Justice Clarence Thomas opened the door to all sorts of gun safety laws that will be challenged in federal court.
The Supreme Court’s March 6 decision to rescind gun-carrying restrictions imposed by only six states would have the effect of making all sorts of regulations across the country vulnerable to challenges. new legal form.
Thomas changed the test courts used when analyzing the constitutionality of those regulations. Only weapons regulations “in keeping with the historical tradition of this Nation,” he wrote, would comply with Second Amendment protections, in an assertion that risks endangering anyone. any non-historical restrictions on the founding of the nation.
This new standard will change the legal playing field around gun laws.
There are cases already kicking in where the courts will adjust their approach and raise the threshold that governments will have to cross in protecting their gun safety laws. The ruling is also likely to lead to a new set of legal challenges, with gun rights advocates now able to make tougher arguments as to why the restriction should be lifted.
Up for grabs is not just a law of public execution like the New York regime in court. Almost any other type of gun regulation, including age restrictions, restrictions on certain types of firearms, and limits on high-volume magazines, will now be considered by the courts from a different perspective. harsher.
OVER TEST VS. NEW TEST
In the aftermath of a case called the District of Columbia v Heller – a landmark 2008 ruling where the Supreme Court determined that the Second Amendment protects an individual’s right to own firearms – appellate courts across the country have united on a two-step legal approach to analyzing the constitutionality of gun regulation.
The lower courts first considered whether the regulated activity falls within the scope of Second Amendment protected conduct. If so, they will then assess whether the means of regulation are fit for its purpose.
“Despite the popularity of this two-step approach, it is one step too much,” Thomas wrote on Thursday, calling the second step inconsistent with previous Supreme Court gun rights precedents. high.
Instead, governments must demonstrate with certainty that their firearms regulation is part of a historical tradition that demarcates the outer boundary of the right to keep and bear arms.
Courts are required to “assess whether the regulations governing modern firearms are consistent with Second Amendment text and historical understanding,” Thomas said.
For example, he writes, if gun legislation is addressing a social problem that also existed in the 18th century, it is proof that modern law is unconstitutional without a similar provision. Likewise, he said, if historically that social problem was resolved using a different kind of regulation than the one currently in court, it is also evidence that modern law is Unconstitutional.
“In the face of such today’s firearms regulations, this historical investigation that courts must conduct will often involve deduction by analogy — a task common to any lawyer or judge Like all analogy, determine whether a historical rule is an appropriate analogy for a Thomas to write.
GROUPS OF PROVISIONS IN JEOPARDY
Thursday’s ruling means that for a court to find any gun constitutional, it will have to conform to the way firearms have been regulated historically.
That means states and localities will run into legal trouble whenever they try to enact gun laws that have no history of parallelism, especially if the issue this law is trying to solve is an issue that has been discussed in the past. believed to have existed for generations.
This analysis will apply to gun law cases that have been appealed to the Supreme Court, including challenges to California’s ban on magazines with a circulation of more than 10 rounds, the ban Maryland assault weapons and challenge to the applicable federal stockpile ban. of the Bureau of Alcohol, Tobacco, Firearms and Explosives under former President Donald Trump. The high court could choose to hear those cases or could send them back to the lower courts with instructions that the law be reviewed under Thursday’s ruling.
New York’s decision could also affect what happens next in a case in California where the state’s ban prohibits people under the age of 21 from buying certain semi-automatic weapons. was abolished by a conservative governing board.
It could also have an impact on the federal gun safety package that Congress is poised to pass, if and when those modest gun safety measures are challenged in court.
And entire sets of long-standing laws could face new lawsuits bolstered by the less generous new trial of conservative judges. New York law was more than 100 years old before the Supreme Court overturned it.
LIMITATIONS ON ‘Sensitive Places’
Thomas’ comments referred to how courts could view one kind of restriction: restricting the carrying of guns into sensitive places, as defenders of New York’s law have pointed out as a concern. promote public gun-carrying limits.
“Although the historical record shows relatively few ‘sensitive sites’ of the 18th and 19th centuries where weapons were outright banned – legislative assemblies, polling places and courts, for example – nor do we know that there is no dispute about the legality of those bans,” Thomas said. “We can therefore assume that these locations are ‘sensitive locations’ where the carrying of weapons may be prohibited in accordance with the Second Amendment.
But regulations for “sensitive places” beyond those historical similarities could be constitutionally questionable, in Thomas’ opinion.
“It’s true that sometimes people congregate in ‘sensitive places,’ and just like that, law enforcement professionals are often present in those locations,” Thomas said. “But expanding the category ‘ sensitive locations’ simply for all public gathering places that are not segregated from law enforcement would define the category of ‘sensitive locations’ too broad.”
Thomas’ comments also refused to address an “academic debate” about whether when analyzing the historical context surrounding modern gun laws, courts should consider 1791, the birth date of the gun. The Second Amendment, or 1868, when the 14th Amendment was ratified. In a single concurrence, Justice Amy Coney Barrett put her thumb on the scale for the previous day, asserting that “Thursday’s decision should not be construed as confirming reliance on free activity. based on historical practice from the mid to late 19th century to establish the original meaning of the Bill of Rights.”
WHAT WHO SAYS?
Justice Stephen Breyer, in a dissent with other libertarians, said the “historical approach” was both legally flawed and ripe for ” practical problems.”
“Laws addressing the repetition of crossbows, crossbows, diggers, daggers, skewers, barricades, and other ancient weapons will do little to help courts facing modern problems,” Breyer writes. “And as technological progress pushes our society more and more beyond the bounds of Framers’ imagination, attempts at ‘analytic reasoning’ will become increasingly tortured. In short, a standard. Relying solely on history is unjustifiable and unenforceable.”
Breyer called Thomas’ comments “deeply unrealistic.”
“It poses a task to the lower courts that judges cannot easily fulfill,” Breyer writes.
“The Court’s insistence that judges and lawyers rely almost exclusively on history to interpret the Second Amendment thus raises a troubling set of questions,” Breyer added, pointing to sources the research force that such an approach requires, how judges will choose which historians to rely on, and which courts will create new developments in historical research.
“And, most importantly, does the Court’s approach allow judges to get the results they want and then mask those results in the language of history?” Breyer wrote.
Majority, he added, allows judges to dismiss certain evidence in a way that allows them to “pick their friends out of the crowd of history.”
He says that, at the time of the nation’s founding, even the country’s largest cities, like New York, had very small populations compared to today, while the vast majority of Americans lived on farms or in other towns. small town.
Addressing Thomas’ examples of historically consistent “sensitive locations,” Breyer asks what that means for “subways, nightclubs, cinemas, and sports stadiums?”
“The court did not say,” Breyer wrote.