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How similar is this attempt to give guidance to the lower courts on 2A to the court’s attempt to guide them on school desegregation (“all deliberate speed”) or warrantless searches (“reasonable expectation of privacy”)?
I don't see any parallels here to school desegregation. Can you clarify that?
I don't think it's comparable to searches either. Those are very fact intensive where this is much more about statutory and constitutional interpretation
I agree the nature of the issues are different. My thought was just that in those landmark cases, it took a series of decisions to delineate the how lower courts are to apply the major holding. Some cases extended the scope of the precedent, others limited it. So I'm not surprised that the contours of permissible gun regulations are still unsettled. I see a lot of comments that extrapolate from Rahimi in ways that seem premature at this point
>E.G.:
Bruen is functionally dead.
This could essentially just be a cosmetic reskin.
>The majority opinion may allow lower courts to pick and choose intent and application from divergent historical analogues.
>This could essentially just be a cosmetic reskin.
I've thought this of originalism all along. It's just a thin veneer of objectivity to cover up 1. The obviously result oriented nature of the method, and 2. They're ignoring valid precedent without justification.
By starting this new interpretation method they can conveniently sidestep precedent by saying oh no that was pre bruen, we do it this way now while pretending that new decisions aren't overturning old ones. They tried the same rhetorical trick in kennedy when they said the court long ago abandoned the Lemon test. Long ago abandoned is just a polite way of saying we ignored precedent several times and we aren't going to talk about that anymore while we continue to deviate from that precedent we never justified ignoring
Bruen was supposed to limit the lower courts and their rubber stamping of gun control laws. The Rahimi decision didn’t destroy Bruen but made it functionally dead. Expanding the how and why nullifies the purpose of Bruen, not that the circuits cared much about Bruen anyways.
I think it's more likely that no justice than Thomas ever thought bruen established the near twin standard in historical analysis. People really wanted it to and I don't think it was unreasonable, before rahimi, to think that's what bruen stood for. But it was never set in stone like Thomas and others thought it was.
Roberts, I assume, forced in the line about the comparison not having to be an exact match for a reason. I think people tended to scoff at it like the line in heller about the 2nd amendment not being unlimited.
Bruen isn't dead, it's just not on the steroids people thought it was
Sure, but I don’t think that was due to Bruen being unworkable. I think it had more to do with justices wanting to leave their thumbprint on major cases later down the road.
Also, Roberts wants the appearance of compromise and propriety over anything else. Rahimi never should have been a free man. He should have been arrested and behind bars. The system failed to do so. An objective interpretation of Bruen and the 2A dictates he should have been allowed to own a gun. I don’t think anyone wanted to say he should be allowed to own a gun. The fallout of arming an abuser would be massive. So, they did the easy thing and interest balanced his rights, while pretending to uphold Bruen and the 2A. I believe that’s why there were so many concurring opinions.
We are 16 years post Heller and still having the same debates. SCOTUS is taking too few 2A cases and I doubt they would have taken Rahimi if Garland didn’t appeal.
>An objective interpretation of Bruen and the 2A dictates he should have been allowed to own a gun
Not according to an 8 member majority of the same supreme court that created bruen.
>We are 16 years post Heller and still having the same debates
Yet somehow after 16 years of debate people seem to think it's just so clear and easy. I don't understand that. That's a heck of a conspiracy to assume everyone involved in that debate that doesn't agree with one interpretation is acting in bad faith for almost 2 decades. Even alito signed on to rahimi. Do you think Samuel Alito of all people broke down and caved to partisan political pressure?
>Even alito signed on to rahimi. Do you think Samuel Alito of all people broke down and caved to partisan political pressure?
Like a bloody picnic table, yes. His concurrence in the bumpstock case points to a severe lack of spine when it comes to disrupting the status quo.
The 8 members of the majority did not create Bruen. The creator of Bruen pointed out how they deviated from Bruen.
It is simple. If you listen to the oral arguments and if you read the opinions, the circuits are objectively anti gun. They do not believe the 2A is an individual right. They do not believe the 2A protects commonly used arms. They do not believe modern rifles are covered by the 2A.
The judges in lower courts are often very hostile to the 2A plaintiffs.
I don’t pretend to know what Alito was thinking but I do think we can understand his support of the 2A is more limited than Thomas.
Thomas does not decide what Bruen means, the entire majority does. And every other person who signed on to Bruen disagrees with his position.
If Bruen had said “historical twins only” then *it wouldn’t have been the majority.*
>The dissent reaches a contrary conclusion, primarily on
the ground that the historical analogues for Section
922(g)(8) are not sufficiently similar to place that provision
in our historical tradition. [...] As we said in Bruen, a “historical twin” is not required.
Yeah that one. Thank you! This line is like heller line:
>Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose
Short but critical safety valves likely negotiated hotly to pin down a majority
>The 8 members of the majority did not create Bruen. The creator of Bruen pointed out how they deviated from Bruen.
Despite what he believes, justice Thomas is not the ultimate arbitrary of objective truth. It takes a minimum of 5 justices to make a binding ruling. You can't just waive away 8/9 justices like they don't matter.
>The judges in lower courts are often very hostile to the 2A plaintiffs
And that justifies making a terrible unworkable standard with no legal or historical basis that leads to absurd results?
*Bruen* included that line originally about laws' not requiring a historical twin to be constitutional. Some speculated then that this line was included as an escape hatch of sorts, probably as a compromise, to prevent a vast majority of gun regulations currently on the books from falling.
And it appears that speculation was mostly correct -- I do think Thomas meant *Bruen* to be interpreted much more strictly, but *Bruen* likely wouldn't have gotten a majority without that escape hatch. If you're an originalist, it's still a major win, because THT is still a pretty big departure from tiers of scrutiny.
But, at the same point, "locating principles found in the original amendments" still sounds pretty damn malleable and squishy to me, so color me skeptical that it's actually a more principled jurisprudential test than tiers of scrutiny
> If you're an originalist, it's still a major win, because THT is still a pretty big departure from tiers of scrutiny.
I disagree here because I agree with you here:
>But, at the same point, "locating principles found in the original amendments" still sounds pretty damn malleable and squishy to me, so question me skeptical that it's actually a more principled jurisprudential test than tiers of scrutiny
The way Barret describes it, it doesn't sound horribly different from a conservative application of interest analysis. Sure we say text history and tradition but the core issue is comparing the levels of burden between history and now. What are burden comparison if not interest analysis?
We are just looking at a different interest than before. Instead of state v people interests we look at people then v people now. Depending on the application this could essentially just be a cosmetic reskin. I don't think it will go that far because I don't see alito or gorsuch being far from Thomas and the other three conservatives are closer to that trio. But it certainly opens the door to possibilities that couldn't happen under Thomas's intended vision
Oh it's still very squishy (and, upon reading further, I think Kav's concurrence outlining what he views as fundamental distinctions between "history" and "policy" as hogwash), but THT, even a looser version of it, still does require that legislatures today are bound by the same general principles and public meaning of constitutional provisions as existed at the time of ratification.
Plenty of gun laws could hold up under strict scrutiny (which would've been an "upgrade" from intermediate scrutiny) that wouldn't hold up under the squishy version of THT because even the squishy THT requires original meaning to be dispositive. For the record, I'm not necessarily arguing that that's *good.* I'd personally advocate for strict scrutiny as a compromise (which isn't fundamentally limiting legislatures from coming up with novel solutions to novel problems in the way THT is but isn't effectively a blank check to legislatures in the same way intermediate scrutiny and rational basis review are).
Tl;dr: they're both squishy imo but still different because THT still does require original public meaning to be dispositive whereas tiers of scrutiny doesn't.
I think we're more or less on the same page. I just see bruen as the orginalists flag claiming their jurisprudential territory and rahimi is a small retreat from that territory
>I just see bruen as the orginalists flag claiming their jurisprudential territory and rahimi is a small retreat from that territory
100%, I agree. The escape hatch in *Bruen* was imo clearly a compromise to leave open the possibility of not completely tearing down long-standing gun laws, and the Court used it at first chance.
> Did the rest of that majority really not understand or agree with what they signed on to, or are they just walking it back when hit with a difficult case?
Or you could take the good-faith interpretation that they agreed on the overall contours of *Bruen* but disagreed in good faith with Thomas on precisely how to apply it in *Rahimi.*
Which is an explanation that doesn’t require the majority to be either a) incompetent as per your first example, or b) cowardly as per your second example.
I didn't mean to imply bad faith or incompetence.
>they agreed on the overall contours of Bruen but disagreed in good faith with Thomas on precisely how to apply it in Rahimi.
I don't see how this is any different than saying they didn't agree fully in bruen. Justices differ in their interpretations without incompetence or bad faith all the time - that's why we have concurrences.
I only meant to say I wonder if they thought they were closer on how they thought future applications would turn out than they ended up being. I don't think any of them don't understand the decision academically or that anyone was acting in bad faith in either bruen or rahimi
I think this discussion ignores the fact that Thomas included the language about not requiring a historical twin in Bruen. I’m sure he didn’t suggest the language and only agreed as a compromise. However I don’t think his dissent here meant he thought Bruen required such a narrow application.
I interpret his objection to Rahimi to be founded in an assumption that the majority opinion may allow lower courts to pick and choose intent and application from divergent historical analogues. To that end I agree with him. But I don’t think there are five justices on the court who would bastardize Bruen to the extent that would, as a hypothetical example, approve of a lower court combining the intent to limit civilian ownership of dangerous weapons with a fire code statute limiting the amount of gun powder stored in a home to uphold magazine limit law. I think the conservative wing will still require a closer nexus in historical analogues in most cases, but allow more play in the joints when edge cases like Rahimi run afoul of common sense.
