Supreme Court Paul Clement NYSRPA v. Bruen
This artist sketch depicts Paul Clement standing while arguing before the Supreme Court, in New York State Rifle & Pistol Association v. Bruen, Wednesday, Nov. 3, 2021, in Washington. (Dana Verkouteren via AP)

“[I]n requiring courts to strike down gun regulations even when they might be narrowly tailored to accomplish the most compelling of governmental interests,” Professor Khiara Bridges argues, Bruen “has rendered the right to bear arms the most protected of rights in the Constitution.” The Court’s hidebound historicism in the case significantly expands the Second Amendment’s scope. No matter how compelling the state’s interest, no matter how narrowly tailored its regulation, Bruen’s new method dictates that a modern gun law cannot stand without adequate grounding in the distant past.

Bruen continues in a long line of problematic cases anointing federal judges as historians. It dictates a historical test that lower courts must use, but leaves important, fundamental questions about the basic details unanswered. It requires that tentative, nuanced, and multifaceted interpretations of the past be flattened to notch narrow, short-term litigation victories today. It is a recipe for the kind of simmering chaos already stewing in the lower courts.

That should alarm Bruen’s defenders. After all, according to the Supreme Court, an “important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner.” Without significant refinement by the courts of appeals, and a uniformity among them that seems elusive, Bruen will continue proving unworkable in practice.

Even worse than its open texture, however, is the fact that the decision deems historical silence an important standard, without inquiring into the reason for legislative lacunae. With no justification, Bruen elevates mere unregulated conduct to the status of constitutional untouchability.

Justice Oliver Wendall Holmes once called it “revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV.” How much more disturbing, then, to discredit a rule of law because it was not laid down in a bygone era? Lower courts and legislators cannot cure Bruen’s defects, but they can adjudicate and legislate in a way that preserves some semblance of contemporary citizens’ authority to engage in self-defense through law.

Though Bruen frontloads fragments of history more than many other cases, it is not an isolated decision. History is often invoked selectively in the modern Supreme Court. The result of the historical turn in a host of recent cases is to accrete more power to the federal courts, with the Supreme Court firmly planted at the apex of American policymaking.

As Professor Mark Lemley recently described, whatever the tools it has used to reach its decisions in the most recent terms, “[t]he common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.” Professor Lemley’s conclusion suggests that Bruen’s indeterminacy may not be a complete oversight. After all, the more indeterminate the test, the more authority the Court retains to reach whatever conclusion it wants. But though the Supreme Court may desire to sit as a super-legislature over nationwide gun policy, lower courts, legislators, and citizens need not cede the people’s ultimate authority quietly.

— Jacob D. Charles in The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History

 

RELATED ARTICLESMORE FROM AUTHOR

145 COMMENTS

  1. That is the point of the constitution. Times change but your rights do not. The constitution is not a living document to be interpreted through a modern lens and made to fit the current year. if a right is a right, it does not change because that right was set in stone over 200 years ago. Bruen just set the record straight for all of the judges and people that had a hard time accepting that people have a constitutional right to keep and bear arms.

      • “RE: “but leaves important, fundamental questions about the basic details unanswered. It requires that tentative, nuanced, and multifaceted interpretations of the past be flattened to notch narrow, short-term litigation victories today. It is a recipe for the kind of simmering chaos already stewing in the lower courts.”

        Well wordsmith sister let’s cut the courtroom chaos and flatten the interpretations of the past down to defining Gun Control by its history confirmed roots in racism and genocide. Otherwise a sick turd agenda continues to receive standing history clearly says it does not deserve.

    • “[I]n requiring courts to strike down gun regulations even when they might be narrowly tailored to accomplish the most compelling of governmental interests,” Professor Khiara Bridges argues, Bruen “has rendered the right to bear arms the most protected of rights in the Constitution.”

      If government has an “interest” that is “compelling” to them, in regulating my handheld firearms that are EXPLICIITELY PROTECTED by the 2nd amendment, where it exactly says “Shall not be infringed” – then what isn’t within the bounds of their “compelling interest?” Everything is on the table apparently, and they are totalitarian in scope.

      And this is all of history’s solution to totalitarian regimes:

      http://media.gettyimages.com/photos/28th-april-1945-view-of-the-mutilated-bodies-of-benito-mussolini-and-picture-id3208670

      • We even got that pointed out in a constitutional law for educators class: when the government gets to define what a “compelling interest” is, then the authority of the courts has been shackled to the whims of legislators.

