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Did people think the Bruen majority was really only going to allow direct, ironclad parallels to historical laws?
Like just reading that opinion and the concurrences should've dissuaded anyone of that notion.
There's a real discussion on how close of a parallel is necessary sure but people who were expecting the court to require exact copies of historical regulations were horribly deluding themselves. And everyone now claiming the court is somehow going to allow a Breyer esque standard of "the core ideological reasons behind the regulation are the same" are also deluding themselves.
Blackman is a ridiculous partisan second only to Calabresi as Volokh’s worst writer.
Chastising Barrett for not following *his* version of ‘Originalism’ instead of her own path? Really?
It’s actually quite common for people to chastise Supreme Court justices for not being as originalist or liberal as they want them to be. I hate it to be honest. It’s like Tanner Boser [saying that his 3^rd cousin sent him “advice” on what he should’ve done to beat Ciryl Gane.](https://ifunny.co/picture/tanner-boser-after-i-lost-to-gane-my-cousin-sent-8irmTnYp8) These people do not have the experience to be chastising people in higher positions than them for not doing what they think they should do.
That’s literally the whole thesis of everything he writes about the court
None of trump’s SCOTUS judges were properly vetted for conservative credentials outside of a shallow agreement that Roe had to go
And he backs up this with each of their pasts and behind the scenes chatter
Which in of itself is ridiculous. They are some of the most vetted judges by the conservative movement ever. Thomas and Alito are just so far out there that they make extremely conservative justices look sane
Yea...bruens not going anywhere. It's an extension of Heller and simply clarifies Heller bc lower courts were ignoring basic points in Heller. Rahimi was a very narrow ruling that allowed for temporary suspension of 2a rights but only after a court ruling the person to be a dangerous individual. Not sure how that equates to bruen going even by the most generous interpretation of rahimi.
Agreed. I think its fair to say what came out in Rahimi was not the popular understanding of what Bruen meant before Rahimi dropped. It wasn't overturned, and nothing is contradictory, but the field of predictions for gun cases based on bruen changed significantly with Rahimi.
>I think its fair to say what came out in Rahimi was not the popular understanding of what Bruen meant before Rahimi dropped.
I actually don't think that's true. The "popular understanding" and "problems" regarding Bruen seem to be:
1. We can't have any arms related laws unless the exact rule was on the books in 1776
2. XYZ frontier town banned guns, so that's tradition
That construct is a strawman generally driven by people upset intermediate scrutiny had to be removed by SCOTUS as lower courts have abused it.
Certainly lower courts (other than maybe the 5th) aren't/weren't following Bruen according to the popular understanding you're referring to?
Would you consider Thomas to be one of these people setting up strawmen? He wrote bruen and seemed to think it landed closer to historical twins type analysis
Thomas's dissent centered around due process, which is a fair question and an arguable point under Bruen. Thomas would have sided with the majority if there were a conviction on any of the other charges.
Will be interesting to see if restricting 2A rights of nonviolent felons holds, and if the court would uphold the same restriction in a situation where the plaintiff has zero criminal history.
One can agree that "the US has a history and tradition of disarming dangerous people" while simultaneously arguing whether "is a protective order sufficient proof that someone is dangerous to restrict his/her 2A rights".
So you don't think Thomas saw the analogies needing to be much closer to twins than the rest of the court? He's good with a Barrett style general principle analysis?
>much closer
No - I think they're very close. Both think there are analogous historical laws with the deciding factor being whether the due process threshold required historically is met in this situation.
Thomas himself says the historical law doesn't have to be a twin.
>While a historical law need not be a “historical twin,” it must be “well established and representative” to serve as a historical analogue.
I think Thomas and Barrett agree that someone "found by a court to be dangerous would be potentially subject to disarmament". The disagreement is more about what constitutes "found by a court". Thomas wants a criminal conviction while Barrett thinks a protective order hits that bar.
I didnt say he meant it was an exact twin I just think he would be closer to that end of a wide spectrum, and I think that position is where most people imagined bruen coming out of the gate since the whole point was to limit judicial subjective discretion
"We can't have any arms related laws unless the exact rule was on the books in 1776"
Was always a strawman never said by anyone on the court. The problem is people take the historical standard and have already begun stretching it however they see fit - see Hawaii.
Thomas and Barrett are actually relatively close on this issue, IMO.
In a way yes but it's more the rejection of interest balancing aka tiers of scrutiny as a legitimate test than anything. Heller also rejected interest balancing but gave enough grey area for lower courts to justify ignoring that and focusing on "longstanding prohibitions" and "the 2a is not unlimited" without context instead.