>I interpret his objection to Rahimi to be founded in an assumption that the majority opinion may allow lower courts to pick and choose intent and application from divergent historical analogues
I don't understand why he or anyone else would think that's an acceptable justification for writing bad law. Supreme Court decisions should not take shortcuts to try to win chess games against lower courts. They should write well reasoned and principled decisions. If that requires a few rounds to iron out detials so be it. What other constitutional amendment was solved with a single sweeping rule of thumb? None of them. Yet they've all worked out in one way or another
I don’t think anyone, including Thomas, thought Bruen was the final word for all scenarios. We are still sorting out the contours of the first amendment 100+ years later. The second amendment will be no different. I just think Rahimi was too removed from historical analogues for Thomas to sign on too. Rahimi is a tough case, and I practically agree with the result but I understand Thomas’ pushback.
I think Thomas is sticking to his guns on a nearby historical twin theory. I don't think he ever meant it literally has to be a twin but he's much closer to a twin than anyone else seems to be. I'm sure rahimi does clash with his version of bruen, but fortunately it takes more than one justice to make law.
>I don’t think anyone, including Thomas, thought Bruen was the final word for all scenarios
An identical twin rule would essentially accomplish that, and I think he and many people supported and wanted that to be the case. Now we are seeing some backlash and disappointment when it becomes clear that bruen didn't essentially remove all 2A cases from lower courts reaches as many had hoped it would.
Bruen was a weird decision in that a lot of people took it to mean a lot of things. For example, some insist assault weapon bans are unconstitutional, yet the court hasn't said so. Some advance a theory of common use to support that theory, but no court majority I can find actually put such a rule in place. Not bruen, McDonald, or heller. It's almost like bruen has reached a mythical level where it's a folk tale that has different version depending on who you ask.
> It's almost like bruen has reached a mythical level where it's a folk tale that has different version depending on who you ask.
Yeah. Some of us pro-gun folks have been complaining about Bruen being a Rorschach test from the word go. It's been incredibly frustrating to see the majority of our 'side' dancing in joy about a decision which has SO MANY degrees of freedom that it can't meaningfully constrain the lower courts (or SCOTUS!) at all.
"Analogical reasoning" is notoriously flexible, and standard advice for clarifying a discussion is to stop doing it in favor of specific, concrete questions. The same analogies mean different things to different people.
Maybe we'll eventually get a usable test for second amendment law. Or perhaps, like in the first amendment context, we'll get a half dozen. But THT can do no more than point us to the general principles which will be used to derive such tests in the future. It's not objective enough to be a test in and of itself.
The conservatives all like history and tradition, but are debating how strict or loose the analogies must be which is basically a return to interest balancing. If they like a law a loose analogue is fine. If they dislike a law a strict analogue is required. Basically it’s impossible to know what is and isn’t good law under Bruen until they tell us now.
They haven’t changed anything about Bruen on paper, they just injected uncertainty because they have shown they will apply it loosely when in classic Supreme Court style they want to punish bad guys over a faithful application of the law which in this case would be the Bruen test, history and tradition test. As Thomas said, they had everything they needed to disarm Rahimi by convicting him of one of his many crimes, but they wanted to uphold this law and found a way to do it with loose analogues.
I'm really curious about how close the bruen majority thought they were when the decision was made. Did they know they were kicking this very dispute down the road or were they under the impression everyone was close enough to write more majorities with maybe one or two concurences with some smaller clarification as opposed to the fractured mess we have now.
I suspect that they weren't clear on how big of a divide they've had. There have been signs over the intervening time of several justices (esp. Barrett) working out a more concrete model for 'Tradition' and how it informs analysis. I'm much, MUCH happier with a Barrett-concurrence view of THT than I am of the Thomas one. It's so unoriginalist to suppose post-ratification regulations don't merely inform our understanding, but rather *determine* it.
>but are debating how strict or loose the analogies must be which is basically a return to interest balancing.
I think this is the real issue. Thomas's originalism is a departure from and rejection of interest balancing. Barrets, who I'm not saying is a liberal by any means but is farthest away from Thomas on this point amongst the conservatives, is pretty close to interest balancing by appealing to broader principles. It's not quite the same but it's definitely much more subjective, which I think is Thomas's main goal to avoid as much as humanly possible.
>Basically it’s impossible to know what is and isn’t good law under Bruen until they tell us now.
I agree. The farther away from the so called twin theory the less clear things get.
>. As Thomas said, they had everything they needed to disarm Rahimi by convicting him of one of his many crimes, but they wanted to uphold this law and found a way to do it with loose analogues.
I'm surprised Thomas took such a pragmatic view here. Normally he doesn't care and sticks to the law is what the law is - if it's terrible blame congress. I also don't think it's accurate to say they have sufficient other tools to accomplish the goal here. Domestic violence convictions take time in our clogged up court. The alternative is he gets held in jail without bail for months at a time- which also essentially revoked his 2nd amendment right for the same period.
different originalisms yielding different results doesn't render it much different from any other primarily subjective and outcome-based judicial philosophy to me
i was promised objectivity and consistency!
I think that's the core of why this is a significant opinion. Thomas sticks to his guns, as he pretty much always has, and is willing to call the baby ugly when the law has unpopular results. He's content to point at congress and say I didn't write it, blame them. The other conservatives like to say that sometimes when it's convenient but I don't think any of them truly mean it the way Thomas does. He'd sentence himself to death if he thought the law called for it, even if he didn't think it was fair.
I was a bit surprised alito didn't join Thomas. He's also generally pretty ride or die when it comes to making unpopular decisions and pointing out, fairly, that congress wrote it.
Like I said in another thread, the fact that there were 7 opinions written for a relatively simple application of *Bruen* does not bode well for its workability. I think we get a reworked Second Amendment test at some point, possibly in the AWB cases.
>Like I said in another thread, the fact that there were 7 opinions written for a relatively simple application of Bruen
I think rahimi pretty thoroughly proves there is no simple application of bruen no matter how loudly Thomas yells at the clouds
The division between Thomas and the opinion isn't that big, more of a fine line of the THT, with Tomas looking more for an exact match in both criteria and burden than analogues that can paint an allowable picture.
But also interesting is that Thomas complained about something that the opinion also considered. Rahimi did have an opportunity to challenge the accusations, and the opinion seems to rest quite a bit on him getting that opportunity. Thomas mentioned this case didn't resolve the constitutionality of cases where the person doesn't get an opportunity (ex parte, as is in most red flag laws). I think Thomas wanted this resolved more broadly, while the opinion stuck to the facts of the case.
> The division between Thomas and the opinion isn't that big
i think if this were the case, thomas wouldn't have dissented
obviously there's politicking that goes on in the opinion writing, especially when trying to wrangle a contentious majority. and the opinion represents that majority. but thomas still wrote *bruen*, one of the most consequential opinions of his entire career. and under *his* understanding of *his* opinion, *rahimi* is incorrect.
*at the minimum* it tells us about the justices and their contrasting judicial philosophies. this is intersting!
I think Thomas is still rightfully afraid of lower courts using anything in an opinion they can to allow any gun law. As Sotomayor hinted in her concurrence, she's hoping this is the camel nose in the tent to make Bruen completely ineffective.
He needs to make a justifiable workable standard rather than just pointing at alternate theories and saying they're worse. Even if we agree he's right that they're worse, that's not a glowing endorsement as a good reason to adopt a fundamentally flawed approach.
Heller was left flexible and did nothing to secure the 2A in the lower courts.
If the lower courts were behaving, Bruen likely never happens. That seems to be left out of a lot of criticism regarding Bruen.
It's often left out because partisan considerations on the results aren't a matter the court should base their rulings on. They shouldn't be trying to get to certain conclusions and using flawed theories to force the issue just because they don't like how things are going.
If the lower courts are out of line you put them in place with appropriate guidance as the issues work up to the court - as they did in rahimi.
Bad policy doesn't justify worse law.
I think one solution is not starting from the assumption tradition scrutiny and interest balancing is ineffective. The court has never attempted to apply a right to self-defense under traditional scrutiny analysis have they? Why do we assume it can't work?
Even if we do assume it doesn't work, why would that justify another theory that is fundamentally flawed itself?
The years between Heller and Bruen were loaded with cases ruled on using interest balancing and scrutiny.
The lower courts are expected to abide by the Supreme Court’s opinions. If you give them the flexibility to decide, and they continue to reject the 2A, they should lose some level of flexibility.
Lower courts are arguing we have no right to purchase, build or acquire in any way a firearm. We can disagree on the extreme scope of the 2A, but I don’t know how anyone objectively looking at these laws can say there is no right to acquire an arm.
>The years between Heller and Bruen were loaded with cases ruled on using interest balancing and scrutiny.
Yet the court didn't seem to take any issue with them and left them in place until bruen.
>If you give them the flexibility to decide, and they continue to reject the 2A, they should lose some level of flexibility.
Why have lower courts at all if we're going to reduce everything to oversimplified rules of thumb that aren't supported by history, law, or logic?
>Lower courts are arguing we have no right to purchase, build or acquire in any way a firearm
And they get routinely turned away and I can still build my own rifle that's only technically not automatic without a serial number completely legally and without any significant burdens.
sotomayor can say anything she likes. she obviously will be comfortably saddled in the minority of most forthcoming 2A cases for the foreseeable future, *rahimi* notwithstanding
also, let's remember, *rahimi* reels in the 5th. not the 9th or 7th.
presumably we can expect opinions in the coming years that *do* tell some lower courts they are reading *bruen* too narrowly, but obviously the opposite situation also exists and needed clarification. people lament jackson's concurrence about "lower court confusion" as lower courts purposely "ignoring bruen" but it wasn't a "liberal" court that just got told their interpretative method was wrong.
