Judge Clarence Thomas has opened the floodgates for all sorts of gun safety laws to be challenged in federal court.
The Supreme Court’s 6-3 ruling striking down a type of gun restriction adopted by only six states will have the effect of making all sorts of regulations across the country vulnerable to further legal challenges.
Thomas changed the test courts should use when analyzing the constitutionality of these regulations. Only gun regulations that are “consistent with the historical tradition of this nation” are consistent with Second Amendment protections, he wrote, in a claim that jeopardizes any restriction that has no historical parallel with the founding of the nation.
This new standard will change the legal playing field around gun laws.
There are cases already underway where the courts will now adjust their approach and raise the threshold governments will have to cross to uphold their gun safety laws. The decision will also likely lead to a slew of new legal challenges, with gun rights supporters now able to push more aggressive arguments as to why a restriction should be overturned.
Up for grabs are not just public transport laws like the New York regime in court. Virtually any other type of firearm regulation, including age-based regulations, restrictions on certain types of firearms, and limits on large capacity magazines, will now be considered by the courts as a harsher day.
THE OLD TEST VS. THE NEW TEST
Following a case called District of Columbia v Heller — a landmark 2008 decision in which the Supreme Court found that the Second Amendment protects an individual’s right to bear arms — appellate courts across the countries had coalesced around a two-step legal approach. to analyze the constitutionality of a firearms regulation.
The lower courts first considered whether the regulated activity fell within the scope of conduct protected by the Second Amendment. If so, then they assessed whether the means of the settlement justified its ends.
“Despite the popularity of this two-step approach, it is one step too many,” Thomas wrote Thursday, calling the second step inconsistent with previous Supreme Court gun rights precedents.
“Instead, the government must affirmatively prove that its gun regulations are part of the historical tradition that delineates the outer limits of the right to own and bear arms,” Thomas said.
Courts are required “to assess whether modern firearms regulations conform to the text and historical understanding of the Second Amendment,” Thomas said.
For example, he wrote, if a gun law deals with a societal problem that also existed in the 18th century, it is proof that the modern law is unconstitutional if there were not no similar regulations at the time. Likewise, he said, if this societal problem has historically been dealt with using a different type of regulation than is currently before a court, that also proves that modern law is unconstitutional.
“When confronted with such current firearms regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy – a common task for any lawyer or judge. Like all analogical reasoning, determining whether a regulation history is an appropriate analog for a modern firearms regulation requires determining whether the two regulations are “relevantly similar,” Thomas wrote.
WHAT THE RULE ENDANGERS
Thursday’s decision means that for a court to find any kind of gun law constitutional, it will have to be consistent with how guns have been regulated historically.
This means that states and localities will run into legal problems any time they try to enact a gun law that has no historical parallel, especially if the problem the law is trying to address is a problem that has probably existed for generations.
This analysis will apply to gun law cases that have already been appealed to the Supreme Court, which include challenges to California’s ban on magazines with more than 10 rounds, the Maryland’s ban on assault weapons and a challenge to the federal stockpile ban put in place. by the Bureau of Alcohol, Tobacco, Firearms and Explosives under former President Donald Trump. The high court can choose to take up these cases, or it can send them back to the lower courts with instructions for the laws to be reviewed in line with Thursday’s decision.
New York’s decision will also likely affect what happens next in a California case, where the state’s ban on preventing people under 21 from buying certain semi-automatic weapons was overturned by a panel. Curator of the 9th Circuit.
It may also have implications for the federal gun safety package that Congress is about to pass, if and when these modest gun safety measures are challenged in court.
And a whole slew of long-existing laws could face new lawsuits bolstered by the new, less generous test from conservative judges. The New York law had been in place for more than 100 years before the Supreme Court struck it down.
RESTRICTIONS ON ‘SENSITIVE LOCATIONS’
Thomas’ opinion addressed how courts might consider one type of restriction: restrictions on bringing firearms into sensitive locations, as defenders of the New York law have pointed out as a concern motivating its limits of public transport.
“Although historical records report relatively few 18th and 19th century ‘sensitive places’ where weapons were completely banned – for example, legislatures, polling stations and courthouses – we are also unaware of any ‘no disputes about the legality of these bans,'” Thomas said. “We can therefore assume that these places have been determined to be “sensitive places” where the carrying of weapons could be prohibited in accordance with the Second Amendment.
But regulations for “sensitive places” that go beyond those historical parallels could be constitutionally problematic, Thomas’ opinion suggested.
“It’s true that people sometimes congregate in ‘sensitive places’ and it’s also true that law enforcement professionals are usually available in those places,” Thomas said. “But expanding the category of ‘sensitive places’ to all places of public assembly that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”
Thomas’ opinion also refused to resolve a “scholarly debate” over whether, when analyzing the historical context around modern gun laws, courts should consider 1791, the date birth of the Second Amendment, or 1868, when the 14th Amendment was ratified. In a solo deal, Judge Amy Coney Barrett put her thumb on the scales for the earlier date, saying “Thursday’s decision should not be understood as endorsing coasting reliance on the historic mid-to-late practice.” late 19th century to establish the original meaning of the Bill of Rights.”
WHAT THE LIBERALS SAY
Justice Stephen Breyer, in a dissent joined by the other Liberals, said the “historical-only approach” is both legally flawed and fraught with “practical problems”.
“Laws regarding repeating crossbows, launcegays, dirks, daggers, hanks, stilladers, and other ancient weapons will be of little help to courts faced with modern problems,” Breyer wrote. “And as technological progress pushes our society ever further beyond the bounds of the Framers’ imagination, attempts at ‘analog reasoning’ will become increasingly tortured. In short, a standard that relies solely on the history is unjustifiable and unenforceable.”
Breyer called Thomas’ view “profoundly unworkable”.
“It imposes a task on lower courts that judges cannot easily accomplish,” Breyer wrote.
“The Court’s insistence that judges and lawyers rely almost exclusively on history to interpret the Second Amendment therefore raises a host of troubling questions,” Breyer added, noting the research resources needed to such an approach, how judges will choose which historians to rely on, and what courts should do with new developments in historical research.
“And, more importantly, will the Court’s approach allow judges to achieve the results they prefer, and then mask those results in the language of history?” Breyer wrote.
The majority, he added, allows judges to reject certain evidence in a way that will allow them “to choose their friends from the crowd of history.”
He said that when the nation was founded, even the largest cities in the country, like New York, had a very small population compared to today, when the vast majority of Americans lived on farms or in small towns.
Addressing Thomas’s examples of historically consistent “sensitive places”, Breyer asked what this meant for “subways, nightclubs, cinemas and sports stadiums?”
“The Court does not say,” Breyer wrote.