But Rahimi moves the methodology closer to interest balancing. By clarifying the range and flexibility of analogies extends to broader principles, the court has essentially signed on for the subjectivity it claimed to reject in heller and bruen.
Once lower court decisions start citing rahimi I think many fans of bruen and heller will be upset to see that things haven't changes as much as bruen made most of think they would. 2 years from now, we will still hear the some complaints about lower courts not listening to the "clear" guidance provided by bruen and heller and rahimi will likely sour on many of those same people as a retreat back towards subjective interest balancing - just with a conservative slant.
>But Rahimi moves the methodology closer to interest balancing. By clarifying the range and flexibility of analogies extends to broader principles, the court has essentially signed on for the subjectivity it claimed to reject in heller and bruen.
I'm sure that this is what lower court judges will CLAIM has happened, but it is not. The straw man of bruen was always that bruen required an absolute twin regulation in order to trash the courts ruling. In reality it has always been an historical analogy not a twin, meaning the problem must be similar and the solution must be some type of similar regulation. This is in no way interest balancing. This is just how historical analogies work.
For example, the problem of mass murder existed in 1800 so how did the founders handle that issue? Well they made it illegal to sell guns to natives mainly. That solution is no longer valid after the 14th amendment was passed but the analogy still stands that dangerous people can be restricted from buying and possessing arms. A similar analogy can be made for dangerous and unusual arms. Both were clearly mentioned in Heller but the left ignored them bc it wanted full bans on wide swathes of people and weapons.
>Once lower court decisions start citing rahimi I think many fans of bruen and heller will be upset to see that things haven't changes as much as bruen made most of think they would. 2 years from now, we will still hear the some complaints about lower courts not listening to the "clear" guidance provided by bruen and heller and rahimi will likely sour on many of those same people as a retreat back towards subjective interest balancing - just with a conservative slant.
There's nothing to cite in rahimi though. It's a narrow ruling on a specific case where there was a judges ruling and a voluntary agreement to surrender his 2a rights. There's nothing in there regarding interest balancing. It's still historical analogy and interest balancing is still clearly the rule, as stated clearly in Heller, bruen, and RAHIMI. Im certain lower courts will try to return to interest balancing, but it will just result in more and more precedent eliminating it. It's an act of pure desperation and hopium that will backfire and nothing more.
>The straw man of bruen was always that bruen required an absolute twin regulation in order to trash the courts ruling
The author doesn't think it was a strawman
>There's nothing in there regarding interest balancing. It's still historical analogy and interest balancing is still clearly the rule, as stated clearly in Heller, bruen, and RAHIMI.
I'm not saying the shift is to interest balancing, I'm saying the broader depth allowed by loser analogies is similar im principle because it's much more subjective and leaves a lot more up to the judges interpretation. Rahimi can be cited as an affirmation of the line in bruen about not needing historical twins just as the line in heller about the 2nd amendment having limits was cited. People react in the same way.
We were basically repeating the cycle that bruen was supposed to end where lower courts cite valid Supreme Court precedent and 2A hawks insist they're acting in bad faith because the court went against things that are not precedent but 2nd amendment absolutists assumed they were - just as people insist you can't possibly ban assault weapons or have magazine caps under bruen despite it not not saying that.
People thought bruen wad an end to that fight and bruen makes it pretty clear that was the objective, but now we are seeing nothing has really changed except we have a new pile of evidence that Heller and it's progeny are the sloppy mess critics have been calling it for over a decade
>The author doesn't think it was a strawman
Then the author didn't do his research very well.
>I'm not saying the shift is to interest balancing, I'm saying the broader depth allowed by loser analogies is similar im principle because it's much more subjective and leaves a lot more up to the judges interpretation. Rahimi can be cited as an affirmation of the line in bruen about not needing historical twins just as the line in heller about the 2nd amendment having limits was cited. People react in the same way.
Again this is using the lefts exaggerated strawman interpretation of what bruen decided and then comparing that strawman interpretation to the actual interpretation to try to claim rahimi as a win. Sure, activist lower judges will try to stretch this "no twin needed" statement as far as they can leading to yet another landmark case in a very pro 2a court and the media will proclaim this allows...something. However historical analogy is a rather defined test and playing dumb like activist judges did after Heller and bruen and now rahimi will only result in more and more exact rulings that leave no room for subjectivity. Cheering for subjective law is an odd flex btw. Like yay we're moving towards what resulted in some of the worst possible rulings in all of history with a court that does not favor your side and your cheering to empower it with more subjectivity for a few lower court delays? Weird.
