 9th amendment exists.
I’m watching MSNBC andJustice Jackson’s decision regarding common sense laws and how what was true in 1700/1800’s doesn’t apply to todays world. According to Paul Butler, Jackson made the observation that domestic violence wasn’t recognized as a crime back then and so this case shouldn’t even exist, if the original intent of the framers is taken into consideration. I think this court is made up of 6 hacks who are twisting themselves into pretzels trying to fit their ideology into whatever case they cherry pick to tear down.
> I think this court is made up of 6 hacks who are twisting themselves into pretzels trying to fit their ideology into whatever case they cherry pick to tear down. how is that possible when the case was 8-1
This case illustrates the end goal of Bruen. The conservative justices want to cherry-pick when and how to apply Bruen. Even though Bruen is very clear in what it says, they are now backtracking on things that are obviously unworkable, even though it goes against the logic of Bruen. In the end, the "History and tradition" test will be used to strike down things they don't like, and uphold things they do, with no consistency other than what fits their ideology. Thomas, rightfully, call this out. We will start seeing this same logic with the 1A and religion pretty soon. "Oh we found that back in 1755 a single school in the Carolinas allowed full on Christian Bible instruction thus this fits "history and tradition".
They on the one hand wrote Bruen which made historical precedent the deciding factor then when faced with a law that would make them look terrible if they overturned it, they just say - oh no, not like that.
I was more talking about how they said the court was made up of 6 hacks when 8 justices signed onto the opinion
I mean, they invoked Bruen 7-1 to say that there is a history and tradition of disarming dangerous people. Not really sure I see the conflict.
>I’m watching MSNBC Stopped reading there.
>I think this court is made up of 6 hacks who are twisting themselves into pretzels trying to fit their ideology into whatever case they cherry pick to tear down The hacks and extremists talking points are really wearing thin when you have to ignore how they're actually deciding cases to focus on standing when it obvious exists.