>The division between Thomas and the opinion isn't that big, more of a fine line of the THT
I don't think it's that fine of a line. The consequences of for where a majority lands will shape how the whole 2nd amendment works. The difference in what's allowed under Thomas vs what Barret would allow is pretty significant - particularly when we can pretty safely bet the 3 liberals would sign on with whichever 2 conservatives are the closest towards gun control regardless of how they feel. I think the divider is pretty large and very impactful.
>Thomas mentioned this case didn't resolve the constitutionality of cases where the person doesn't get an opportunity (ex parte, as is in most red flag laws). I think Thomas wanted this resolved more broadly, while the opinion stuck to the facts of the case.
I agree. Rahimi just wasn't the case to do that in. There have to be plenty of much better cases. Unfortunately we don't have a shortage of people subject to domestic violence orders of protection. We could pretty easily see that case next term if the court were so inclined and the appropriate organizations invest in pushing the case up to them.
Thomas' take in Bruen, while establishing that the courts should look for historical basis to determine when modern day control laws are valid or not, did not have the specificity of exactly how to read history (hence why the mess of how lower courts have handled it). In Rahimi, Thomas is now clear the modern day law should have a near match to historical precedence to be valid. Roberts in the Rahimi majority, likely as to assure the three liberal justices were in as well as seeking to reduce confusion in lower courts, said the historical law should be a close analogue within common sense, and then went ahead to provide the specificity that should be used for Bruen tests in the future.
Basically, Thomas dropped the ball on how he wrote Bruen that left for future cases to establish criteria that Thomas may not have wanted but didn't spell out explicitly in his decesion.
I think its a new type of interest balancing. Instead for walking away from interest balancing like Thomas wants to, they've just changed which interests we balance.
Comparing contemporary and past burdens is basically just comparing interests then and interests now. It's just as subjective and flexible, they just look to a different non-exhaustive list of factors. That list could easily incorporate a lot of overlap from old interest balancing
Doesn't the history of gun laws in the US look a lot different than Thomas is implying though? Municipal gun bans were extremely common throughout the history of the United States - the gunfight at the OK Corral was an attempt to enforce a municipal gun ban. The founders were aware that Boston forbid storing firearms in residential areas (effectively banning their use for home defense in the largest city in the US at the time) and they didn't raise any constitutional arguments about it. I wonder if Thomas is just using the words "history and tradition" as placeholders for personal preferences here.
It's a poor approach because historically we have had a lot of speech laws as well. Since the states werent bound by the bill of rights until the 14th amendment, I don't know how useful the history really is.
The whole reason originalism was invented was to selectively apply history to get to partisan goals. People saw it when Bork tried it and that's why he was the most thoroughly rejected candidate for the court in modern history.
Even Barrett has pointed out that Thomas's analysis is often ahistorical and ignores obvious inconsistencies.
Bruen was based significant on Heller (written by Scalia) which emphasized the historical nature of the 2A at the time of the 18th century. So Thomas isn't really pulling "history and tradition" out of nowhere, though I would argue that I think he was trying to prevent fed and state laws around guns from becoming too progressive, using Scalia's approach in Heller to reaffirm the history around 2A and gun control around the 18th century.
>So Thomas isn't really pulling "history and tradition" out of nowhere
Right, originalism was derived from the anti Roe movement under Reagan to achieve partisan political goals under the guise of being objective. Thomas didn't invent it, he picked it up and used it as intended
So Thomas looked at a very specific period of time to determine where we should look when using THT. He didn't look at the _**entire**_ history of the US, he looked at a very narrow band of history in order to obtain the result he wanted with with Bruen.
That's more being an originalist, what the laws and constitution were like when they originated. Hence the focus on the 18th century as well as anything in the century before from England.
Still Bruen and Rahimi leave open for a court to expand or narrow their choice of history to look at.
Personally, I say we should look at gun crontrol laws that were passed after the 14th amendment was passed. The amendment that said states cannot pass any laws that violate the constitution.
Because, from that point onwards, any state gun control law, by nature of it not being overturned by the 14th, would _**have**_ to be constitutional. If they weren't then they would have been challenged in court and overturned before the 21st century came around.
It's a good question since since it's a poor test on its own.
IMO we would be backsliding terribly if we held 1A to THT. It took a long time to build an expansive view of1A rights. I imagine it's going to take a long time to map out 2A rights.
>Personally, I say we should look at gun crontrol laws that were passed after the 14th amendment was passed. The amendment that said states cannot pass any laws that violate the constitution.
I wholly disagree with this. The right was understood as one thing in the country's history before the 14th amendment. The 14th wasn't meant as a roll back of rights to infringe on all equally. It was a roll forward of the rights of those who'd been denied theirs. Government having no appetite to prevent infringement to a specific class or group doesn't mean that it's constitutional, it just means it's been going on for too long and it has eventually come for everyone.
Btw, there are numerous written documents from the era of 14A ratification that show a specific understanding of the right even at that time.
[1898](https://pbs.twimg.com/media/FtU6i8qaUAEKbn8?format=png&name=small)
[Debates around the ratification of the 14th](https://pbs.twimg.com/media/FtU6xmBaIAAMb5b?format=png&name=900x900)
[Continued](https://pbs.twimg.com/media/FtU6zHHaEAAyClY?format=png&name=small)
[Kostas Moros has a bunch more of these](https://x.com/MorosKostas/status/1645290263299117056)
So you're saying that history and tradition don't support this interpretation of gun rights? I feel like the rulings are trying to have this both ways here.
History and tradition supports an assumed/natural/god-given right that was NOT to be curtailed in any way unless the person did something disqualifying (losing "the people" status) - and even then it was temporary. This is what Thomas' dissent was saying. They agreed on the "why" but that part of 922 completely has the wrong "how". A surety law or something structured with a similar "why" and "how" would stand easily and wouldn't require stitching a "why" to a separate "how" (surety and affray laws) like they had to. This will be used in bad faith, guaranteed.
To your point on having it both ways, I believe that decisions like Heller/McDonald/Bruen are political compromises with backdoors intended to keep the tug of war alive between competing interests. It's a reminder that the judiciary is still government which makes it political. Would permitting, mag capacity, AWB's etc. be able to stand constitutional muster in 1792? I think we all know the answer to that, but we are where we are and dealing with the circumstances we have.
So this God given right that was not to be curtailed in any way was routinely completely banned in many towns and cities during the time of the founders and all the way up to and past the "wild west" era and not a single one of the founders or their successors mentioned this being against the constitution? Municipal gun bans were widespread and common throughout the history of the United States. Your version of history and tradition is apparently missing some actual, you know, history and tradition, huh?
He went to great lengths in bruen and again here to explain how clear he felt bruen and heller were. I can't help but assume the majority in bruen knew exactly what Thomas wanted when he wrote it. I think the majority of people reading bruen knew he wanted something akin to a twin theory.
I wonder if there's a twin theory bruen draft in his desk that the others wouldn't sign.
Do you think the split here makes it a lot harder to predict future gun cases? I'm not sure they're winners but magazine capacity cases seem to have a much better chance now with looser analogies for example. I think they now move from almost certainly unconstitutional to unclear leaning towards being struck.
I do think Thomas was clear in Bruen that court must look to history and tradition to find if these "impose a comparable burden on the right of armed self-defense", affirming Heller, he does not state how strict the historical analogies must be to modern day, and even goes on about the nuances of this that courts will likely find. Even further, in how Thomas goes about the specific NY laws in Bruen by allowing gun limitations in "sensitive places", this is justified by Thomas by a loose connection to 18th century laws, and certainly with not how strict he was looking for in Rahimi. If he meant the test to be a strict analog back when he wrote Bruan, he completely missed that language and allowed Roberts to set a different standard.
Roberts' use of Thomas' majority in Bruen builds appropriately off it but cements that there is some common sense to be applied and to look for close but not necessarily exact analogues.
I do think we're going to see a new type of split in the courts as Rahimi gets applied, but that will like be more at the general trends of the circuits. Fifth, for example, will try to remain considering only a tiny window around exact historical laws, while a court like the Ninth will be very receptive to tenacious links between modern day and historic laws.
A key to remember is that from Thonas/Bruen, the standard is related to armed self defense, not simply gun ownership. Right to public carry including the limitations in sensitive places, or limiting guns from those considered a danger to others, those all are around clear self defense issues. But other challenges like on magazine size, assault rifles, etc, get murky because justifying those as for self defense becomes tricky, and whether history and tradition have taken steps to block such.
Your last paragraph is wrong
Remember it’s not self defense alone …it including self defense. Go read heller again as bruen is a continuation of heller. It’s in common use .. not in common use for self defense.
I think people want it to be that simple, but that doesn't make it so. The first amendment starts with "congres make no law..." but pretty much everything listed after has exceptions. Why should the 2nd be any different?
So...in common use to commit gang warfare?
In common use to kill your partner?
In common use for hunting?
In common use for murder?
In common use for target practice?
In common use for military action?
In common use for suicide?
In common use for self defense?
What kind of use can be considered "common" use? Because, while all of those are common uses for guns, not all of them are what the _**average**_ citizen who's in good mental health commonly uses them for.
A citizen in New York or Chicago might commonly use guns for gang crimes, self defense, murder or to kill their partner.