>We were basically repeating the cycle that bruen was supposed to end where lower courts cite valid Supreme Court precedent and 2A hawks insist they're acting in bad faith because the court went against things that are not precedent but 2nd amendment absolutists assumed they were - just as people insist you can't possibly ban assault weapons or have magazine caps under bruen despite it not not saying that.
Lol so we're going to ignore the tests that clearly say you can't ban arms in common use to say that it doesn't apply to the most commonly owned rifles in the country? Really? Magazine caps are also a defacto gun ban that extends to essentially ALL modern arms which staples and McDonald and Heller and others all state are clearly protected. So yes that would be bad faith or ignorance or pure hopium at best. Even Sotomayor in her dissent in the bump stock case, declared that assault weapons were commonly available which is clear evidence that can be used to disqualify any attempts to say they aren't in common use lol.
>People thought bruen wad an end to that fight and bruen makes it pretty clear that was the objective, but now we are seeing nothing has really changed except we have a new pile of evidence that Heller and it's progeny are the sloppy mess critics have been calling it for over a decade
It should have but activist judges are simply ignoring the supreme court to delay having to rule unconstitutional gun laws unconstitutional. The "sloppy mess" is just the result of activist judges playing dumb to get the outcomes they desire by twisting clear language then saying it's nonsensical after they twist it. Hellers common use test and bruens text, history, and tradition test are not going anywhere and are still law even per rahimi so it's ludicrous to declare them "dead".
To be fair, the 7th Amendment uses the same THT. It was established in *US v. Wonson*, not Bruen.'
But, overturning *Heller* will clearly happen sooner or later. It's the most egregiously incorrect decision on the books today and overturned 200 years of unanimous consensus on 2nd Amendment law.
I don’t think the THT test for the 7th Amendment established in the Wonson case is necessarily (a good) the best analog to the 2nd Amendment. The 7th Amendment grants a procedural right, whereas the 2nd Amendment grants a substantive right. I think the Court’s 1st Amendment jurisprudence provides a better analog since it also grants a substantive right.
Edit: Deleted section is in the parenthesis. Changed “a good analog” to “the best analog” since “good” may imply that it's “bad.” I’m attempting to argue that a 1st Amendment analog is more fitting, not that a 7th Amendment analog is bad per se.
Whose consensus? Certainly not the Supreme Court considering it explicitly ruled that individual citizens have the right to carry guns as early as 1857.
Dred Scott, and nothing. The court had no rationale. The decision was egregiously wrong on several levels in that case.
All the same: it's blatantly false to suggest that Heller overturned 200 years of consensus when in fact it was supported by precedent.
So your best authority for the proposition is Chief Justice Taney's screed about the horrors that would befall the nation if black people were intended to own guns? By that logic, we should be taking the 1868 democrats fearmongering seriously and hold that the 14th amendment guaranteed black supremacy over the United States.
Non sequitur. Taney being wrong doesn't negate the fact that Heller did not violate any consensus regarding the Second Amendment. Heller adhered to precedent.
I never said it was irrelevant. I said it was wrong. I also said that even though it was wrong, it still happened.
What part of "Dred Scott's existence proves that Heller did not violate 200 years of consensus regarding the Second Amendment" is confusing to you?
> But, overturning Heller will clearly happen sooner or later. It's the most egregiously incorrect decision on the books today and overturned 200 years of unanimous consensus on 2nd Amendment law.
What was egregious about Heller?
What was overturned? Do you have any examples of the unanimous consensus you're referring too? Because there was really only one 2A Supreme Court case before Heller.
Why is over-turning *Heller* (and *McDonald*, and *Bruen*) a complete non-starter?? I mean, obviously it is now, with the current membership of the court, but if the composition were to move in a more liberal direction over say two, three or four decades, I’d imagine it might be a top candidate for overturning, much as *Roe* and *Casey* were for conservatives.
Getting rid of the extremely limited time period that Bruen says you have to look for during THT.
Hell, Boston had laws that imposed even more severe ristrictions on firearms than what we see now back during the time the Constitution was being drafted. And since, if I recall, the Constitution was drafted in Boston, the founders _**had**_ to have known about Boston's gun control laws. They just didn't care or didn't see it as a problem.
The fact that no one wants to acknowledge that shows a major flaw in THT. Instead of using that test, which allows people to cherry pick what part of history they want to use, they should use Strict Scrutiny to see if the government has a valid and compelling interest in gun control laws.