        At the same time, it would have been useful in the Bruen decision to have said that if a court finds the history unclear, then the standard to resort to would be the strictest scrutiny: that would leave little to no room for these whiners who think that legislatures should be more powerful than court or Constitution — because that’s what they’re really saying. To me they sound like spoiled children who want to leave their toys all over the house to play wherever they please instead of being limited to one room suitable for play.

    • “important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner.”

      “Shall not be infringed.” Seems an incredibly simple workable rule. I think it can be applied in a really consistent and predictable manner too!

    • “…Bruen “has rendered the right to bear arms the most protected of rights in the Constitution…” ”

      So, what’s the problem???

      I presume somehow finding wholly unspecified
      “Constitutional Cover” for various types of marriage, retroactive birth control and other activities, and, summarily declaring them to be the “Law of the Land”, to be followed at any cost, is more in line with the original realm of SCOTUS…

    • The right has /always/ existed. The Constitution enacts legal protections of those rights.

      All people in all nations at all times have the same (natural) rights. Yesterday, today, and tomorrow. That fact is indisputable and provable, and greatly misunderstood by a huge portion of humanity, including scholars, justices, legislators, executives, and plain old regular people.

    • Very well said, and it illustrates the fundamental flaw in Liberal Logic and their mistaken and misguided belief in the Constitution as a “Living, breathing Document.”

  2. “Professor Khiara Bridges argues, Bruen “has rendered the right to bear arms the most protected of rights in the Constitution.”

    They should all be protected equally.

      • “NO. there is the Bill of Rights. Then everything else.”

        Seems the commonly accepted historical timeline shows the Constitution was ratified first, then amended by the BOR.

        The authority for/of the BOR rests entirely in the Constitution itself. The BOR created no new “rights”, or powers.

        • The BOR™️ was appended to the original Constitution because some of the States refused to ratify the Constitution without it. It serves as a limitation of the central government vs the States and the People.

    • Muckraker, he is just crying because it is the 2A getting the attention. Were it any other amendment he would jump on the glory train. In short, just another attempt to whine about the second amendment. All these learned people seemingly unable to comprehend the second amendment is amazing, but of course there is the agenda they embrace so we should not expect less from them.

    • Next should be tightening the interpretation of the Fourth, Fifth, and Sixth Amendments so they’re interpreted as strictly as Bruen interprets the Second.

  3. The assertion that SCOTUS is trying to assert power seems grossly incorrect. My take is that the current crop of justices are attempting to undo activist judges of the past. Legislating from the bench is hopefully a thing of the past.

    • Exactly. Where were Charles’ and Bridges’ concerns about the Supreme Court “concentrating its power” when it was inventing new rights and overruling democratically implemented norms (such as state decisions not to recognize gay marriage)?

      Originalism / historicalism isn’t perfect (no philosophy of constitutional interpretation is), but it’s far preferable to baldly letting judges make it up based on their “feelz.”

      • Inventing the “right” to abortion…

        You can’t expect an honest conversation with the Left. All they understand is power.

        • “Inventing the “right” to abortion…”

          Did the SC actually “invent”?

          The justification used by the SC was tortured, twisted, and superficial; demonstrating a complete disregard of the 9th and 10th Amendments. (I think the SC, for generations, has been in fear of the power of the 9th and 10th Amenements)

          The Second Amendment grants no right, but prohibits the national government (including the Congress and the Courts) from interfering with RTKBA; the 9th and 10th Amendments put the central committee on notice that if there is no specific delegating of power from the then “States”, the national government, all of it, has no authority to legislate, regulate, or litigate regarding the rights/powers of “the people”.

          Thus, the right to abortion is inherent to “the people”, via their state governments. (No, I do not “support” abortion at all)

      • LKB–off topic, but in an earlier post, you mentioned looking for another barrel for your Dan Wesson 41 mag. Check with CZ-USA/Dan Wesson. I recently got another barrel from them for my 445. The shroud is styled a bit differently–no red insert in the front sight blade, and the 445 etching is different, but fits perfectly. They may use the same shroud, which also fits the 44 mag, but the barrel may be the problem if out of production. If you haven’t, send them an email.

