The Supreme Court’s 6-t0-3 decision striking down New York’s licensing requirements for handguns is not nearly as broad as some are characterizing it. But the convoluted reasoning behind the ruling is perhaps more dishonest than even the court’s worst critics imagine.
Thomas writes that in justifying gun regulations, the government “may not simply posit that the regulation promotes an important interest.” Instead, he argues, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”
But, of course, the plain text of the Second Amendment says nothing about regulation of modern handguns, since they didn’t exist at the time of its passage.
Moreover, Thomas’s proclamation that gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation” is hooey. What history does he select from? His hyper-originalism suggests we should look to the 18th century or maybe the 14th Amendment. But if modern handguns weren’t around then, what tradition is he pointing to? He clarifies that guns can be prohibited in “sensitive” places (perchance the Supreme Court building?), as opposed to general public spaces. But again, where does this rule come from?
Thomas further muddies the waters by conceding the government need only “identify a well-established and representative historical analogue” of earlier gun regulations (presumably at the time of the Second or 14th amendments), not “a historical twin.” He adds, “Even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” If that is not a recipe for confusion and endless litigation, I am not sure what is.
As intellectually flawed as Thomas’s opinion is, it is not controlling because the concurring opinion from Justice Brett M. Kavanaugh and Chief Justice John G. Roberts Jr. effectively reels him in. Kavanaugh writes in the concurrence that the ruling “does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense” in the 43 states that “employ objective licensing requirements.” Only the six states where “authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria” are affected by the decision.
In other words, the potential for some concealed-carry laws remains. The concurrence stresses, “Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”
So what will pass muster? Who knows? And therein lies the folly of the court. The cherrypicked history modified by subjective reasoning from Roberts and Kavanaugh eradicates the very things the law is supposed to provide: stability and predictability. No state or local jurisdiction can look at this decision and be certain what will pass constitutional muster.
Harvard University’s Laurence Tribe, a constitutional scholar, tells me the three concurrences and the dissent provide “welcome boundaries on the otherwise outsized reach of the Thomas majority opinion.” But, he says, it would have been far better for the court to have “enumerated concretely the specific sorts of safety measures that are likely to win five votes.” Instead, lawmakers are left adrift and confused.
As dispiriting as the court’s lack of intellectual integrity might be, the dynamic at work here is worth noting. Two of the six rightwing justices on the court modified a sweeping, poorly reasoned right-wing declaration rooted in garbled history. That might minimize the appearance of the majority’s radicalism, leaving the actual impact of the decision far more narrow and far more confusing.
We might see a similar dynamic in the abortion case this term. In it, Kavanaugh and Roberts will no doubt need to confront another sweeping, ahistorical decision (likely from Justice Samuel A. Alito Jr., author of the leaked draft opinion). Will they try to craft another compromise to minimize the rash, aggressive activism of their four right-wing colleagues? We’ll have to wait until that decision comes down, likely next week.
In the meantime, the justices inadvertently make a powerful argument for term limits. If they are going to act like lawmakers unbound by history or precedent, then there is no reason to give them lifetime tenure. With each intellectually rickety decision, they give further justification to stop treating them like neutral judges and instead as the partisan figures they are.