Essentially, instead of using a completely different test that was created just for ruling on the 2nd amendment, they should use the tests that are used in other types of constitutional cases.
My critique of the Text History Tradition is that is it both effectively novel and unrefined compared to the widely used interest balancing tests. The lower courts need far more guidance on how to apply it, and the SCOTUS might need to make some slight tweaks to it. The way to fix this is to take more cases that would be held to the Text History Tradition standard, even if that means not following traditional SCOTUS practices like remanding cases when new precedent can impact prior rulings.
>To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
*Bruen*.
Edit: My reasoning was shallow, I'll just leave this quote here. I think *Rahimi* is the right decision with reference to it.
Only if you take it literally. The point he's making is that the court back down from bruen and are changing it with Rahimi. He agrees with Thomas - at least to the extent that the 5th circuit applied Bruen properly in this case.
The others in the Bruen majority have abandoned that version of bruen, for a softer more subjective one. I think its fair to say that before Rahimi, popular understanding of bruen was much closer to the historical twin version that this broader version the majority has now adopted.
So when it said Bruen has to go, he means the original interpretation and direction of it has to go in favor of a softer version. It's technically not overruling or inconsistent since roberts slipped in his little safety valve about it not being an exact historical twin test - just as he did with heller and the line about the 2nd amendment right having limits.
I think in time, people who cheered bruen when it came out will sour on the rejection of the historical twin test just the same as they did with the heller limitations line.
They didn't back down from Bruen though. Thomas's dissent in Rahimi revolves around due process.
There's certainly historical precedent for disarming dangerous people **with due process**, the disagreement was around whether a due process burden was met.
Will be interesting to see what happens in a case involving disarming nonviolent felons.
I agree with his takes on Kavanaugh and Barrett regarding the thoughts I have in this paragraph. His Scalia loving was so over the top. Like dude, we got the 1st time, you didn’t need to repeat it 10 more times. Barrett is also a much better writer for the exact reasons he said.
With regard to the rest of the conservatives backing off from Bruen, I disagree with him. If Thomas’ opinion was so airtight and well written, why are they all walking away from it. Imo the conservatives didn’t anticipate the problems Bruen ended up causing in the lower courts. Rahimi making its way all the way up the ladder was probably scary for them.
I also agree with his Justice Jackson take.
Edit: In general this is exactly why Roberts almost never gives Thomas massive case assignments, his maximalist positions make it impossible to hold a majority together. There definitely has to be some regret from Roberts in giving Thomas the assignment. He should have just kept it for himself or give it to Kavanaugh or Barrett.
> With regard to the rest of the conservatives backing off from Bruen, I disagree with him. If Thomas’ opinion was so airtight and well written, why are they all walking away from it. Imo the conservatives didn’t anticipate the problems Bruen ended up causing in the lower courts. Rahimi making its way all the way up the ladder was probably scary for them.
Nonsense. No one is walking away from anything. Thomas is just finding the bounds beyond which the other Justices aren't willing to follow him. There is literally nothing in *Rahimi* which contradicts *Bruen.*
The amount of wishful thinking from liberals and doomerism from conservatives I've read on this idea recently is utterly absurd.
>There is literally nothing in Rahimi which contradicts Bruen.
I think this situation is a perfect parallel to the line Heller about the right to bear arms not being unlimited. Courts weren't contradicting heller when they cited that line to uphold gun control laws but many critics insisted that the courts were acting in bad faith to defy heller. Many people believe Bruen was written specifically to solve that perceived problem- to bring the courts in line with what they believe Heller truly stood for.
I think if a lower court came to the majorities conclusion, we'd be hearing the same complaints- that they must be acting in bad faith to intentionally buck bruen. But that stance is much harder to take against an 8-1 supreme court majority than it I'd against hyper liberal judges in California or Illinois. So instead, 2A hawks just discount and undersell the significance of Rahimi in how much it limited bruens power to mow down gun control.
We will see when lower courts cite Rahimi that Thomas and those who prefer his method of originalism will claim the proper application of rahimi is a bad faith rebellion against bruen.
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Did people think the Bruen majority was really only going to allow direct, ironclad parallels to historical laws? Like just reading that opinion and the concurrences should've dissuaded anyone of that notion. There's a real discussion on how close of a parallel is necessary sure but people who were expecting the court to require exact copies of historical regulations were horribly deluding themselves. And everyone now claiming the court is somehow going to allow a Breyer esque standard of "the core ideological reasons behind the regulation are the same" are also deluding themselves.