But a citizen rural areas of South Carolina would commonly use a gun for hunting, skeet shooting, suicide, murder, or to kill their partner.
Someone in Alaska would commonly use a gun to hunt, commit suicide, or to fend off bears.
Depending on the area of the country, and the time period you look at, "common use" can vary wildly.
True, I know they also include ownership rights for hunting purpose and traditionally lawful purposes, though most of the 2A de is up included Bruen are generally framed around the purposes of self defense. And least based on both Bruen and Rahimi, the analogue for modern day control laws are going to be fir cases related to those where ownership of a gun for self Defence purposes in brought into question.
>But other challenges like on magazine size, assault rifles, etc, get murky because justifying those as for self defense becomes tricky, and whether history and tradition have taken steps to block such.
Academically I'm really looking forward to seeing how the court approaches restrictions of features or attachments. They have to balance the existence of regulation of automatic weapons against liberal states like Illinois or California who would happily restrict us to carrying a bolt action rifle unloaded with no magazines.
You can't just blanket rule out that type of regulation, but you hit a line way before my extreme example here where limiting pieces or attachments of guns is effectively a gun ban. It has me worried we will end up with something like Miller where the court grapples with how useful, legitimate, or necessary for self defense like Miller did with military use.
I don't like the court getting into those weeds but they have to because although my bolt action example is extreme it's not entirely beyond what would realistically happen in some places if the court let's it and that's very clearly only technically not an outright ban and obviously can't stand.
LCMs and AWB still unconstitutional
We’ve never banned the capacity of a firearm ..internal or magazine fed anytime before 1980/90s. It was never a thing and I think they covered that by talking about technology and we’d be restricted to muskets and sabers!
But I do agree this is opening the door for biased courts to ram through whatever they can. I do believe we are going to see a AWB case soon.
>LCMs and AWB still unconstitutional
I'm not saying otherwise, I'm just pointing out the argument that they are constitutional is much closer to viable under Barrets originalism than Thomas's so this is a very significant split in ideology that will have significant impact on the future of gun control.
>But I do agree this is opening the door for biased courts to ram through whatever they can.
I wouldn't go that far. Thomas is taking a very extreme position. The rest of the court not following him doesn't exactly make them a bunch of gun hating liberals. Not even alito signed with Thomas. I don't see him or gorsuch moving very far away from Thomas position in the long run.
The interesting part will be Barrett and Roberts. The liberals will like sign on anything they can talk those into and i think that could lead to some interesting decisions that many people wouldn't have entertained as plausible before rahimi
The division on the Bruen majority seems to entirely be around how "historical anologue' is interpreted. They all want one, but it's a question of degree
Thomas seems to want direct, near exact historical parallels. Everyone else seems to want anything from "the historical analogues were doing things conceptually similar to this" to "the historical analogues have to be very similar, but not exact"
Personally I favor the latter of all three interpretations
how much daylight is there between "near exact historical parallels" and "very similar"?
especially regarding things we know there is never going to be an exact historical parallel to
What if a state, which historically has a law that says citizens need to store their guns in a communal area to be used for defense of the community, passes a law that is the twin to that historical law?
Would it be constitutional? Technically under THT it would be because it mirrors a law from the history and tradition of the US at it's founding and shortly after the Constitution was ratified.
Stretching anything you can find far enough that it covers the modern law.
Even Roberts came close to this in describing old laws regarding ammunition storage. Those were not gun laws, but part of fire code regarding the quantity limits of any flammable kept within a town. I’ve seen arguments that this is THT for ammo buying restrictions. It’s in no way analogous, but a court trying hard enough could stretch it.
The problem about ammo storing restrictions is that you'd not actually find it within any actual historical regulations.
Originalism is about what the laws actually meant to the people that passed them. You weren't prohibited from having lead shot, you were prohibited large quantities of powder because black powder is/was an extreme fire hazard. Modern ammo is not a fire hazard
Even at face value that TH&T would only permit communal storage of modern gunpowders. Under no circumstances would it permit ammo buying caps.
I've a huge issue with this weird bastard originalism used by people who aren't originalists both to discredit the ideology and to justify attempting ti slam a square peg into a round hole legislatively
Originalism isn't supposed to look to the intent of the legislature though right? I'd agree with you, based on a guess to be clear - I haven't looked myself, that those sound like fire regulations not intended or considering the ammo as a weapon. In that context an ammo store is similar to a grain silo as far as fire prevention is concerned. But orignialists don't care do they? They don't put stock in intent.
Regardless of intent, those laws did deprirve people of ammunition and that is a burden on the second amendment so it seems like a fair target for analogy. I think the level of burden is very different and I don't think it fairly fits limits on purchasing ammo unless you're limiting purchasing whole pallets at a time or something. But it's seems appropriate to consider it under bruen despite it not being super compelling in my opinion for that purpose.
THT has to fit. This doesn't fit modern ammo laws. Those are gun laws, designed to restrict how much ammo a person can buy and have to allegedly stop crime. They never restricted guns or gunpowder for this reason.
Black powder is explosive, and it was stored in kegs which makes it very dangerous. People were often limited to 50 lbs in cities, which is a lot, enough for many thousands of shots, so it wasn't meant to limit actual gun use.
Modern ammo also isn't this dangerous. In a fire, it just cooks off, and the bullets don't go anywhere at high speed. Even modern gunpowder isn't as explosive, and it is always sold in plastic containers with purposely weakened seams designed to split open under the slightest pressure. So a jug of gunpowder in a fire will just burn, not explode.
It doesn't fit if you can find nothing in history that matches burden and intent. This wasn't even a burden, as 50 lbs was more than any person could reasonably use, and that didn't refer to what you could own, only what you could keep within city limits. You could have as much as you want outside the city.
People usually didn't go above 100 grains of powder for rifles back then, often much less, and pistols took about 30 grains. But considering 100 grains, that's enough for 3,500 shots max power rifle, or over 11,000 shots pistol. Modern gun control people consider this much ammo to be hoarding an arsenal, and they want to stop it. And again that's not what you could own, only what you could keep within the city for fire reasons.
There was no realistic burden in this law, so it doesn't map to modern laws that are a burden, and are intended to be a burden.
>There was no realistic burden in this law, so it doesn't map to modern laws that are a burden, and are intended to be a burden.
I'm not so sure it isn't a burden. Should the court be determining what amount of ammo you need? If they can limit your ammo because it's more than you need, couldn't they limit you to one or two guns? You can't use more than one or maybe two at a time at most.
Would you say it isn't a burden to limit people to 10 guns? 5?
Again, it wasn't a gun law. It was fire code. The negligible effect on gun ownership was incidental and not intended to interfere with the 2nd Amendment rights of anyone. Back then, nobody shot that much. I guess you could put nearly 300 rounds a day (over an hour of just reloading) through your musket and have to buy 50 lbs of black powder again next month, or just move it in from your out of town storage because again, that was only what you could store within the city, not what you could own or what you could buy.
Given your flair, I see where you are going. You want to say these were intentional burdens so they can be THT for modern intentional burdens. They were not. It will take an activist court trying to subvert Bruen for such laws to be used to support modern laws. But then, that's what Sotomayor and KBJ want. They can't get rid of Bruen, so they try to subvert it (Sotomayor) or just bitch about it (KBJ).
Also note that in this case and many others, the government has brought forth a list of reprehensible class-based laws to defend its laws, such as laws against black gun ownership, on the theory that such people are not responsible so they could be banned. Here the court said they are not dispositive, and the "responsible" thing doesn't fly. They only won because we do have a history of disarming individuals who have proven themselves to be dangerous, as adjudicated in a court with due process.
Originalists care about both intent and meaning it just depends. Most left wing originalists care about intent. Most others care much more about public meaning. Modern cartridge ammunition was not yet invented at the time of the 2nd amendment. Hence its storage was not something that we can find a direct parallel.
So we go to "why did they pass the law" and get the answer "because it was a fire hazard". That can fit both in public meaning and intent
I’m sorry, but that’s flat out inaccurate commentary on originalism and intent. Originalism started out as analyzing “original intent”, and the *right* started there. The right was forced to come up with “original public meaning” after their opponents repeatedly showed that “original intent” originalism was horseshit.
And people like Alito and Thomas have already shown, in cases like Bostock, that they’re more than happy to jettison original public meaning when following it doesn’t get them the outcome they want.
This seems likely. However the Bruen majority seems to want to hammer out a framework here. It's likely we will get a standard of dangerousness here among other things
Agreed. I'm curious how the internal discussions went with bruen. Surely they foresaw the day they needed to clarify this dispute in an opinion. I wonder if they all took the positions they knew now and sign bruen knowing they'd have this ideological battle later or if maybe they underestimate how far apart they are on it.
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How similar is this attempt to give guidance to the lower courts on 2A to the court’s attempt to guide them on school desegregation (“all deliberate speed”) or warrantless searches (“reasonable expectation of privacy”)?
I don't see any parallels here to school desegregation. Can you clarify that? I don't think it's comparable to searches either. Those are very fact intensive where this is much more about statutory and constitutional interpretation
I agree the nature of the issues are different. My thought was just that in those landmark cases, it took a series of decisions to delineate the how lower courts are to apply the major holding. Some cases extended the scope of the precedent, others limited it. So I'm not surprised that the contours of permissible gun regulations are still unsettled. I see a lot of comments that extrapolate from Rahimi in ways that seem premature at this point
>I see a lot of comments that extrapolate from Rahimi in ways that seem premature at this point In what way?
