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June 24, 2022 - 7:00am
The second-most anticipated Supreme Court case of the term was handed down today in New York State Rifle & Pistol Association v. Bruen, a decision that — as the title suggests — concerned the limits of Second Amendment rights. As expected, the court struck down a restrictive New York state law concerning the right to carry arms outside the home, bringing it and a few other states more into line with general American practice and modern Second Amendment jurisprudence.
The 6-3 decision by Justice Clarence Thomas broke down along the predicted lines, with the six conservatives opposing the three liberals on the court, roughly following the battle lines drawn in the earlier Second Amendment cases of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).
The law in question was New York’s “may issue” statute on the issuance of carry permits. “May issue” laws, which prevail in six American states, hold that people may obtain such licenses when they demonstrate a “proper cause” for having them — a subjective need that the applicant must demonstrate to the satisfaction of a judge or law enforcement officer. “Shall issue” laws, in place in 43 other states, allow anyone who meets the objective legal criteria to be granted such a permit.
The court held that New York’s vague requirement was inconsistent with the Second Amendment, which not only protects the right to keep arms, but also to bear them. “To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections,” Thomas wrote for the court.
Bruen is a natural extension of Heller and McDonald, which established that the Second Amendment did protect an individual right to have a gun in the home. As in those cases, the court purposely based its ruling today on text and history, not on any “judge-empowering interest-balancing inquiry”. Where a law’s restriction is contrary to the text of the Constitution and historical practice in which that text is grounded, it must fail.
After a lengthy examination, the court concluded that New York’s law was inconsistent with the constitutional text and historical practice, and thus unconstitutional. This, they ruled, trumps the government’s claimed interest in restricting the right.
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SubscribeNo, but it did abolish intermediate scrutiny and the “two-step” approach and it demolishes the idea that states can use bureaucratic force as a de facto ban. That is where the real panic on the left is coming from. As for the people fretting about carrying guns in sensitive places, all the court ruled is that New York cannot just literally declare all of Manhattan to be a sensitive place.
The court affirms that the US is a constitutional republic. The 3 dissenting SCOTUS judges chose their personal preferences over clear Constitutional language regarding the peoples’ right to keep and BEAR arms. Those 3 should drop all pretense that their opinions are based on this protecting document.
With the coming abortion decision we will likely see the same split: constitutionalists vs. Stalinists (might makes right). In the abortion debate we will see the proper answer – new laws by the peoples’ representatives to address the issue.
I have read this article twice, but I am still none the wiser…
From what I can gather, because the make up of the court is currently right leaning then all judgements will go that way currently. If two died tomorrow and Biden got to pick two left wing candidates then all recent judgements would have gone the other way
Yes. So the constitution is subservient to interpretation. Am I correct?
P.S. I do not live in the US.
No idea, I’m English and I find the whole American setup rather ridiculous to be honest
With a name like Billy Bob? LOL!
I’m American, and I find the whole English setup to be rather ludicrous, to be honest. No written constitution? Executive and Legislature in one body? There’s so much to critique about parliamentary systems.
The fluidity of the British system is one of its great strengths. It allows the law to be set by a majority and move along with the times and attitudes of the day rather than being beholden to a document written centuries ago in a completely different age and opinions
Endless upvotes Billy Bob!
Yes, written constitutions in the American form is a millstone in many ways. A bunch of people who lived at a particular time a few hundred years ago asserting themselves against the elected representatives of the people for all time.
You’re making the argument for a written constitution that is not subject to the whims of public opinion or “attitudes of the day.” Cf. C.S. Lewis and “chronological snobbery.” And for a judiciary that looks at original intent of the constitution and its amendments rather than legislating from the bench.
The American system may have its flaws but I’ll take it any day, with its built-in checks and balances. And the Constitution has an amendment process, so it’s not like us Yanks are unable to change it. We just feel that there ought to be a darn good reason for doing so!
Let me help you. The framers of the Constitution, believers of limited government and conservatism, wanted it to be difficult (not impossible) to change certain features of government and personal rights, like freedom of speech, which I might add, you don’t have! If I were PM with a parliamentary majority I make your criticism of US government structure a crime tomorrow – talk about ridiculous!
I think that is the case no matter which side is in the majority. But I think the tendency is for more liberal judges tend to take the view that it is ok to be very interpretive when making decisions around the constitution, while more conservative ones tend to see that as a less desirable approach, and this is characteristic of a basic difference in the way the two groups understand their role and the constitution.