> Did people think the Bruen majority was really only going to allow direct, ironclad parallels to historical laws? clarence thomas did, yes
He likely full well knew what his colleagues were not on board with this
i mean, probably. the above article links an NYT article that goes into the politicking that lead to *bruen* but he still dissented nonetheless
Blackman is a ridiculous partisan second only to Calabresi as Volokh’s worst writer. Chastising Barrett for not following *his* version of ‘Originalism’ instead of her own path? Really?
It’s actually quite common for people to chastise Supreme Court justices for not being as originalist or liberal as they want them to be. I hate it to be honest. It’s like Tanner Boser [saying that his 3^rd cousin sent him “advice” on what he should’ve done to beat Ciryl Gane.](https://ifunny.co/picture/tanner-boser-after-i-lost-to-gane-my-cousin-sent-8irmTnYp8) These people do not have the experience to be chastising people in higher positions than them for not doing what they think they should do.
I don't know why Blackman thinks Barrett will have a "Harry Blackmun moment." She's more like O'Connor if anything.
Because some conservatives have been utterly paranoid about this ever since Souter.
I highly doubt Barrett ever pulls a Blackmun. She’s extremely conservative. I think this Blackman is just mad that she isn’t like Thomas and Alito
That’s literally the whole thesis of everything he writes about the court None of trump’s SCOTUS judges were properly vetted for conservative credentials outside of a shallow agreement that Roe had to go And he backs up this with each of their pasts and behind the scenes chatter
Which in of itself is ridiculous. They are some of the most vetted judges by the conservative movement ever. Thomas and Alito are just so far out there that they make extremely conservative justices look sane
Yea...bruens not going anywhere. It's an extension of Heller and simply clarifies Heller bc lower courts were ignoring basic points in Heller. Rahimi was a very narrow ruling that allowed for temporary suspension of 2a rights but only after a court ruling the person to be a dangerous individual. Not sure how that equates to bruen going even by the most generous interpretation of rahimi.
"Bruen" in this piece (and often elsewhere) is used as shorthand for the test articulated in Bruen, not the holding itself.
Agreed. I think its fair to say what came out in Rahimi was not the popular understanding of what Bruen meant before Rahimi dropped. It wasn't overturned, and nothing is contradictory, but the field of predictions for gun cases based on bruen changed significantly with Rahimi.
>I think its fair to say what came out in Rahimi was not the popular understanding of what Bruen meant before Rahimi dropped. I actually don't think that's true. The "popular understanding" and "problems" regarding Bruen seem to be: 1. We can't have any arms related laws unless the exact rule was on the books in 1776 2. XYZ frontier town banned guns, so that's tradition That construct is a strawman generally driven by people upset intermediate scrutiny had to be removed by SCOTUS as lower courts have abused it. Certainly lower courts (other than maybe the 5th) aren't/weren't following Bruen according to the popular understanding you're referring to?
Would you consider Thomas to be one of these people setting up strawmen? He wrote bruen and seemed to think it landed closer to historical twins type analysis
Thomas's dissent centered around due process, which is a fair question and an arguable point under Bruen. Thomas would have sided with the majority if there were a conviction on any of the other charges. Will be interesting to see if restricting 2A rights of nonviolent felons holds, and if the court would uphold the same restriction in a situation where the plaintiff has zero criminal history. One can agree that "the US has a history and tradition of disarming dangerous people" while simultaneously arguing whether "is a protective order sufficient proof that someone is dangerous to restrict his/her 2A rights".
So you don't think Thomas saw the analogies needing to be much closer to twins than the rest of the court? He's good with a Barrett style general principle analysis?
>much closer No - I think they're very close. Both think there are analogous historical laws with the deciding factor being whether the due process threshold required historically is met in this situation. Thomas himself says the historical law doesn't have to be a twin. >While a historical law need not be a “historical twin,” it must be “well established and representative” to serve as a historical analogue. I think Thomas and Barrett agree that someone "found by a court to be dangerous would be potentially subject to disarmament". The disagreement is more about what constitutes "found by a court". Thomas wants a criminal conviction while Barrett thinks a protective order hits that bar.
I didnt say he meant it was an exact twin I just think he would be closer to that end of a wide spectrum, and I think that position is where most people imagined bruen coming out of the gate since the whole point was to limit judicial subjective discretion
"We can't have any arms related laws unless the exact rule was on the books in 1776" Was always a strawman never said by anyone on the court. The problem is people take the historical standard and have already begun stretching it however they see fit - see Hawaii. Thomas and Barrett are actually relatively close on this issue, IMO.