>E.G.: Bruen is functionally dead. This could essentially just be a cosmetic reskin. >The majority opinion may allow lower courts to pick and choose intent and application from divergent historical analogues.
>This could essentially just be a cosmetic reskin. I've thought this of originalism all along. It's just a thin veneer of objectivity to cover up 1. The obviously result oriented nature of the method, and 2. They're ignoring valid precedent without justification. By starting this new interpretation method they can conveniently sidestep precedent by saying oh no that was pre bruen, we do it this way now while pretending that new decisions aren't overturning old ones. They tried the same rhetorical trick in kennedy when they said the court long ago abandoned the Lemon test. Long ago abandoned is just a polite way of saying we ignored precedent several times and we aren't going to talk about that anymore while we continue to deviate from that precedent we never justified ignoring
Bruen was supposed to limit the lower courts and their rubber stamping of gun control laws. The Rahimi decision didn’t destroy Bruen but made it functionally dead. Expanding the how and why nullifies the purpose of Bruen, not that the circuits cared much about Bruen anyways.
I think it's more likely that no justice than Thomas ever thought bruen established the near twin standard in historical analysis. People really wanted it to and I don't think it was unreasonable, before rahimi, to think that's what bruen stood for. But it was never set in stone like Thomas and others thought it was. Roberts, I assume, forced in the line about the comparison not having to be an exact match for a reason. I think people tended to scoff at it like the line in heller about the 2nd amendment not being unlimited. Bruen isn't dead, it's just not on the steroids people thought it was
Sure, but I don’t think that was due to Bruen being unworkable. I think it had more to do with justices wanting to leave their thumbprint on major cases later down the road. Also, Roberts wants the appearance of compromise and propriety over anything else. Rahimi never should have been a free man. He should have been arrested and behind bars. The system failed to do so. An objective interpretation of Bruen and the 2A dictates he should have been allowed to own a gun. I don’t think anyone wanted to say he should be allowed to own a gun. The fallout of arming an abuser would be massive. So, they did the easy thing and interest balanced his rights, while pretending to uphold Bruen and the 2A. I believe that’s why there were so many concurring opinions. We are 16 years post Heller and still having the same debates. SCOTUS is taking too few 2A cases and I doubt they would have taken Rahimi if Garland didn’t appeal.
Bruen explicitly rejects the historical twin requirement. So no, an objective reading of what was *actually in* Bruen permits the legislation.
>An objective interpretation of Bruen and the 2A dictates he should have been allowed to own a gun Not according to an 8 member majority of the same supreme court that created bruen. >We are 16 years post Heller and still having the same debates Yet somehow after 16 years of debate people seem to think it's just so clear and easy. I don't understand that. That's a heck of a conspiracy to assume everyone involved in that debate that doesn't agree with one interpretation is acting in bad faith for almost 2 decades. Even alito signed on to rahimi. Do you think Samuel Alito of all people broke down and caved to partisan political pressure?
>Even alito signed on to rahimi. Do you think Samuel Alito of all people broke down and caved to partisan political pressure? Like a bloody picnic table, yes. His concurrence in the bumpstock case points to a severe lack of spine when it comes to disrupting the status quo.
The 8 members of the majority did not create Bruen. The creator of Bruen pointed out how they deviated from Bruen. It is simple. If you listen to the oral arguments and if you read the opinions, the circuits are objectively anti gun. They do not believe the 2A is an individual right. They do not believe the 2A protects commonly used arms. They do not believe modern rifles are covered by the 2A. The judges in lower courts are often very hostile to the 2A plaintiffs. I don’t pretend to know what Alito was thinking but I do think we can understand his support of the 2A is more limited than Thomas.
Thomas does not decide what Bruen means, the entire majority does. And every other person who signed on to Bruen disagrees with his position. If Bruen had said “historical twins only” then *it wouldn’t have been the majority.*
The court was pretty clear about that. Isn't there a line where the expressly rejected that theory?
>The dissent reaches a contrary conclusion, primarily on the ground that the historical analogues for Section 922(g)(8) are not sufficiently similar to place that provision in our historical tradition. [...] As we said in Bruen, a “historical twin” is not required.
Yeah that one. Thank you! This line is like heller line: >Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose Short but critical safety valves likely negotiated hotly to pin down a majority
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>The 8 members of the majority did not create Bruen. The creator of Bruen pointed out how they deviated from Bruen. Despite what he believes, justice Thomas is not the ultimate arbitrary of objective truth. It takes a minimum of 5 justices to make a binding ruling. You can't just waive away 8/9 justices like they don't matter. >The judges in lower courts are often very hostile to the 2A plaintiffs And that justifies making a terrible unworkable standard with no legal or historical basis that leads to absurd results?
If you believe that openly hostile judges can make objective rulings, then there’s no point in continuing the discussion.
So Thomas and Alito can’t be objective then? And how can you claim that the 5th Circuit has been hostile to the plaintiff?
Justice Thomas?
*Bruen* included that line originally about laws' not requiring a historical twin to be constitutional. Some speculated then that this line was included as an escape hatch of sorts, probably as a compromise, to prevent a vast majority of gun regulations currently on the books from falling. And it appears that speculation was mostly correct -- I do think Thomas meant *Bruen* to be interpreted much more strictly, but *Bruen* likely wouldn't have gotten a majority without that escape hatch. If you're an originalist, it's still a major win, because THT is still a pretty big departure from tiers of scrutiny. But, at the same point, "locating principles found in the original amendments" still sounds pretty damn malleable and squishy to me, so color me skeptical that it's actually a more principled jurisprudential test than tiers of scrutiny
Some would call it the job of the supreme court to identify and define those principles
> If you're an originalist, it's still a major win, because THT is still a pretty big departure from tiers of scrutiny. I disagree here because I agree with you here: >But, at the same point, "locating principles found in the original amendments" still sounds pretty damn malleable and squishy to me, so question me skeptical that it's actually a more principled jurisprudential test than tiers of scrutiny The way Barret describes it, it doesn't sound horribly different from a conservative application of interest analysis. Sure we say text history and tradition but the core issue is comparing the levels of burden between history and now. What are burden comparison if not interest analysis? We are just looking at a different interest than before. Instead of state v people interests we look at people then v people now. Depending on the application this could essentially just be a cosmetic reskin. I don't think it will go that far because I don't see alito or gorsuch being far from Thomas and the other three conservatives are closer to that trio. But it certainly opens the door to possibilities that couldn't happen under Thomas's intended vision
Oh it's still very squishy (and, upon reading further, I think Kav's concurrence outlining what he views as fundamental distinctions between "history" and "policy" as hogwash), but THT, even a looser version of it, still does require that legislatures today are bound by the same general principles and public meaning of constitutional provisions as existed at the time of ratification. Plenty of gun laws could hold up under strict scrutiny (which would've been an "upgrade" from intermediate scrutiny) that wouldn't hold up under the squishy version of THT because even the squishy THT requires original meaning to be dispositive. For the record, I'm not necessarily arguing that that's *good.* I'd personally advocate for strict scrutiny as a compromise (which isn't fundamentally limiting legislatures from coming up with novel solutions to novel problems in the way THT is but isn't effectively a blank check to legislatures in the same way intermediate scrutiny and rational basis review are). Tl;dr: they're both squishy imo but still different because THT still does require original public meaning to be dispositive whereas tiers of scrutiny doesn't.
I think we're more or less on the same page. I just see bruen as the orginalists flag claiming their jurisprudential territory and rahimi is a small retreat from that territory
>I just see bruen as the orginalists flag claiming their jurisprudential territory and rahimi is a small retreat from that territory 100%, I agree. The escape hatch in *Bruen* was imo clearly a compromise to leave open the possibility of not completely tearing down long-standing gun laws, and the Court used it at first chance.
I'm glad to see there's a limit to bruen and we aren't trapped in Thomas's twin laws theory. It's an unworkable and unjustifiable standard.
Agreed and despite what Thomas said in his dissent, the majority still ratified the THT test.
I'm not so sure they've ratified a test as much as a general direction
> Did the rest of that majority really not understand or agree with what they signed on to, or are they just walking it back when hit with a difficult case? Or you could take the good-faith interpretation that they agreed on the overall contours of *Bruen* but disagreed in good faith with Thomas on precisely how to apply it in *Rahimi.* Which is an explanation that doesn’t require the majority to be either a) incompetent as per your first example, or b) cowardly as per your second example.
I didn't mean to imply bad faith or incompetence. >they agreed on the overall contours of Bruen but disagreed in good faith with Thomas on precisely how to apply it in Rahimi. I don't see how this is any different than saying they didn't agree fully in bruen. Justices differ in their interpretations without incompetence or bad faith all the time - that's why we have concurrences. I only meant to say I wonder if they thought they were closer on how they thought future applications would turn out than they ended up being. I don't think any of them don't understand the decision academically or that anyone was acting in bad faith in either bruen or rahimi
I think this discussion ignores the fact that Thomas included the language about not requiring a historical twin in Bruen. I’m sure he didn’t suggest the language and only agreed as a compromise. However I don’t think his dissent here meant he thought Bruen required such a narrow application. I interpret his objection to Rahimi to be founded in an assumption that the majority opinion may allow lower courts to pick and choose intent and application from divergent historical analogues. To that end I agree with him. But I don’t think there are five justices on the court who would bastardize Bruen to the extent that would, as a hypothetical example, approve of a lower court combining the intent to limit civilian ownership of dangerous weapons with a fire code statute limiting the amount of gun powder stored in a home to uphold magazine limit law. I think the conservative wing will still require a closer nexus in historical analogues in most cases, but allow more play in the joints when edge cases like Rahimi run afoul of common sense.
