Gun Ruling Proves Supreme Court Just Coasting On Vibes At This Point

Dangerous teacherEarlier this week, Jamelle Bouie offered a stinging and completely on point critique of The Atlantic. In an article that the magazine confoundingly edited and approved, Brookings Institution Senior Fellow Shadi Hamid riffed for almost 2,200 words critiquing an anonymous “in certain circles” straw adversary. narrow claim, but then you might have to contend with what your opponents actually believe and argue… much easier to coast on vibes. ”

Juxtapose this with a recent New York Times op-ed by Kate Shaw and John Bash titled, “We Clerked for Justices Scalia and Stevens. America Is Getting. Heller Wrong. ”In it, the pair wrote that“ we think it’s clear that every member of the court… agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation. ”Not to get too technical, but in legalese this contention is what we call “total bullshit.”

Which brings us to today, where the Supreme Court has ruled 6-3 that states have no legal authority to regulate guns in public. Or, to be more precisely cynical, states DO have legal authority to regulate guns in public as long as that regulation amounts to a non-discretionary rubberstamp of every request to carry concealed weapons.

From the Shaw and Bash op-ed, “We are aware of no evidence that any perpetrator of a mass shooting was able to obtain a firearm because of a law struck down under under Heller. But But Heller looms over most debates about gun regulation…. ”

Yeah… and for good reason!

Because everyone able to step two feet from under the suffocating high of tugging a Supreme Court justice’s robes knew what Heller meant. It never mattered what Heller The opinion stood for the maximalist position it implied, never the carve outs it enumerated for reputational expediency.

Because Scalia did include language in Heller explaining that, while the opinion only dealt with keeping guns in the home, everyone would be fine with this precedent because hypothetical laws about regulating guns in “sensitive places” for public safety would still be allowed.

Which was always a joke.

New York argued that stopping people from sneaking guns onto the subways and stadiums would constitute such a sensitive place. Justice Thomas dismissed this out of hand. “Sensitive places” can still be regulated… he just isn’t willing to identify what such a place is except, presumably, a few blocks from Kavanaugh’s house. “Like Hellerwe’do not undertake an exhaustive historical analysis .. .of the full scope of the Second Amendment, ”he wrote, cribbing Justice Stewart’s“ I know it when I see it ”standard. There might be a line where gun regulations are legal , but we won’t let you know where it is (because it doesn’t exist).

But it’s Justice Alito’s “doth protest too much” concurrence that unintentionally underscores the vibes approach.

Much of the dissent seems designed to obscure the specific question that the Court has decided, and therefore it may be helpful to provide a succinct summary of what we have actually held. In District of Columbia v. Heller, 554 US 570 (2008), Heller found that the Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s amendment as rooted in “’the natural right of resistance and self-preservation.’”Id., At 594.“[T]he inherent right of self-defense, ”Heller explained, is“ central to the Second Amendment right. ”Id., At 628.

That’s all a lie, by the way. The Justice Stevens dissent methodically debunked the idea that anyone at the Founding believed in a right to self-defense, noting that the Framers were on record that the Second Amendment was just about providing states a guarantee that there would never be a standing federal army.[1]

Although Heller concerned the possession of a handgun in the home, the key point that we decided was that “the people,” not just members of the “militia,” have the right to use a firearm to defend themselves.

In other words, Alito admits that the Court just erased half of the text of the Second Amendment in HellerThat’s the real meat of what happened. Once you rewrite the Bill of Rights, every speculative exception becomes ephemeral just waiting for the next Court to say, “yeah, but not THAT regulation.”

It’s just like how the Carson v. Makin opinion took the relatively reasonable plurality in Trinity Lutheranholding that government funds may flow to religious schools if used for generally applicable non-religious uses, and junked all those caveats to use it as the precedent requiring that public taxpayer funds must flow to religious schools. The plurality in Trinity Lutheran thought the carefully balanced halfway point would become guiding precedent setting both a ceiling and a floor to the rights involved.

Instead, it was a speed bump.

That’s the thing — this Court doesn’t see half-measure opinions as precedent: the implied extreme position is the only part that’s binding. Everything else is dicta to be wiped away at the earliest convenience.

So Alito rages that the dissent is overreading what the Court “actually” decided, insulting the intelligence of anyone familiar with the Supreme Court.

The Supreme Court is just a game of constitutional Telephone: Trinity Lutheran is just about clearing away the Establishment complaint to giving public funds to religious schools, and that’s now magically the precedent for finding a Free Exercise complaint to not giving public funds to religious schools, and the next case will find a Free Exercise complaint to making taxpayers fund public schools in the first place. One case begets the other while justices go, “Who, Me?” Always they nudge the narrative forward.

Heller is just about guns in the home… don’t worry, you can still regulate everything else. Oh, sorry, Bruen is just about concealed guns in public… don’t worry, you can still regulate everything else. And on and on as the market floods with guns and people get killed.

Text doesn’t matter, intent doesn’t matter, original public understanding doesn’t matter, precedent doesn’t matter — it’s far too difficult to contend with those — just take the “feels” you get from some prior opinion to advance the ball for the next one.

Which everyone from the justices to the advocates to the legislators seem to recognize except Shaw and Bash:

Justices don’t control the way their writings are interpreted by later courts and other institutions; certainly law clerks don’t. So we’re not asserting that our views on Heller are in any way authoritative. But we know the opinions in the case inside and out.

Later courts? The author of this opinion was ON that court! This isn’t some artifact being viewed through sepia tones, this is the direct-line continuation of the entirely transparent project.

But what they’re acknowledging in a roundabout way is that it is, in fact, all vibes. Maybe Bruen isn’t required by a strict reading of Heller. But who cares? Heller is more of a mood than a statement of considered law. No one walked out of Heller assuming it set a blueprint for future regulation, it listed possible regulations while casually waving a gun around and saying, “awful nice public safety regime you have here, shame if something happened to it.”

No one was “getting” Heller wrong. ”That’s why we have Bruen..


[1] Which, of course, is why there’s a cottage academic industry trying to “square peg / round hole” gun regulation into a new theory of originalism where the relevant “original” intent is the intent at the ratification of the Fourteenth Amendment. A theory that is, in other words, “how to be’originalist’ if the original public meaning conflicts with contemporary GOP policies.” This is what Justice Barrett’s concurrence is all about in case you’re wondering what fresh hell will dominate the next several decades when the conservative majority starts picking Mitch McConnell’s birthday as the trigger point for “original” public understanding or whatever.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter Joe also serves as a Managing Director at RPN Executive Search. if you’re interested in law, politics, and a healthy dose of college sports news.

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