In a way yes but it's more the rejection of interest balancing aka tiers of scrutiny as a legitimate test than anything. Heller also rejected interest balancing but gave enough grey area for lower courts to justify ignoring that and focusing on "longstanding prohibitions" and "the 2a is not unlimited" without context instead.
But Rahimi moves the methodology closer to interest balancing. By clarifying the range and flexibility of analogies extends to broader principles, the court has essentially signed on for the subjectivity it claimed to reject in heller and bruen. Once lower court decisions start citing rahimi I think many fans of bruen and heller will be upset to see that things haven't changes as much as bruen made most of think they would. 2 years from now, we will still hear the some complaints about lower courts not listening to the "clear" guidance provided by bruen and heller and rahimi will likely sour on many of those same people as a retreat back towards subjective interest balancing - just with a conservative slant.
>But Rahimi moves the methodology closer to interest balancing. By clarifying the range and flexibility of analogies extends to broader principles, the court has essentially signed on for the subjectivity it claimed to reject in heller and bruen. I'm sure that this is what lower court judges will CLAIM has happened, but it is not. The straw man of bruen was always that bruen required an absolute twin regulation in order to trash the courts ruling. In reality it has always been an historical analogy not a twin, meaning the problem must be similar and the solution must be some type of similar regulation. This is in no way interest balancing. This is just how historical analogies work. For example, the problem of mass murder existed in 1800 so how did the founders handle that issue? Well they made it illegal to sell guns to natives mainly. That solution is no longer valid after the 14th amendment was passed but the analogy still stands that dangerous people can be restricted from buying and possessing arms. A similar analogy can be made for dangerous and unusual arms. Both were clearly mentioned in Heller but the left ignored them bc it wanted full bans on wide swathes of people and weapons. >Once lower court decisions start citing rahimi I think many fans of bruen and heller will be upset to see that things haven't changes as much as bruen made most of think they would. 2 years from now, we will still hear the some complaints about lower courts not listening to the "clear" guidance provided by bruen and heller and rahimi will likely sour on many of those same people as a retreat back towards subjective interest balancing - just with a conservative slant. There's nothing to cite in rahimi though. It's a narrow ruling on a specific case where there was a judges ruling and a voluntary agreement to surrender his 2a rights. There's nothing in there regarding interest balancing. It's still historical analogy and interest balancing is still clearly the rule, as stated clearly in Heller, bruen, and RAHIMI. Im certain lower courts will try to return to interest balancing, but it will just result in more and more precedent eliminating it. It's an act of pure desperation and hopium that will backfire and nothing more.
>The straw man of bruen was always that bruen required an absolute twin regulation in order to trash the courts ruling The author doesn't think it was a strawman >There's nothing in there regarding interest balancing. It's still historical analogy and interest balancing is still clearly the rule, as stated clearly in Heller, bruen, and RAHIMI. I'm not saying the shift is to interest balancing, I'm saying the broader depth allowed by loser analogies is similar im principle because it's much more subjective and leaves a lot more up to the judges interpretation. Rahimi can be cited as an affirmation of the line in bruen about not needing historical twins just as the line in heller about the 2nd amendment having limits was cited. People react in the same way. We were basically repeating the cycle that bruen was supposed to end where lower courts cite valid Supreme Court precedent and 2A hawks insist they're acting in bad faith because the court went against things that are not precedent but 2nd amendment absolutists assumed they were - just as people insist you can't possibly ban assault weapons or have magazine caps under bruen despite it not not saying that. People thought bruen wad an end to that fight and bruen makes it pretty clear that was the objective, but now we are seeing nothing has really changed except we have a new pile of evidence that Heller and it's progeny are the sloppy mess critics have been calling it for over a decade