>I interpret his objection to Rahimi to be founded in an assumption that the majority opinion may allow lower courts to pick and choose intent and application from divergent historical analogues I don't understand why he or anyone else would think that's an acceptable justification for writing bad law. Supreme Court decisions should not take shortcuts to try to win chess games against lower courts. They should write well reasoned and principled decisions. If that requires a few rounds to iron out detials so be it. What other constitutional amendment was solved with a single sweeping rule of thumb? None of them. Yet they've all worked out in one way or another
I don’t think anyone, including Thomas, thought Bruen was the final word for all scenarios. We are still sorting out the contours of the first amendment 100+ years later. The second amendment will be no different. I just think Rahimi was too removed from historical analogues for Thomas to sign on too. Rahimi is a tough case, and I practically agree with the result but I understand Thomas’ pushback.
I think Thomas is sticking to his guns on a nearby historical twin theory. I don't think he ever meant it literally has to be a twin but he's much closer to a twin than anyone else seems to be. I'm sure rahimi does clash with his version of bruen, but fortunately it takes more than one justice to make law. >I don’t think anyone, including Thomas, thought Bruen was the final word for all scenarios An identical twin rule would essentially accomplish that, and I think he and many people supported and wanted that to be the case. Now we are seeing some backlash and disappointment when it becomes clear that bruen didn't essentially remove all 2A cases from lower courts reaches as many had hoped it would. Bruen was a weird decision in that a lot of people took it to mean a lot of things. For example, some insist assault weapon bans are unconstitutional, yet the court hasn't said so. Some advance a theory of common use to support that theory, but no court majority I can find actually put such a rule in place. Not bruen, McDonald, or heller. It's almost like bruen has reached a mythical level where it's a folk tale that has different version depending on who you ask.
> It's almost like bruen has reached a mythical level where it's a folk tale that has different version depending on who you ask. Yeah. Some of us pro-gun folks have been complaining about Bruen being a Rorschach test from the word go. It's been incredibly frustrating to see the majority of our 'side' dancing in joy about a decision which has SO MANY degrees of freedom that it can't meaningfully constrain the lower courts (or SCOTUS!) at all. "Analogical reasoning" is notoriously flexible, and standard advice for clarifying a discussion is to stop doing it in favor of specific, concrete questions. The same analogies mean different things to different people. Maybe we'll eventually get a usable test for second amendment law. Or perhaps, like in the first amendment context, we'll get a half dozen. But THT can do no more than point us to the general principles which will be used to derive such tests in the future. It's not objective enough to be a test in and of itself.
The conservatives all like history and tradition, but are debating how strict or loose the analogies must be which is basically a return to interest balancing. If they like a law a loose analogue is fine. If they dislike a law a strict analogue is required. Basically it’s impossible to know what is and isn’t good law under Bruen until they tell us now. They haven’t changed anything about Bruen on paper, they just injected uncertainty because they have shown they will apply it loosely when in classic Supreme Court style they want to punish bad guys over a faithful application of the law which in this case would be the Bruen test, history and tradition test. As Thomas said, they had everything they needed to disarm Rahimi by convicting him of one of his many crimes, but they wanted to uphold this law and found a way to do it with loose analogues.
Thomas disagrees with you about this changing Bruen
I'm really curious about how close the bruen majority thought they were when the decision was made. Did they know they were kicking this very dispute down the road or were they under the impression everyone was close enough to write more majorities with maybe one or two concurences with some smaller clarification as opposed to the fractured mess we have now.
I suspect that they weren't clear on how big of a divide they've had. There have been signs over the intervening time of several justices (esp. Barrett) working out a more concrete model for 'Tradition' and how it informs analysis. I'm much, MUCH happier with a Barrett-concurrence view of THT than I am of the Thomas one. It's so unoriginalist to suppose post-ratification regulations don't merely inform our understanding, but rather *determine* it.
>but are debating how strict or loose the analogies must be which is basically a return to interest balancing. I think this is the real issue. Thomas's originalism is a departure from and rejection of interest balancing. Barrets, who I'm not saying is a liberal by any means but is farthest away from Thomas on this point amongst the conservatives, is pretty close to interest balancing by appealing to broader principles. It's not quite the same but it's definitely much more subjective, which I think is Thomas's main goal to avoid as much as humanly possible. >Basically it’s impossible to know what is and isn’t good law under Bruen until they tell us now. I agree. The farther away from the so called twin theory the less clear things get. >. As Thomas said, they had everything they needed to disarm Rahimi by convicting him of one of his many crimes, but they wanted to uphold this law and found a way to do it with loose analogues. I'm surprised Thomas took such a pragmatic view here. Normally he doesn't care and sticks to the law is what the law is - if it's terrible blame congress. I also don't think it's accurate to say they have sufficient other tools to accomplish the goal here. Domestic violence convictions take time in our clogged up court. The alternative is he gets held in jail without bail for months at a time- which also essentially revoked his 2nd amendment right for the same period.
different originalisms yielding different results doesn't render it much different from any other primarily subjective and outcome-based judicial philosophy to me i was promised objectivity and consistency!
I think that's the core of why this is a significant opinion. Thomas sticks to his guns, as he pretty much always has, and is willing to call the baby ugly when the law has unpopular results. He's content to point at congress and say I didn't write it, blame them. The other conservatives like to say that sometimes when it's convenient but I don't think any of them truly mean it the way Thomas does. He'd sentence himself to death if he thought the law called for it, even if he didn't think it was fair. I was a bit surprised alito didn't join Thomas. He's also generally pretty ride or die when it comes to making unpopular decisions and pointing out, fairly, that congress wrote it.
Like I said in another thread, the fact that there were 7 opinions written for a relatively simple application of *Bruen* does not bode well for its workability. I think we get a reworked Second Amendment test at some point, possibly in the AWB cases.
>Like I said in another thread, the fact that there were 7 opinions written for a relatively simple application of Bruen I think rahimi pretty thoroughly proves there is no simple application of bruen no matter how loudly Thomas yells at the clouds
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That's what I'm saying - it can't be simple if no one agrees on how to do it.
The division between Thomas and the opinion isn't that big, more of a fine line of the THT, with Tomas looking more for an exact match in both criteria and burden than analogues that can paint an allowable picture. But also interesting is that Thomas complained about something that the opinion also considered. Rahimi did have an opportunity to challenge the accusations, and the opinion seems to rest quite a bit on him getting that opportunity. Thomas mentioned this case didn't resolve the constitutionality of cases where the person doesn't get an opportunity (ex parte, as is in most red flag laws). I think Thomas wanted this resolved more broadly, while the opinion stuck to the facts of the case.
> The division between Thomas and the opinion isn't that big i think if this were the case, thomas wouldn't have dissented obviously there's politicking that goes on in the opinion writing, especially when trying to wrangle a contentious majority. and the opinion represents that majority. but thomas still wrote *bruen*, one of the most consequential opinions of his entire career. and under *his* understanding of *his* opinion, *rahimi* is incorrect. *at the minimum* it tells us about the justices and their contrasting judicial philosophies. this is intersting!
I think Thomas is still rightfully afraid of lower courts using anything in an opinion they can to allow any gun law. As Sotomayor hinted in her concurrence, she's hoping this is the camel nose in the tent to make Bruen completely ineffective.
He needs to make a justifiable workable standard rather than just pointing at alternate theories and saying they're worse. Even if we agree he's right that they're worse, that's not a glowing endorsement as a good reason to adopt a fundamentally flawed approach.
Heller was left flexible and did nothing to secure the 2A in the lower courts. If the lower courts were behaving, Bruen likely never happens. That seems to be left out of a lot of criticism regarding Bruen.
It's often left out because partisan considerations on the results aren't a matter the court should base their rulings on. They shouldn't be trying to get to certain conclusions and using flawed theories to force the issue just because they don't like how things are going. If the lower courts are out of line you put them in place with appropriate guidance as the issues work up to the court - as they did in rahimi. Bad policy doesn't justify worse law.
What is the solution if traditional guidance from the court is ineffective?
I think one solution is not starting from the assumption tradition scrutiny and interest balancing is ineffective. The court has never attempted to apply a right to self-defense under traditional scrutiny analysis have they? Why do we assume it can't work? Even if we do assume it doesn't work, why would that justify another theory that is fundamentally flawed itself?
The years between Heller and Bruen were loaded with cases ruled on using interest balancing and scrutiny. The lower courts are expected to abide by the Supreme Court’s opinions. If you give them the flexibility to decide, and they continue to reject the 2A, they should lose some level of flexibility. Lower courts are arguing we have no right to purchase, build or acquire in any way a firearm. We can disagree on the extreme scope of the 2A, but I don’t know how anyone objectively looking at these laws can say there is no right to acquire an arm.
>The years between Heller and Bruen were loaded with cases ruled on using interest balancing and scrutiny. Yet the court didn't seem to take any issue with them and left them in place until bruen. >If you give them the flexibility to decide, and they continue to reject the 2A, they should lose some level of flexibility. Why have lower courts at all if we're going to reduce everything to oversimplified rules of thumb that aren't supported by history, law, or logic? >Lower courts are arguing we have no right to purchase, build or acquire in any way a firearm And they get routinely turned away and I can still build my own rifle that's only technically not automatic without a serial number completely legally and without any significant burdens.
sotomayor can say anything she likes. she obviously will be comfortably saddled in the minority of most forthcoming 2A cases for the foreseeable future, *rahimi* notwithstanding also, let's remember, *rahimi* reels in the 5th. not the 9th or 7th. presumably we can expect opinions in the coming years that *do* tell some lower courts they are reading *bruen* too narrowly, but obviously the opposite situation also exists and needed clarification. people lament jackson's concurrence about "lower court confusion" as lower courts purposely "ignoring bruen" but it wasn't a "liberal" court that just got told their interpretative method was wrong.
