My new column is posted at The Hill, explaining the disastrous consequences of the Supreme Court’s recent Bruen decision. As three lower courts recently discovered, it makes reasonable gun control almost impossible.
Here is the gist:
The Supreme Court’s bad history
by Steven Lubet, Opinion Contributor - 11/16/22
According to Justice Clarence Thomas’s opinion, a gun control statute can be upheld only if there is an “American tradition justifying” its specific provisions, meaning similar laws in force around 1791 (when the Second Amendment was adopted) or 1868 (when the Fourteenth Amendment was ratified, which made the Bill of Rights applicable to the states).
It is unsurprising that poor history leads to unmanageable law. Three lower court judges recently discovered that the Bruen standard is almost impossible to apply reasonably to contemporary circumstances.
District Judge Joseph Goodwin, sitting in West Virginia, determined that he could not enforce the federal criminal law against knowing possession of a firearm with an obliterated serial number, despite “the usefulness of serial numbers in solving gun crimes.”
Mississippi District Judge Carlton Reeves faced a similar problem in a prosecution under “the federal statute prohibiting felons from possessing firearms.”
Even domestic abusers get a pass under Bruen, as Texas District Court Judge David Counts ruled in U.S. v. Perez-Gallan. With “historical analysis being the only tool” permitted, Counts determined that the Second Amendment required him to dismiss charges against a gun-carrying defendant who was under a restraining order for “threatening . . . domestic violence.”
Under Bruen, a silent historical record disables the courts and law enforcement from protecting the population from mayhem. Ghost guns, armed felons and domestic abusers may be shielded by the Constitution in ways that vulnerable school children are not.
Many observers have characterized Thomas’s approach as cherry picking, but that is too generous. Cherry picking, after all, at least yields something worth having. Bruen’s holding, on the other hand, just leaves a dangerous mess.
You can read the entire essay at The Hill.
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