This piece has gotten a lot of attention, so I am moving it to the top today.
My new essay at The Hill explains how the Supreme Court’s Bruen decision has crippled federal, state, and local governments from enacting reasonable gun control statutes.
Here is the gist:
Is the Supreme Court turning the Constitution into a homicide pact?
BY STEVEN LUBET, OPINION CONTRIBUTOR - 11/30/22 8:00 AM ET
It looks as though there will be no end to the fallout from Supreme Court Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen, holding that gun control regulations are “presumptively” unconstitutional unless they are sufficiently “analogous” to a 19th century law. The Court’s requirement of a close historical comparator has turned out to be almost impossible to satisfy, causing lower courts to invalidate or question otherwise reasonable laws prohibiting the obliteration of guns’ serial numbers and firearm possession by convicted felons or domestic abusers.
The Court’s embrace of an exclusively historical method of constitutional review represented an ideological triumph for Justice Thomas, who had been pushing for it in a series of dissenting opinions for years.
Thomas has ultimately succeeded at a long game, but his victory comes at a severe cost. The absence of an historical counterpart does not mean that a particular firearm limitation would have been considered unconstitutional by the framers, but only that they found it unnecessary, if they thought of it at all.
One judge has already ruled that domestic abusers cannot be prohibited from gun possession because there were no such laws in an age when domestic battery was regarded as an unprosecutable family matter. And high-capacity magazines were unknown, and would have been thought impossible, in the era of muzzle-loading muskets.
In 1949, Justice Robert Jackson famously cautioned, “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Justice Thomas has at last assembled a majority that now appears bent on turning the Second Amendment into a homicide pact.
You can read the entire essay, with much more about Justice Thomas’s historical jurisprudence, at The Hill.
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