The Supreme Court Is Wrecking the Constitution
The Supreme Court is swinging a wrecking ball at the Constitution. The radicals on the Court are shredding well-established constitutional rights—and creating brand-new ones—as they cast aside precedents willy-nilly. They are ignoring, in fact defying, most voters’ views on abortion rights, gun controls and other key issues.
Goodbye, Roe v. Wade and Miranda. Hello, an absolute right to carry guns on the streets of New York City.
The conservative justices claim to be “originalists”, sticking to the text of the Constitution and strictly following the intent of the Founding Fathers. Nothing could be farther from the truth.
They are conducting power plays, imposing their unorthodox views simply because they can. They play fast and loose with the facts and use highly dubious legal arguments. These radicals don’t play by the rules; they make up their own.
Throwing Out New York’s Gun Control Law
In New York State Rifle & Pistol Association, Inc., v. Bruen, the Court ruled that New York’s 110-year old Sullivan Law regulating the ability to carry concealed handguns in public violated the Second Amendment. All three liberal justices dissented.
The Court was clearly looking for an opportunity to expand Second Amendment rights and curtail gun regulations. In reaching its decision, the Court overruled a Federal district court and the Second Circuit Court of Appeals, both of which had upheld New York’s law. The lower courts based their rulings on Kachalsky v. County of Westchester (2012), which sustained New York’s regulatory regime because it “was substantially related to the achievement of an important government interest”, that is, ensuring public safety.
Coming Soon to the Streets of New York /Getty Images
Creating a New Standard for Second Amendment Rights
In Bruen, the Court basically created a new, absolute right for citizens to carry concealed guns in public. Furthermore, the majority ruled that this right is so critical that it “elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense.
Those interests include New York’s policy of protecting its citizens by enforcing a strict licensing regime for handguns. The Supreme Court said that the lower courts should not have applied the typical “balancing test” for this Second Amendment right.
Instead, the majority said, New York could justify its gun regulations only if it could show that they were consistent with the nation’s historical tradition of firearms regulation. In the Court’s view, there is no tradition of strong gun regulations in the U.S., aside from some “outliers”. New York State therefore did not have the power to impose a strict licensing regime on handguns.
The Court’s ruling is an extraordinary assault on a state’s police power—its basic authority to protect its citizens from harm.
Some Inconvenient Facts
New York, along with six other jurisdictions, allows citizens to carry concealed handguns only in certain, limited circumstances. The state has strict licensing procedures.
What particularly irritated the Court, apparently, was New York’s requirement that applicants have to “demonstrate a special need for self-protection” to carry a concealed weapon and that state officials have discretion in deciding whether or not an applicant meets that standard.
The facts of the case indicated that New York state officials acted reasonably and in accordance with the state’s law. The two plaintiffs lived in upstate New York, in a rural area. Both obtained licenses to carry guns for hunting. One plaintiff also obtained a license to carry a gun with him as he commuted to his job. However, a New York state judge rejected both plaintiffs’ applications to carry a concealed handgun at all times, because they did not show that they were in any particular danger.
That supposed intrusion on the plaintiffs’ Second Amendment rights was intolerable for the conservative justices on the Court.
A Shoddy Opinion
Justice Clarence Thomas wrote the opinion for the majority. This is a shoddy piece of work, unworthy of the highest court of the land, and remarkably dishonest.
There is an Alice in Wonderland quality about this decision. Everything is topsy-turvy. Justice Thomas’ opinion disregarded numerous judicial conventions, and it grossly misrepresented the history of gun regulation in colonies and the U.S.
Casting Precedent Aside
Federal courts, including the Supreme Court, usually take great pains to honor legal precedents. They follow the doctrine of stare decisis, abiding by previous decisions, for several reasons.
First, judges realize that people have often relied on the law, as interpreted by key judicial rulings, as they make important decisions. So it is important to avoid sudden, major changes in the law. Second, respecting precedents acts as a check on judges, encouraging them to avoid impulsive rulings based on their personal views. Third, rapid shifts in legal decisions are likely to undermine the public’s faith in the courts’ fairness and impartiality.
So courts generally make incremental changes, particularly in cases involving questions of constitutional law.
Not this Court.
A Travesty Built Upon a Fraud
The Bruen decision is a travesty based upon a fraud.