All written constitutions are subject to interpretation.
In most states, the licence to carry is issued if you meet an objective set of requirements. But in 6 states, the criteria is vague and subjective. Those states have now got to change their laws to an objective standard, that’s all.
Ideologues are going mental because they either don’t, or deliberately won’t, understand.
Thanks Sharon,
That much I more or less gathered, but all the explaining that the author made went right over my head.
I think the author should have added some real life examples to clarify what it all means.
(And WTF is the down vote for??)
TL;DR Progressives wanted the Supreme Court to ‘own the chuds’ but it didn’t. Author points out the policy that was struck down actually disproportionately targets minorities who tend more often to have guns.
Basically states can regulate, but only using objective criteria, not subjective opinions of the person requesting a permit.
Which could actually be a Progressive view as explained in the last paragraph.
“subjective opinions of the person requesting a permit.” no, the problem is the subjective opinion of the person granting the permit. The Court ruled that a state must use objective criteria when granting a permit eg that the applicant be of a certain minimum age, or not have a criminal record
I believe the majority opinion also referenced the 14th Amendment, did it not?
Yes, it referenced both the 2nd and 14th Amendments.
In this case, the citing of the 14th Amendment was probably redundant, as the prohibition on infringing the right to keep and bear arms in the 2nd is not in its plain meaning limited to acts of Congress was are the prohibitions in the 1st Amendment. It is, however, customary in American jurisprudence to regard the 14th Amendment as extending the prohibitions placed on the Federal government by the Bill of Rights to actions of the states.
As an aside on that, there was a period prior to the ratification of the 14th Amendment in which some states had established churches (If I recall, correctly, Congregationalism was the established church in Massachusetts) — they had all disestablished them before the extension of the 1st Amendment to the states by the 14th.
the court used the 14th as their basis for incorporating the 2nd’s “bear” clause against the States. As originally written in 1789 the 2nd amendment only forbad the National government from making gun laws, not the States.
To an outsider that sounds about right. The conclusions seems to be that you have an individual right to own a gun and carry it about, with a few small exceptions. If nothing much changes for now it is because few states are actually trying for gun control – the NRA has been winning for a long time. If it is still possible to have restrictions, it is because the court judges that such restrictions will make little difference.
I love how you think the NRA is even relevant anymore and was involved in this. The whole organization is about to go under or suffer serious restructuring and nobody in the gun community cares. It was up to the New York local chapter (New York State Rifle and Pistol Association) to pretty much act on their own. The national organization is only good for sucking up donations and funneling them into the board’s private bank accounts. The national organization responsible for pushing this was the FPC (Firearms Policy Coalition).
I stand corrected – that’s what comes from commenting on a country I do not know enough about. Would you accept a wording that ‘the pro-gun lobby’ has been winning for a long time?
It is interesting to compare with abortion. In both cases the Supreme Court has made a decision that takes away the power of states, and the electorate, to decide on crucial and controversial issues, based on more or less imaginative readings of an old text that did not and could not take account of problems that would arise two centuries later. On abortion the Right is all for leaving power with the states and the political process. On gun control, for some reason, it is all for taking it away. To be sure, the gun control decision does seem to be better founded in the constitutional text than Roe v. Wade. Still we are talking about an unelected court of unremovable judges that can take ideological decisions on all the most important issues of the day with very little restraint and no recourse. It hardly sounds like an ideal decision-making process – unless you happen to be winning.
I agree that this new decision seems to be inconsistent with the as-yet unreleased decision regarding abortion. That said, I disagree with you that the Roe draft opinion is not well-founded in Constitutional text. The original Roe decision is viewed by most legal scholars as one that creates law where none previously existed. Recall that laws should originate from Congress, thus the decision based upon a tenuous interpretation of “privacy rights” was always doomed to be struck-down.
I actually agree with you on that point – I must have written it badly. As it happens, I am against abortion – I just think it is the kind of dedision that should be taken by the political process. Not by a bunch of unappealable lawyers looking for justification in a vague and imprecise document. They do it in Europe too, just that the European Court of Human Rights tends to be on the woke side of the argument.
