June 23, 2022

SO I’VE READ/SKIMMED THE BRUEN OPINION, and it’s a big victory on the Second Amendment. It’s also the culmination of a multidecade litigation/advocacy strategy, which I’ll have more to say about later.

UPDATE: Just got interviewed by Nina Totenberg. I don’t think she liked my take much, but we’ll see how it comes out.

ANOTHER UPDATE: So a few more thoughts. First, I want to shout out to the late Don Kates, whose article in the Michigan Law Review, Handgun Prohibition and the Original Meaning of the Second Amendment was the rock that started this avalanche. And it’s awfully close to Justice Thomas’s opinion today. This has been a long campaign of scholarship, litigation, and advocacy and it has made a difference. Ideas do sometimes matter. The Court also cleared up the standard of review issue, making it plain that the Second Amendment isn’t a second-class right, and that strict scrutiny, not some kludged-up form of “intermediate scrutiny,” should apply.

Second, the direct impact of this decision isn’t as big as you’d think. It will make essentially no difference in the 43 states that have shall-issue carry now. Its immediate impact will be limitedto those may-issue states that make permits available at the discretion of the authorities. I found it hilarious that Eric Adams invoked the “the wild, wild West,” in response. I guess that means we’ll have gun-toting thugs shooting people on the streets of New York, and engaging in running gun battles on the subways. Oh, wait, that’s what New York has now.

The affected states will do their best to frustrate the impact of the opinion, of course — call it a campaign of “massive resistance” — which will only ensure more litigation. The lower courts have been notably unsympathetic to gun rights, most judges possessing as they do the values of the educated Gentry Class on social matters regardless of political affiliation, but this is a direct instruction from the Court to take gun rights seriously. I expect a few summary reversals of courts that try to dodge the decision’s import.

Third, the notion that “urban” areas should have different gun regimes than rural areas seems to be to be racially suspect. In the music business, “urban” is largely a synonym for “black,” and for most people “rural” is a synonym for white. The notion that black areas should have more restrictive gun regimes than white areas seems . . . problematic. (Not to say that people, like Justice Breyer, who employ this notion are necessarily themselves racist, only that they’re deploying a trope with troubling racial implications. Likewise talk of getting guns “off the streets.”) And we don’t generally treat constitutional rights differently based on locality; the Court sort of did that with obscenity for a while but largely gave it up, and with good reason.

Fourth, and don’t make too much of this, there’s the timing. Now that we’ve come to think of Roberts as a politician, I can’t help but wonder if he’s released this opinion, which will play well on the right, with an eye toward the Dobbs opinion. If it’s a retreat from the draft, maybe he thinks this will help him keep some respect on the right. On the other hand, if it were me and I were being political, I’d have released both opinions on the same day, so that the left would have trouble deciding what to be outraged about. I dunno, I’m not a great Supreme Court tea-leaf reader, and I don’t think many people are, but that’s the thought that crossed my mind.

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