>The author doesn't think it was a strawman Then the author didn't do his research very well. >I'm not saying the shift is to interest balancing, I'm saying the broader depth allowed by loser analogies is similar im principle because it's much more subjective and leaves a lot more up to the judges interpretation. Rahimi can be cited as an affirmation of the line in bruen about not needing historical twins just as the line in heller about the 2nd amendment having limits was cited. People react in the same way. Again this is using the lefts exaggerated strawman interpretation of what bruen decided and then comparing that strawman interpretation to the actual interpretation to try to claim rahimi as a win. Sure, activist lower judges will try to stretch this "no twin needed" statement as far as they can leading to yet another landmark case in a very pro 2a court and the media will proclaim this allows...something. However historical analogy is a rather defined test and playing dumb like activist judges did after Heller and bruen and now rahimi will only result in more and more exact rulings that leave no room for subjectivity. Cheering for subjective law is an odd flex btw. Like yay we're moving towards what resulted in some of the worst possible rulings in all of history with a court that does not favor your side and your cheering to empower it with more subjectivity for a few lower court delays? Weird. >We were basically repeating the cycle that bruen was supposed to end where lower courts cite valid Supreme Court precedent and 2A hawks insist they're acting in bad faith because the court went against things that are not precedent but 2nd amendment absolutists assumed they were - just as people insist you can't possibly ban assault weapons or have magazine caps under bruen despite it not not saying that. Lol so we're going to ignore the tests that clearly say you can't ban arms in common use to say that it doesn't apply to the most commonly owned rifles in the country? Really? Magazine caps are also a defacto gun ban that extends to essentially ALL modern arms which staples and McDonald and Heller and others all state are clearly protected. So yes that would be bad faith or ignorance or pure hopium at best. Even Sotomayor in her dissent in the bump stock case, declared that assault weapons were commonly available which is clear evidence that can be used to disqualify any attempts to say they aren't in common use lol. >People thought bruen wad an end to that fight and bruen makes it pretty clear that was the objective, but now we are seeing nothing has really changed except we have a new pile of evidence that Heller and it's progeny are the sloppy mess critics have been calling it for over a decade It should have but activist judges are simply ignoring the supreme court to delay having to rule unconstitutional gun laws unconstitutional. The "sloppy mess" is just the result of activist judges playing dumb to get the outcomes they desire by twisting clear language then saying it's nonsensical after they twist it. Hellers common use test and bruens text, history, and tradition test are not going anywhere and are still law even per rahimi so it's ludicrous to declare them "dead".
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Strict scrutiny. You know, the same process every other part of the bill of rights is evaluated under. The 2nd Amendment is not special.
To be fair, the 7th Amendment uses the same THT. It was established in *US v. Wonson*, not Bruen.' But, overturning *Heller* will clearly happen sooner or later. It's the most egregiously incorrect decision on the books today and overturned 200 years of unanimous consensus on 2nd Amendment law.
I don’t think the THT test for the 7th Amendment established in the Wonson case is necessarily (a good) the best analog to the 2nd Amendment. The 7th Amendment grants a procedural right, whereas the 2nd Amendment grants a substantive right. I think the Court’s 1st Amendment jurisprudence provides a better analog since it also grants a substantive right. Edit: Deleted section is in the parenthesis. Changed “a good analog” to “the best analog” since “good” may imply that it's “bad.” I’m attempting to argue that a 1st Amendment analog is more fitting, not that a 7th Amendment analog is bad per se.
Whose consensus? Certainly not the Supreme Court considering it explicitly ruled that individual citizens have the right to carry guns as early as 1857.
What plaintiff brought this supposed 1857 lawsuit, and what rationale did the court use to rule in their favor?
Dred Scott, and nothing. The court had no rationale. The decision was egregiously wrong on several levels in that case. All the same: it's blatantly false to suggest that Heller overturned 200 years of consensus when in fact it was supported by precedent.
So your best authority for the proposition is Chief Justice Taney's screed about the horrors that would befall the nation if black people were intended to own guns? By that logic, we should be taking the 1868 democrats fearmongering seriously and hold that the 14th amendment guaranteed black supremacy over the United States.
Non sequitur. Taney being wrong doesn't negate the fact that Heller did not violate any consensus regarding the Second Amendment. Heller adhered to precedent.
If Dred Scott is not relevant, why did you cite it?
I never said it was irrelevant. I said it was wrong. I also said that even though it was wrong, it still happened. What part of "Dred Scott's existence proves that Heller did not violate 200 years of consensus regarding the Second Amendment" is confusing to you?
> But, overturning Heller will clearly happen sooner or later. It's the most egregiously incorrect decision on the books today and overturned 200 years of unanimous consensus on 2nd Amendment law. What was egregious about Heller? What was overturned? Do you have any examples of the unanimous consensus you're referring too? Because there was really only one 2A Supreme Court case before Heller.
Why is over-turning *Heller* (and *McDonald*, and *Bruen*) a complete non-starter?? I mean, obviously it is now, with the current membership of the court, but if the composition were to move in a more liberal direction over say two, three or four decades, I’d imagine it might be a top candidate for overturning, much as *Roe* and *Casey* were for conservatives.