Just for fun, do you think the best way of deciding on who should be allowed to bear arms in 2022 is by having a group of partisan legal scholars argue over the meaning of “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“, with or without commas, as seen in the light of the political situation in 1791? And does it make any difference to you that the individual right of bearing weapons for self-defence was not established till 2008? Did that not ‘create law where (for over 200 years) none previously existed’?
People had guns when this constitution was drafted. They didn’t have access to abortion – though if they had, the religious supremacy at the time, even in supposedly secular setup, would have probably prohibited abortion for any reason.
That would have made for an interesting debate about the relevance of this ancient document.
The alleged inconsistency is more apparent than real. The whole point of the Bill of Rights (the second amendment emphatically included) is to place hard limits on what the state (through the political process) may do. The constitution explicitly forbids the state to take away the right to keep and bear arms; therefore it is appropriately removed from “the political process.”
In the case of abortion, there is no explicit language in the Constitution forbidding the state to regulate or outlaw it. Therefore it should be left to the political process.
There is absolutely nothing “imaginative” about reading the phrase “to bear arms” to mean “carry your gun with you in case you might need it.” And, it may be an “old text” but even so, it remains the supreme law of the land.
Generally agree with your post which is why I upvoted it, but not with your last paragraph.
Everyone seems to ignore the part that says ““A well regulated Militia being necessary to the security of a free State”
A “well regulated militia” is NOT unregulated individual gun ownership .
The original founders I am sure never imagined mass shootings, serial killers, or urban gangs shooting at each other over drugs or honor.
Actually, two of them shot at each other on the plains of Weehawken. Remember the story of Alexander Hamilton and Aaron Burr? Dueling was illegal in New York so they moved the duel to New Jersey, but there was never a question of their right to have those guns.
It was definitely over drugs or honor. Specifically, honor.
The problem with you view is that at the time of the American Founding, the militia was understood to be the entire body of the citizenry capable of bearing arms, and “well-regulated” had the sense of well-equipped. In those days, the cannons now seen on American village greens were functional, and powder and shot were kept nearby — they were the artillery of the local militia and more likely purchased with private subscriptions than with tax moneys.
Hilarious: ‘Old text’ = The Constitution of the United States!!
I know we don’t have one, Rasmus, but the US does. It can be changed with enough support. As with Roe v Wade, all the judicial interpretation tends to be on the liberal side; liberal judges have often stretched the Constitution to mean what they think it ought to, rather than what it says.
‘Unelected judges’ – what is your point here? Firstly, the Supreme Court judges are appointed through a political process
Secondly, the usual criticism of the US system is that so many judges ARE elected. Thirdly, UK judges are not elected either.
The point is that the judiciary works well as a body that enforces existing rules and existing laws, or acts as arbiter of last resort in constitutional crises (like the Bush election, or, in the UK, the prorogation of Parliament). Sticking to the US, some of the civil rights judgements may have been a bit creative, but arguably that was a necessary response to creative ways of subverting the post-civil-war constitutional changes. The Court did not invent civil rights for themselves, even if they did (e.g.) come up with busing as a remedy.
The judiciary does *not* work well as the body that solves irreconcilable philosophical differences or that decides how to deal with new problems, like abortion or gay marriage. The judiciary has no democratic anchoring, and while they are in theory bound by law texts, many kinds of problem are simply not properly covered by existing constitutions or laws. In Europe there is the Declaration of Human Rights and the ECHR, in the US there is the Constitution and the Supreme Court. In either case we have a fairly vague, general document, and application to specific modern problems leaves way too much room for judges to follow their own political bent. It is like asking what the Bible says about cryptocurrencies – there is simply not enough data there to act as anything but a smokescreen for whatever the interpreters decide.
On your other points, it is not true that the Court always leans liberal. There has been a period, sure. But historically the Supreme Court has been pro-slavery, anti-new-deal, and more recently pro-gun, against campaign finance reform, and, just recently, anti-abortion. Also, the chance for changing the constitution is more theoretical than practical (as mentioned elsewhere on this page). If there is widespread consensus on some point you could change the constitution but it hardly matters. If anything is contentious, changes are too hard in practice.
The basic problem is that the Supreme Court is charged with taking decisions that do not naturally belong in the judiciary, but in the political system. Obviously it becomes a political organ as a consequence – but neither its organisation (irremovable, independent judges), not its authority, supposedly deriving from neutral interpretation of existing rules, is particularly well suited to the role it currently has.