      • I was hoping the Court would be smart on the marriage issue and rule that Congress has no authority over marriage in the first place, and that since marriage is inherently a question of freedom of association then if the government wishes to grant certain privileges to this form of free association then it must (1) use neutral language (i.e. nothing with religious overtones) and (2) merely recognize when two (or more?) people declare to the government that they have entered into this form of free association.
        But there are so many (and so tangled) laws concerning marriage the Court didn’t want to cause the chaos that would have ensued and reacted in cowardly fashion when they should have stated the above and given Congress six months to re-do the laws.

    • It won’t be. Legislating from the bench is a democrat historical pasttime. They love it. And if they don’t love it, then it’s time to threaten to expand the court.

  4. “Bruen’s new method dictates that a modern gun law cannot stand without adequate grounding in the distant past.” Says the would be tyrant who would never accept a limit on his ability to arrange letters on a glowing screen and send it off at more than five times the speed of the fastest bullet from an AR-15. No joke!

  5. WASHINGTON (AP) — A landmark U.S. Supreme Court decision on the Second Amendment is upending gun laws across the country, dividing judges and sowing confusion over what firearm restrictions can remain on the books.

    The high court’s ruling that set new standards for evaluating gun laws left open many questions, experts say, resulting in an increasing number of conflicting decisions as lower court judges struggle to figure out how to apply it.

    The Supreme Court’s so-called Bruen decision changed the test that lower courts had long used for evaluating challenges to firearm restrictions. Judges should no longer consider whether the law serves public interests like enhancing public safety, the justices said.

    Under the Supreme Court’s new test, the government that wants to uphold a gun restriction must look back into history to show it is consistent with the country’s “historical tradition of firearm regulation.”

  6. “[I]n requiring courts to strike down gun regulations even when they might be narrowly tailored to accomplish the most compelling of governmental interests”

    This guy starts off with a false premise and lie.

    It says (in part for the people) “the right of the people to keep and bear Arms, shall not be infringed”

    It does not say “the right of the people to keep and bear Arms, shall not be infringed unless the government has a compelling reason to infringe.”

    Bruen did not require courts to “to strike down gun regulations even when they might be narrowly tailored to accomplish the most compelling of governmental interests”. That’s a lie.

    Bruen got rid of interest balancing, basically telling the courts to use the real 2A as it was intended by text and history instead of the 2A the government wanted to use with their made up interpretation, because the government had shown they were not responsible enough to respect the peoples rights and their ‘compelling’ became outright tyranny and intentional infringement and oppression. Had the government been reasonable and respectful with and of the peoples rights instead of assuming they could just do what they wanted with what belonged to the people it would have been different. For years in the courts we (as in the gun community) asked nicely of the government ‘please do not trample on our rights’ and the government basically responded ‘we will do as we please and tell you what your rights are’.

    What Bruen did was as the framers of the constitution intended – tell the government “NO, you may not dictate to the people what their rights are.”

    • .40,

      It does not say “the right of the people to keep and bear Arms, shall not be infringed unless the government has a compelling reason to infringe.”

      Doesn’t the left remind you of a mob of spoiled, bratty, rioting children: “We want ice cream, we want ice cream and you can’t stop us. Nah, nah, na nah-nah”.

    • ” Judges should no longer consider whether the law serves public interests like enhancing public safety, the justices said.”

      That’s a lie too. Bruen nor the justices said that, they only said, basically, make sure you respect the rights of the people first. Like, for example, New York was doing what it wanted and it had no connection to “enhancing public safety” at all, they were making up reasons to do it too and making up reasons to intentionally restrict and infringe without regard for the peoples rights or public safety.

      • “Judges should no longer consider whether the law serves public interests like enhancing public safety, the justices said.””

        and not to forget that the law is also suppose to serve public interests like, for example, preserving and protecting the rights of the people and to not infringe them.

        • “[t]he common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.”

          Did you also say that on their decisions about the first or fourth amendment?

          SCOTUS did exactly what it was suppose to to with Bruen, interpret the constitution in favor of the people and preserving their rights.

          “Professor Khiara Bridges argues, Bruen ‘has rendered the right to bear arms the most protected of rights in the Constitution.’