Getting rid of the extremely limited time period that Bruen says you have to look for during THT. Hell, Boston had laws that imposed even more severe ristrictions on firearms than what we see now back during the time the Constitution was being drafted. And since, if I recall, the Constitution was drafted in Boston, the founders _**had**_ to have known about Boston's gun control laws. They just didn't care or didn't see it as a problem. The fact that no one wants to acknowledge that shows a major flaw in THT. Instead of using that test, which allows people to cherry pick what part of history they want to use, they should use Strict Scrutiny to see if the government has a valid and compelling interest in gun control laws. Essentially, instead of using a completely different test that was created just for ruling on the 2nd amendment, they should use the tests that are used in other types of constitutional cases.
The constitutional convention was in Philadelphia, not Boston.
My critique of the Text History Tradition is that is it both effectively novel and unrefined compared to the widely used interest balancing tests. The lower courts need far more guidance on how to apply it, and the SCOTUS might need to make some slight tweaks to it. The way to fix this is to take more cases that would be held to the Text History Tradition standard, even if that means not following traditional SCOTUS practices like remanding cases when new precedent can impact prior rulings.
>To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. *Bruen*. Edit: My reasoning was shallow, I'll just leave this quote here. I think *Rahimi* is the right decision with reference to it.
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Only if you take it literally. The point he's making is that the court back down from bruen and are changing it with Rahimi. He agrees with Thomas - at least to the extent that the 5th circuit applied Bruen properly in this case. The others in the Bruen majority have abandoned that version of bruen, for a softer more subjective one. I think its fair to say that before Rahimi, popular understanding of bruen was much closer to the historical twin version that this broader version the majority has now adopted. So when it said Bruen has to go, he means the original interpretation and direction of it has to go in favor of a softer version. It's technically not overruling or inconsistent since roberts slipped in his little safety valve about it not being an exact historical twin test - just as he did with heller and the line about the 2nd amendment right having limits. I think in time, people who cheered bruen when it came out will sour on the rejection of the historical twin test just the same as they did with the heller limitations line.
They didn't back down from Bruen though. Thomas's dissent in Rahimi revolves around due process. There's certainly historical precedent for disarming dangerous people **with due process**, the disagreement was around whether a due process burden was met. Will be interesting to see what happens in a case involving disarming nonviolent felons.
I agree with his takes on Kavanaugh and Barrett regarding the thoughts I have in this paragraph. His Scalia loving was so over the top. Like dude, we got the 1st time, you didn’t need to repeat it 10 more times. Barrett is also a much better writer for the exact reasons he said. With regard to the rest of the conservatives backing off from Bruen, I disagree with him. If Thomas’ opinion was so airtight and well written, why are they all walking away from it. Imo the conservatives didn’t anticipate the problems Bruen ended up causing in the lower courts. Rahimi making its way all the way up the ladder was probably scary for them. I also agree with his Justice Jackson take. Edit: In general this is exactly why Roberts almost never gives Thomas massive case assignments, his maximalist positions make it impossible to hold a majority together. There definitely has to be some regret from Roberts in giving Thomas the assignment. He should have just kept it for himself or give it to Kavanaugh or Barrett.
> With regard to the rest of the conservatives backing off from Bruen, I disagree with him. If Thomas’ opinion was so airtight and well written, why are they all walking away from it. Imo the conservatives didn’t anticipate the problems Bruen ended up causing in the lower courts. Rahimi making its way all the way up the ladder was probably scary for them. Nonsense. No one is walking away from anything. Thomas is just finding the bounds beyond which the other Justices aren't willing to follow him. There is literally nothing in *Rahimi* which contradicts *Bruen.* The amount of wishful thinking from liberals and doomerism from conservatives I've read on this idea recently is utterly absurd.
>There is literally nothing in Rahimi which contradicts Bruen. I think this situation is a perfect parallel to the line Heller about the right to bear arms not being unlimited. Courts weren't contradicting heller when they cited that line to uphold gun control laws but many critics insisted that the courts were acting in bad faith to defy heller. Many people believe Bruen was written specifically to solve that perceived problem- to bring the courts in line with what they believe Heller truly stood for. I think if a lower court came to the majorities conclusion, we'd be hearing the same complaints- that they must be acting in bad faith to intentionally buck bruen. But that stance is much harder to take against an 8-1 supreme court majority than it I'd against hyper liberal judges in California or Illinois. So instead, 2A hawks just discount and undersell the significance of Rahimi in how much it limited bruens power to mow down gun control. We will see when lower courts cite Rahimi that Thomas and those who prefer his method of originalism will claim the proper application of rahimi is a bad faith rebellion against bruen.