The Constitution has over time become rather like a religious text. It can never be changed, only interpreted.
This is because the mechanism for amendment has become unworkable. What could be done with some difficulty when there were less than a dozen states isn’t possible with 50 + DC. After Phyllis Schafly managed with a small guerrilla campaign to block the ERA years ago it was clear that the 25th Amendment limiting presidential terms would be the final Amendment.
The Constitution is now set in stone. No change will ever be made democratically. ‘Interpretation’ has been substituted for Amendment. Two bad results flow from this.
The choice of judges is completely politicised up and down the chain. Supreme Court judgements depend on which President managed to appoint more judges (Trump got very lucky in this regard, helped by Mitch McConnel’s blocking of Merrrick Garland in the last year of Obama – Garland attempts some revenge now as Attorney General).
The other -. even worse – consequence of the ‘dead’ Constitution is the murder of language needed to ‘interpret’ the document according to the latest fashions. For instance, how can the right to abortion be ‘discovered’ in a document written in the late 18thcentury? But, if this question cannot be put to democratic control via Amendment, what then? And it is clear that no Amendment, for example, abolishing or altering the 2nd Amendment will ever be passed. Nor would any proposed Amendment to enshrine abortion rights succeed. Nor, conversely would an Amendment giving equal rights to the unborn have any chance of success.
So the Law and the Constitution of the USA are in the hands of sophists. Meaning is what they say it is, at any particular point of time. Humpty Dumpty….’The question is who shall be master,,,’
Very convincing. But would you not say that it is the entire system, not just constitutional amendments, that are frozen?
One version would be that the US constitution was written to exclude the possibility of a king or similar dictatorship, with multiple organs that keep each other in check, protection for small states, etc. And the result was that not just dictatorship but any form of decision making on controversial subjects became impossible. You could never agree, but you could always block. The Supreme Court stepped in because it was the only organ with constitutional legitimacy that could not be blocked, but, unsurprisingly, its legitimacy and impartiality could not hold once it had to take all the hard decisions. It is interesting to read of the Dredd Scott decision, an early case where the Supreme Court took it on itself to take a controversial matter out of politics and give it a permanent solution, apparently on the basis of originalist reasoning. Let us say that they neither solved the slavery question nor avoided the Civil War.
I’d welcome any US citizen with better information to tell me why my amateur musings are wrong.I might learn something.
I think, Rasmus, that the Founders did their best and that the Constitution held up as well or better than any written document could do, or has done, over more than two centuries of great change. But, yes, the whole system may now be frozen, even though a rather easier Amendment mechanism might unblock things a bit.
One consequence, of course, of a written constitution is that power and corruption will flow around it and through the cracks between its clauses. What has the Constitution to say, for example, about the seniority system and the power of committees in Congress (especially in the House)? But this is where much of the power and budgeting of the federal government is decided.
A constitution set in stone? It’s not easy to amend the Constitution, that’s true, and with good reason. But it can be done and has been done many times. What about the 13th Amendment that abolished slavery and the next three that established Reconstruction?
The process, though difficult, is supposed to discourage hasty decisions that emerge from fashionable (and often ephemeral) movements. And yet it allows the correction of mistakes. Consider the 18th Amendment of 1919 (which ushered in the disastrous era of Prohibition) and the 21st Amendment of 1933 (which ended that “noble experiment”)? There are now 27 Amendments.
Originalism, as a method of interpreting the Constitution–and every document, old or new, must be interpreted–does not assume a “dead” constitution. Rather, unlike the “living tree” model of constitutional law, it assumes the need to take seriously what the founders had in mind, their basic moral and legal principles, when they established the country. Otherwise, given the recurring and radical changes in public opinion, why have a constitution at all? To endure, democracies must rely on something more stable than public opinion polls or ballots.
The thirteenth and Reconstruction amendments are hardly a good example. They were only passed because the North forced the South to accept them, by force of arms. Do you think the ‘mistake’ of slavery would ever have been corrected by peaceful originalism?
I don’t understand your point here. Maybe not at all but maybe in precisely the same way as slavery has been (legally) abolished in most other nations, through changing the laws, albeit on a state basis in the United States.
I sense the constitutional centralists of Britain don’t really understand the US system, which is truly federal and limits the national government’s powers.