          That’s another lie. Bruen simply bought the second amendment up to the level it was suppose to be with the first 10, to a first order right level instead of the most suppressed, oppressed, unprotected right in the first 10 by actions of government being able to exploit ‘interest balancing’ and ‘strict scrutiny’ they basically controlled in the courts making it a second class right essentially controlled by government by their permission and under their terms as they decided. In other words the 2A is a right too that deserves the same protection and consideration as the others, and that’s what Bruen did and it is false that SCOTUS “rendered the right to bear arms the most protected of rights in the Constitution.” – all it did was put it on par with the same protection level the others have.

      • I heard a talking head on the radio assert that Bruen was a bad ruling because “the Constitution is not a suicide pact”, claiming that due to Bruen the whole country would be like the “wild west”.
        Notwithstanding the fact that the “wild west” had less ‘gun violence’ per capita than the ‘enlightened’ east, the assertion is ludicrous: there are more than enough guns in the U.S. for the entire country to be like the O.K. Corral, but except for about 10% of the area of less than 2% of all U.S. counties it’s more like Little House on the Prairie.

  7. And yet my own state(among many!) violates Bruen daily. Andrew Jackson stated “SCOTUS has no army” when he illegally removed Indian’s to die on the Trail of Tears. They do NOW. Federal Marshall the EFF out of the evil Dimscum©🙄

    • I absolutely agree with you. I think that’s why federal Judge Stephen McGlynn ordered state defendants to provide “illustrative examples of each and every item banned” under state law.

      He said “the state has a tough row to hoe,” especially given recent U.S. Supreme Court precedent that cases regarding the Second Amendment must review text and tradition, not a balancing of state interest versus individual civil liberties.

      Judge Stephen McGlynn seems to be following Bruen 100%.

      “The Supreme Court’s so-called Bruen decision changed the test that lower courts had long used for evaluating challenges to firearm restrictions. Judges should no longer consider whether the law serves public interests like enhancing public safety, the justices said.”

      Make Illinois bring all of the guns and magazines banned by our Illinois bullshit law and put it to the Bruen test. Does the the law serves public interests like enhancing public safety?

      No, law dismissed as unconstitutional under Bruen.
      Kwame will take it all the way back to SCOTUS and they will take turns slapping him, Kwame the ambulance chaser. Amy Coney Barrett may slap him twice.

      • A state legislature has never had any difficulty finding that any given restriction “serves an important public purpose” of “safety” for the people. And in the ban states, this was all that was needed to uphold each and every gun law being litigated. ‘What the author ignores is that the Court held that the balancing test was performed by the Founding Fathers when they wrote the Second Amendment. It is beyond the power of the states to revisit that determination.

        • Same thing with trial by jury; lawyers have endeavored to make it “trial by legal professionals” because “the people” aren’t competent to understand the law, when that bit of balancing was already considered by the Framers — and one of the reasons that the jury was the power in a trial was to prevent laws the people can’t understand!
          Liberals love to talk about “checks and balances” while aiming to eliminate all of those that they find inconvenient.

  8. Bruen sets a precedent for all rights. Historically the right to arms, freedom of speech and freedom of religion are the most violated of all rights.

    instead of thinking the “gun lobby” is getting a special treat in Bruen, consider instead that a right usually urinated on is starting to be elevated where it should be. and that should inspire organizations working to guard 1st, 4th, 5th and 10th amendment rights.

    • Don’t forget the 6th; legislators have quietly and steadily eroded the right to face your accusers by resorting to the system from back when kings ruled by “divine right” that made every crime one against the king — they just make them all crimes against the state and claim that means the state is your accuser and they don’t even have to say who actually accused you.

  10. JDC’s essay evidences that he did not read the Bruen decision. His words are intended to instill fear and doubt. He takes the position that there is a looming conservative tyranny on the way. Yet, we all know that without free and fair elections, the tyranny of the left will continue to form a darker and darker cloud over this country, erasing the human rights enshrined in the US Constitution.

    What stands between us and the total abolition of our Constitution? Our firearms. Expect continued election theft. Expect all conservative justices to be replaced by anti-human, perverse, WEF sycophants. When that day comes, the meaning of the phrase “…behind every blade of grass…” will become clear.

    Or, Jesus might show up.

  11. There is a simple, ready-made solution to all the aches and pains of the anti-gun mafia: amend the Constitution.

    But that is too hard for those for which effort is required as a means of achievement.

    • That’s why liberals work so hard to get legislation from the bench. No accountability. They don’t have to put their votes on record and the justices do their dirty work for them. The newest Supreme Court Justice Brown has zero integrity and intentions of upholding the Constitution just like the other two idiots Sotomayor and Kagan

      • “They don’t have to put their votes on record and the justices do their dirty work for them.”