Bruen relies for support upon the Court’s abrupt expansion of Second Amendment rights in District of Columbia v. Heller (2008). Before Heller, the Supreme Court assumed that Second Amendment rights had to be viewed in the context of citizens serving in a militia, based on the opening phrase of the Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Former Chief Justice Warren Burger certainly held that view. In 1991 Burger said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
“The very language of the Second Amendment,” Burger wrote, “refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. … The Framers clearly intended to secure the right to bear arms essentially for military purposes.”
In a radical reinterpretation of the Second Amendment, Heller said that individuals had a right to keep arms in their homes, rather than bear them in a militia.
The Heller decision remains very controversial. Even a conservative legal scholar like Richard Epstein of New York University Law School has criticized Heller as “a weak decision” because it ignored the “militia-centric” nature of the Second Amendment.
In Bruen, using Heller as its foundation, the Court has gone a step further, ruling that citizens have a fundamental right to carry concealed weapons outside the home. In this Court’s view, the “operative phrase” in the Second Amendment is “the right of the people to keep and bear arms shall not be infringed”.
Dissing the Legislature…and States’ Rights
Traditionally, courts have deferred to legislatures on key policy issues such as gun regulation. That is partly because lawmakers’ staffs have more expertise on the relevant topic than a few law clerks and judges. Courts also recognize that politicians are more in tune with public opinion and their constituents’ wishes.
Consequently, lawmakers are better equipped than judges to balance the competing interests of individuals’ rights and the state’s interest in maintaining public safety.
Not this Court.
In Bruen, the Court ruled that the (new absolute) right to carry guns outside the home is so critical, so fundamental, that states have very limited powers to enact any limits on an individual’s right to pack a handgun. So in this instance, the majority ruled, it is not appropriate for the courts to use the usual “balancing test”…. and weigh the state’s interest in protecting its citizens against the burden posed by restrictions on the right to carry a weapon.
So much for states’ rights…
Ignoring Real-Life Consequences…and the Facts
In another departure from usual practice, the Court adopted a “What Me Worry?” attitude toward the waves of deaths caused by firearms in New York and the rest of the country.
Most courts take into account the real-life consequences of their decisions. In his dissent, Justice Stephen Breyer did just that. Breyer cited numerous statistics showing the sharp rise in deaths involving guns in New York City and elsewhere. His dissent referred to studies demonstrating that states with strict gun-control regimes have lower death rates from gunfire.
Breyer marshaled these facts to support his view that New York State has very compelling reasons to follow a strict licensing regime. Breyer worried that the Court’s decision will lead to more shooting deaths.
Justice Thomas blithely ignored such facts or the possible ramifications of the Bruen decision. Instead, he wrote that there is “no proof” that such laws deter violence. That is false—as Breyer showed in his dissent.
And in his concurring opinion, Justice Samuel Alito openly mocked Breyer for providing the statistics. Alito asked, does Breyer think that this law could have prevented the shootings in Buffalo? Like Thomas’ majority opinion, Alito paid no attention to the studies that bolstered New York’s case for imposing reasonable gun regulations.
Rewriting Legal History
New York State argued that its licensing regime was based on a long history of gun regulation, beginning in 13th-century England. A distinguished legal historian, Patrick Charles, buttressed New York’s position in a friend-of-the-court brief that he filed. Charles cited numerous examples of gun regulation during the colonial era, in the “Wild West” territories, and, in modern times, in several states and cities.
The majority apparently ignored Charles’ brief, while Justice Breyer relied on it and other sources to show that in fact, there is a long tradition of firearms regulation in the U.S.
Here’s a fun fact from Breyer’s dissent: the phrase “the right to bear arms” was commonly understood in colonial times to refer to military service, that is, serving in a militia.
The majority opinion in Bruen brazenly cherry-picked the legal history. The conservative justices wanted to change the law, and they weren’t going to let the facts or history get in the way.
What is to be Done?
Sadly, we will be stuck with this unscrupulous crew for a generation. Forget pipe dreams about expanding the Court. If you live in a Blue State, count your blessings and work hard to elect Democratic or moderate Republican politicians who will protect your rights.
If you are a New Yorker, vote for the Democratic candidate for Governor in this year’s election. Lee Zeldin, the leading Republican candidate, is a fervent gun-rights advocate.
And if a guy on the subway starts making trouble, just get off the train. He may be packing heat, legally, thanks to the Supreme Court’s ruling.
If you live in a Red State, and the Court’s decisions in Roe and Bruen will affect you, abandon any hope that the local courts can protect your rights. It’s a long shot, but try to elect moderate lawmakers who can temper the extremists in your legislature. If that fails, consider moving to a Blue State.