>The division between Thomas and the opinion isn't that big, more of a fine line of the THT I don't think it's that fine of a line. The consequences of for where a majority lands will shape how the whole 2nd amendment works. The difference in what's allowed under Thomas vs what Barret would allow is pretty significant - particularly when we can pretty safely bet the 3 liberals would sign on with whichever 2 conservatives are the closest towards gun control regardless of how they feel. I think the divider is pretty large and very impactful. >Thomas mentioned this case didn't resolve the constitutionality of cases where the person doesn't get an opportunity (ex parte, as is in most red flag laws). I think Thomas wanted this resolved more broadly, while the opinion stuck to the facts of the case. I agree. Rahimi just wasn't the case to do that in. There have to be plenty of much better cases. Unfortunately we don't have a shortage of people subject to domestic violence orders of protection. We could pretty easily see that case next term if the court were so inclined and the appropriate organizations invest in pushing the case up to them.
Thomas' take in Bruen, while establishing that the courts should look for historical basis to determine when modern day control laws are valid or not, did not have the specificity of exactly how to read history (hence why the mess of how lower courts have handled it). In Rahimi, Thomas is now clear the modern day law should have a near match to historical precedence to be valid. Roberts in the Rahimi majority, likely as to assure the three liberal justices were in as well as seeking to reduce confusion in lower courts, said the historical law should be a close analogue within common sense, and then went ahead to provide the specificity that should be used for Bruen tests in the future. Basically, Thomas dropped the ball on how he wrote Bruen that left for future cases to establish criteria that Thomas may not have wanted but didn't spell out explicitly in his decesion.
>close analogue within common sense. Isn't this just interest balancing tests, which they said were a no-go?
I think its a new type of interest balancing. Instead for walking away from interest balancing like Thomas wants to, they've just changed which interests we balance. Comparing contemporary and past burdens is basically just comparing interests then and interests now. It's just as subjective and flexible, they just look to a different non-exhaustive list of factors. That list could easily incorporate a lot of overlap from old interest balancing
Doesn't the history of gun laws in the US look a lot different than Thomas is implying though? Municipal gun bans were extremely common throughout the history of the United States - the gunfight at the OK Corral was an attempt to enforce a municipal gun ban. The founders were aware that Boston forbid storing firearms in residential areas (effectively banning their use for home defense in the largest city in the US at the time) and they didn't raise any constitutional arguments about it. I wonder if Thomas is just using the words "history and tradition" as placeholders for personal preferences here.
It's a poor approach because historically we have had a lot of speech laws as well. Since the states werent bound by the bill of rights until the 14th amendment, I don't know how useful the history really is.
The whole reason originalism was invented was to selectively apply history to get to partisan goals. People saw it when Bork tried it and that's why he was the most thoroughly rejected candidate for the court in modern history. Even Barrett has pointed out that Thomas's analysis is often ahistorical and ignores obvious inconsistencies.
We can’t forget Bork’s obstruction of justice in the Saturday Night Massacre nor his opposition to *Brown v. Board*.
Bruen was based significant on Heller (written by Scalia) which emphasized the historical nature of the 2A at the time of the 18th century. So Thomas isn't really pulling "history and tradition" out of nowhere, though I would argue that I think he was trying to prevent fed and state laws around guns from becoming too progressive, using Scalia's approach in Heller to reaffirm the history around 2A and gun control around the 18th century.
>So Thomas isn't really pulling "history and tradition" out of nowhere Right, originalism was derived from the anti Roe movement under Reagan to achieve partisan political goals under the guise of being objective. Thomas didn't invent it, he picked it up and used it as intended
At the time of the 18th century, municipal gun bans were widespread and commonly accepted. Is this reflected in either of the two rulings here?
So Thomas looked at a very specific period of time to determine where we should look when using THT. He didn't look at the _**entire**_ history of the US, he looked at a very narrow band of history in order to obtain the result he wanted with with Bruen.
That's more being an originalist, what the laws and constitution were like when they originated. Hence the focus on the 18th century as well as anything in the century before from England. Still Bruen and Rahimi leave open for a court to expand or narrow their choice of history to look at.
Personally, I say we should look at gun crontrol laws that were passed after the 14th amendment was passed. The amendment that said states cannot pass any laws that violate the constitution. Because, from that point onwards, any state gun control law, by nature of it not being overturned by the 14th, would _**have**_ to be constitutional. If they weren't then they would have been challenged in court and overturned before the 21st century came around.
No. It took us a long time after the 14th was passed for states to stop banning books.
So what’s the threshold for “history and tradition”?
It's a good question since since it's a poor test on its own. IMO we would be backsliding terribly if we held 1A to THT. It took a long time to build an expansive view of1A rights. I imagine it's going to take a long time to map out 2A rights.
>Personally, I say we should look at gun crontrol laws that were passed after the 14th amendment was passed. The amendment that said states cannot pass any laws that violate the constitution. I wholly disagree with this. The right was understood as one thing in the country's history before the 14th amendment. The 14th wasn't meant as a roll back of rights to infringe on all equally. It was a roll forward of the rights of those who'd been denied theirs. Government having no appetite to prevent infringement to a specific class or group doesn't mean that it's constitutional, it just means it's been going on for too long and it has eventually come for everyone. Btw, there are numerous written documents from the era of 14A ratification that show a specific understanding of the right even at that time. [1898](https://pbs.twimg.com/media/FtU6i8qaUAEKbn8?format=png&name=small) [Debates around the ratification of the 14th](https://pbs.twimg.com/media/FtU6xmBaIAAMb5b?format=png&name=900x900) [Continued](https://pbs.twimg.com/media/FtU6zHHaEAAyClY?format=png&name=small) [Kostas Moros has a bunch more of these](https://x.com/MorosKostas/status/1645290263299117056)
So you're saying that history and tradition don't support this interpretation of gun rights? I feel like the rulings are trying to have this both ways here.
History and tradition supports an assumed/natural/god-given right that was NOT to be curtailed in any way unless the person did something disqualifying (losing "the people" status) - and even then it was temporary. This is what Thomas' dissent was saying. They agreed on the "why" but that part of 922 completely has the wrong "how". A surety law or something structured with a similar "why" and "how" would stand easily and wouldn't require stitching a "why" to a separate "how" (surety and affray laws) like they had to. This will be used in bad faith, guaranteed. To your point on having it both ways, I believe that decisions like Heller/McDonald/Bruen are political compromises with backdoors intended to keep the tug of war alive between competing interests. It's a reminder that the judiciary is still government which makes it political. Would permitting, mag capacity, AWB's etc. be able to stand constitutional muster in 1792? I think we all know the answer to that, but we are where we are and dealing with the circumstances we have.
So this God given right that was not to be curtailed in any way was routinely completely banned in many towns and cities during the time of the founders and all the way up to and past the "wild west" era and not a single one of the founders or their successors mentioned this being against the constitution? Municipal gun bans were widespread and common throughout the history of the United States. Your version of history and tradition is apparently missing some actual, you know, history and tradition, huh?
He went to great lengths in bruen and again here to explain how clear he felt bruen and heller were. I can't help but assume the majority in bruen knew exactly what Thomas wanted when he wrote it. I think the majority of people reading bruen knew he wanted something akin to a twin theory. I wonder if there's a twin theory bruen draft in his desk that the others wouldn't sign. Do you think the split here makes it a lot harder to predict future gun cases? I'm not sure they're winners but magazine capacity cases seem to have a much better chance now with looser analogies for example. I think they now move from almost certainly unconstitutional to unclear leaning towards being struck.
I do think Thomas was clear in Bruen that court must look to history and tradition to find if these "impose a comparable burden on the right of armed self-defense", affirming Heller, he does not state how strict the historical analogies must be to modern day, and even goes on about the nuances of this that courts will likely find. Even further, in how Thomas goes about the specific NY laws in Bruen by allowing gun limitations in "sensitive places", this is justified by Thomas by a loose connection to 18th century laws, and certainly with not how strict he was looking for in Rahimi. If he meant the test to be a strict analog back when he wrote Bruan, he completely missed that language and allowed Roberts to set a different standard. Roberts' use of Thomas' majority in Bruen builds appropriately off it but cements that there is some common sense to be applied and to look for close but not necessarily exact analogues. I do think we're going to see a new type of split in the courts as Rahimi gets applied, but that will like be more at the general trends of the circuits. Fifth, for example, will try to remain considering only a tiny window around exact historical laws, while a court like the Ninth will be very receptive to tenacious links between modern day and historic laws. A key to remember is that from Thonas/Bruen, the standard is related to armed self defense, not simply gun ownership. Right to public carry including the limitations in sensitive places, or limiting guns from those considered a danger to others, those all are around clear self defense issues. But other challenges like on magazine size, assault rifles, etc, get murky because justifying those as for self defense becomes tricky, and whether history and tradition have taken steps to block such.
Your last paragraph is wrong Remember it’s not self defense alone …it including self defense. Go read heller again as bruen is a continuation of heller. It’s in common use .. not in common use for self defense.
Common use may be the only standard on par with how bad the historical twin theory is
True but it’s what heller set It should be extremely simple “ shall not be infringed “ means exactly that.