You do not address my prediction that there will be no more Amendments. The past successes of the Amendment process are no guide.
Nor do you deal with my judgements on the results of Amendment sclerosis. Namely the thoroughgoing politicisation of the judiciary and the consequent erosion of the separation of powers, a founding principle of the USA. And also the corruption of language necessary to interpretation which has spilled over into all kinds of non-constitutional issues.
Incidentally, you do not seem to recognise the arrogance involved in ‘taking seriously’ the basic principles of men (and indeed it was men) who lived in times very far from our own and whose world is stranger to us than we think (ours would also be foreign to them).
You seem to be saying that the United States has a worse system of government than…..whose exactly? There are no perfect systems, and any system with a written Constitution requires someone to honestly follow and interpret it occasionally, hopefully again in a a very limited way (by not stretching meanings too much). Or of course, entirely ignore it, as with Stalin’s USSR Constitution!
Having a written constitution may well be the problem.
1000 upvotes
All those pesky rights and restrictions on government power keep you from your oh so trendy right now enlightened social goals huh? Too bad. That is explicitly why they were designed that way from the beginning. Federalism, the Bill of Rights, separation of powers, bicameral legislature, electoral college, judicial review, and many other mechanisms were formed as the bedrock of the American political system for exactly that purpose. Don’t like it? Don’t care.
But the Constitution can be changed. It explicitly includes provisions for its amendment. They are difficult: 2/3 of both houses of Congress, and ratification by majorities in the legislatures of 3/4 of the states (or similar majorities in specially called conventions convened for the purpose, in a version of the procedure never yet attempted). Difficult as they should be. The whole point of a written constitution is to have rules that are fixed, known by the citizenry, within which the government must operate. The gun control lobby (and abortion industry) want the Constitution to be like the “rules” of the fictitious game Calvinball, changeable at whim so the can always win. Happily the present US Supreme Court expects laws to be made by democratic process, but to be limited by the explicitly anti-democratic provisions of the Constitution (supermajorities to change the Constitution, the Bill of Rights, the prohibition on ex post facto laws and bills of attainder,,… ).
Abortion isn’t mentioned in the Constitution; the real beef of progressives is the legal restrictions on it imposed by some States entirely legitimately through their democratic processes. It is now clear that the Constitution cannot be used to override that through a patently ridiculous extension of the concept of ‘privacy’.
And FINA didn’t ban transgender swimmers either with their new rules. What’s wrong with journalism today that the facts are so twisted even by intelligent reporters?
What a basket case of a country. A horribly politicised top court whose composition is based entirely on luck and timing of previous incumbents falling off their perch, making ideological laws overriding states when it suits their interests
They can resign. They don’t have to stay there until death.
You’re splitting hairs there. I’m well aware of that, but that doesn’t alter the fact what is essentially an unelected political court holds an unbelievable amount of power in the states, and rulings are almost split down ideological lines
Because they insist that the text be followed? The right is enumerated, and has been understood for some time, now, to be an individual right, as are the rest of the first ten amendments.
Tomorrow, when Roe gets tossed, the many states will have their primacy over the federal government, also as enumerated, restored. While the result of that decision will upset many, many people, the Court will be returning to the many states powers that never should have been usurped in the first place.
While the United States judicial system does have its faults, so do those of your New Zealand and other countries.
I’ve been a lawyer in the US (a common law country) for 30 years, and also spent 10 years in Japan (a civil law country) studying Japanese law and working at a Japanese law firm. I’ve read and written on comparative law in both English and Japanese.
Describing the US as a basket case of a country with a horribly politicized top court by a person who can’t even grasp the meaning of a well-written, simple article like this one shows an ignorant mind rather than an informed one.
A reply that has to resort to personal insults indicates a lack of conviction in your arguments I’m afraid
True enough – and I mostly agree with you on the substance. But if you start out by calling someone else’s country a basket case with a horrible court, what, exactly, would you expect in return?
From the outside looking in, the system does appear to be a basket case, with unaccountable partisan judges interpreting centuries old laws to suit their ideological outlook. I don’t believe I’m insulting individual yanks by saying that and I never would as I’ve always found them to be a very friendly race of people but that doesn’t mean I shouldn’t be able to criticise the way their Supreme Court is set up if I think it’s a poor system
Surprised at the downvotes Billy Bob – I’m with you on this – basket case is a pretty good summation.