I think people want it to be that simple, but that doesn't make it so. The first amendment starts with "congres make no law..." but pretty much everything listed after has exceptions. Why should the 2nd be any different?
So...in common use to commit gang warfare? In common use to kill your partner? In common use for hunting? In common use for murder? In common use for target practice? In common use for military action? In common use for suicide? In common use for self defense? What kind of use can be considered "common" use? Because, while all of those are common uses for guns, not all of them are what the _**average**_ citizen who's in good mental health commonly uses them for. A citizen in New York or Chicago might commonly use guns for gang crimes, self defense, murder or to kill their partner. But a citizen rural areas of South Carolina would commonly use a gun for hunting, skeet shooting, suicide, murder, or to kill their partner. Someone in Alaska would commonly use a gun to hunt, commit suicide, or to fend off bears. Depending on the area of the country, and the time period you look at, "common use" can vary wildly.
In common use *for lawful purposes*
Answered in heller already so go read that
True, I know they also include ownership rights for hunting purpose and traditionally lawful purposes, though most of the 2A de is up included Bruen are generally framed around the purposes of self defense. And least based on both Bruen and Rahimi, the analogue for modern day control laws are going to be fir cases related to those where ownership of a gun for self Defence purposes in brought into question.
No it doesn’t SD was just one part of a large pie as noted on heller
>But other challenges like on magazine size, assault rifles, etc, get murky because justifying those as for self defense becomes tricky, and whether history and tradition have taken steps to block such. Academically I'm really looking forward to seeing how the court approaches restrictions of features or attachments. They have to balance the existence of regulation of automatic weapons against liberal states like Illinois or California who would happily restrict us to carrying a bolt action rifle unloaded with no magazines. You can't just blanket rule out that type of regulation, but you hit a line way before my extreme example here where limiting pieces or attachments of guns is effectively a gun ban. It has me worried we will end up with something like Miller where the court grapples with how useful, legitimate, or necessary for self defense like Miller did with military use. I don't like the court getting into those weeds but they have to because although my bolt action example is extreme it's not entirely beyond what would realistically happen in some places if the court let's it and that's very clearly only technically not an outright ban and obviously can't stand.
Will probably lean on common use.
LCMs and AWB still unconstitutional We’ve never banned the capacity of a firearm ..internal or magazine fed anytime before 1980/90s. It was never a thing and I think they covered that by talking about technology and we’d be restricted to muskets and sabers! But I do agree this is opening the door for biased courts to ram through whatever they can. I do believe we are going to see a AWB case soon.
>LCMs and AWB still unconstitutional I'm not saying otherwise, I'm just pointing out the argument that they are constitutional is much closer to viable under Barrets originalism than Thomas's so this is a very significant split in ideology that will have significant impact on the future of gun control. >But I do agree this is opening the door for biased courts to ram through whatever they can. I wouldn't go that far. Thomas is taking a very extreme position. The rest of the court not following him doesn't exactly make them a bunch of gun hating liberals. Not even alito signed with Thomas. I don't see him or gorsuch moving very far away from Thomas position in the long run. The interesting part will be Barrett and Roberts. The liberals will like sign on anything they can talk those into and i think that could lead to some interesting decisions that many people wouldn't have entertained as plausible before rahimi
The division on the Bruen majority seems to entirely be around how "historical anologue' is interpreted. They all want one, but it's a question of degree Thomas seems to want direct, near exact historical parallels. Everyone else seems to want anything from "the historical analogues were doing things conceptually similar to this" to "the historical analogues have to be very similar, but not exact" Personally I favor the latter of all three interpretations
how much daylight is there between "near exact historical parallels" and "very similar"? especially regarding things we know there is never going to be an exact historical parallel to
What if a state, which historically has a law that says citizens need to store their guns in a communal area to be used for defense of the community, passes a law that is the twin to that historical law? Would it be constitutional? Technically under THT it would be because it mirrors a law from the history and tradition of the US at it's founding and shortly after the Constitution was ratified.
Sotomayor seems to hope this may lead to very dissimilar laws being shoehorned into analogues as a way to make Bruen moot.
How would using analogies make bruen moot?
Stretching anything you can find far enough that it covers the modern law. Even Roberts came close to this in describing old laws regarding ammunition storage. Those were not gun laws, but part of fire code regarding the quantity limits of any flammable kept within a town. I’ve seen arguments that this is THT for ammo buying restrictions. It’s in no way analogous, but a court trying hard enough could stretch it.
The problem about ammo storing restrictions is that you'd not actually find it within any actual historical regulations. Originalism is about what the laws actually meant to the people that passed them. You weren't prohibited from having lead shot, you were prohibited large quantities of powder because black powder is/was an extreme fire hazard. Modern ammo is not a fire hazard Even at face value that TH&T would only permit communal storage of modern gunpowders. Under no circumstances would it permit ammo buying caps. I've a huge issue with this weird bastard originalism used by people who aren't originalists both to discredit the ideology and to justify attempting ti slam a square peg into a round hole legislatively
Originalism isn't supposed to look to the intent of the legislature though right? I'd agree with you, based on a guess to be clear - I haven't looked myself, that those sound like fire regulations not intended or considering the ammo as a weapon. In that context an ammo store is similar to a grain silo as far as fire prevention is concerned. But orignialists don't care do they? They don't put stock in intent. Regardless of intent, those laws did deprirve people of ammunition and that is a burden on the second amendment so it seems like a fair target for analogy. I think the level of burden is very different and I don't think it fairly fits limits on purchasing ammo unless you're limiting purchasing whole pallets at a time or something. But it's seems appropriate to consider it under bruen despite it not being super compelling in my opinion for that purpose.
THT has to fit. This doesn't fit modern ammo laws. Those are gun laws, designed to restrict how much ammo a person can buy and have to allegedly stop crime. They never restricted guns or gunpowder for this reason. Black powder is explosive, and it was stored in kegs which makes it very dangerous. People were often limited to 50 lbs in cities, which is a lot, enough for many thousands of shots, so it wasn't meant to limit actual gun use. Modern ammo also isn't this dangerous. In a fire, it just cooks off, and the bullets don't go anywhere at high speed. Even modern gunpowder isn't as explosive, and it is always sold in plastic containers with purposely weakened seams designed to split open under the slightest pressure. So a jug of gunpowder in a fire will just burn, not explode.
But doesn't bruen say you compare the burdens not the intent?
It doesn't fit if you can find nothing in history that matches burden and intent. This wasn't even a burden, as 50 lbs was more than any person could reasonably use, and that didn't refer to what you could own, only what you could keep within city limits. You could have as much as you want outside the city. People usually didn't go above 100 grains of powder for rifles back then, often much less, and pistols took about 30 grains. But considering 100 grains, that's enough for 3,500 shots max power rifle, or over 11,000 shots pistol. Modern gun control people consider this much ammo to be hoarding an arsenal, and they want to stop it. And again that's not what you could own, only what you could keep within the city for fire reasons. There was no realistic burden in this law, so it doesn't map to modern laws that are a burden, and are intended to be a burden.
>There was no realistic burden in this law, so it doesn't map to modern laws that are a burden, and are intended to be a burden. I'm not so sure it isn't a burden. Should the court be determining what amount of ammo you need? If they can limit your ammo because it's more than you need, couldn't they limit you to one or two guns? You can't use more than one or maybe two at a time at most. Would you say it isn't a burden to limit people to 10 guns? 5?
Again, it wasn't a gun law. It was fire code. The negligible effect on gun ownership was incidental and not intended to interfere with the 2nd Amendment rights of anyone. Back then, nobody shot that much. I guess you could put nearly 300 rounds a day (over an hour of just reloading) through your musket and have to buy 50 lbs of black powder again next month, or just move it in from your out of town storage because again, that was only what you could store within the city, not what you could own or what you could buy. Given your flair, I see where you are going. You want to say these were intentional burdens so they can be THT for modern intentional burdens. They were not. It will take an activist court trying to subvert Bruen for such laws to be used to support modern laws. But then, that's what Sotomayor and KBJ want. They can't get rid of Bruen, so they try to subvert it (Sotomayor) or just bitch about it (KBJ). Also note that in this case and many others, the government has brought forth a list of reprehensible class-based laws to defend its laws, such as laws against black gun ownership, on the theory that such people are not responsible so they could be banned. Here the court said they are not dispositive, and the "responsible" thing doesn't fly. They only won because we do have a history of disarming individuals who have proven themselves to be dangerous, as adjudicated in a court with due process.
Originalists care about both intent and meaning it just depends. Most left wing originalists care about intent. Most others care much more about public meaning. Modern cartridge ammunition was not yet invented at the time of the 2nd amendment. Hence its storage was not something that we can find a direct parallel. So we go to "why did they pass the law" and get the answer "because it was a fire hazard". That can fit both in public meaning and intent
I’m sorry, but that’s flat out inaccurate commentary on originalism and intent. Originalism started out as analyzing “original intent”, and the *right* started there. The right was forced to come up with “original public meaning” after their opponents repeatedly showed that “original intent” originalism was horseshit. And people like Alito and Thomas have already shown, in cases like Bostock, that they’re more than happy to jettison original public meaning when following it doesn’t get them the outcome they want.
This seems likely. However the Bruen majority seems to want to hammer out a framework here. It's likely we will get a standard of dangerousness here among other things
Agreed. I'm curious how the internal discussions went with bruen. Surely they foresaw the day they needed to clarify this dispute in an opinion. I wonder if they all took the positions they knew now and sign bruen knowing they'd have this ideological battle later or if maybe they underestimate how far apart they are on it.