        Now, hold on there, son. I say, hold on there. Are you saying judges and justices are susceptible to politics?

      • “Sam, the really simple solution: Accept the 2nd Amendment as it is written.”

        Of course. But the anti-Constitutionals are trying to evade the Constitution, and cannot accept it as written; it must conform to the whims of the day, based on simple legislation.

        • Sam, that’s correct and their attitude shouldn’t surprise us since they support abortion for any reason which leads one to understand how they can also take little regard, if any, for the lives of “We the People”. As it has been written on TTAG, “my rights don’t end where your feelz begin”. Thanks for your comments, they are appreciated.

        • While making a speech on reproductive rights on Jan. 22, 2023, U.S. Vice President Kamala Harris mentioned “liberty” and “the pursuit of happiness,” but did not mention “life” when referring to the rights we are endowed with in the Declaration of Independence.

  13. If Bruen addressed the 1st, 4th, or 5th Amendments would we hear whinging from leftists or the governments?

  15. quote————-That should alarm Bruen’s defenders. After all, according to the Supreme Court, an “important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner.”————quote

    The Supreme Court is a fking joke in todays America. They speak of tradition of the past but ignore it at their own convenience when it crosses their radical jackbooted right wing mentality and stupidity.

    In Colonial America abortion was indeed allowed in many big cities and states and was allowed for over 50 years in modern times until the radical far right Trump appointed Supreme Court decided to outlaw it once again because it fit their right wing radical views that women should remain sex slaves. What is next with these nut cases, outlawing women the right to vote? I am sure they are considering it.

    The Bruen decision had to do with concealed carry, it had nothing to do with banning guns. The Court was playing politics and threw the far right and gun owners a bone and left it wide open to ban more guns or restrict them in the future. The Court has no intention of overturning prior gun bans and it will leave gun bans up to the lower courts and let them take all the heat because they know it is highly likely the lower courts will not dare to overturn the hundreds of gun and magazine bans that are now law in the various states.

    And as far as the wording of the Second Amendment, it was written as vaguely as possible so the courts or the government could ban or restrict weapons and that is exactly what they have been doing since 2A was originally passed.

    The Second Amendment main purpose from day 1 was to cajole the States to join the Federal Government. The carrot was to give them their own private armies to murder slaves if they revolted. It must be remembered the Haiti Slave revolt was going on at the time and it was feared even by Jefferson and Madison it might soon spread to the U.S. because white slave owners were fleeing Haiti with some of their slaves.

    It must be remembered that the disingenuous rhetoric of the Founders of the U.S. tried to hide the fact that they wanted absolute control over the troglodyte worker slaves. The Founders did not even give the people the right to vote so one can hardly believe they wanted them to have the right to own weapons without restrictions or outright bans. The 2A phrase “The right of the people to keep and bear arms” was smoke and mirrors to make the proletariat think they had the absolute right to own arms but this was anything but the truth and history has proven it beyond all doubt. The plethora of big city gun laws before the revolution were not rescinded and they increased almost from the day 2A was signed. This is history right in your face like it or not.

    The Bruen decision was a Supreme Court disastrous nightmare for them from day one and already has come back to haunt them and will in the near future prove what charlatans and hypocrites they really are when it not only comes to gun laws but all laws in the future. The criminal Court’s overturning of Roe v/s Wade was the first big outrage that shocked the American people and showed the people that their current court is a fking joke that pays no more attention to the Constitution that it would pay attention to a dead dog lying the street.

    • Delusional at best. But likely mad as a hatter.

      Requiring back ground checks and .gov permission to exercise a right gave the court all the rights it needed to step into the baby murder debate, dacian.

      In other words. You and miner in an effort to squash our rights made it legal for the court to step in.

      Thank you. Carry on.

      • the right of the people to have an abortion shall not be infringed?….think I must have missed that part…

        • “the right of the people to have an abortion shall not be infringed?….think I must have missed that part…”

          Two ways to evaluate the question.

          1. The 9th and 10th Amendments are pretty clear on listing all the rights/powers unlisted, but retained, by “the people” and the then States.

          2. If a life form is not life at conception, then between conception and an as yet undetermined point in time, then the fetus is property, and the Constitution protects property rights through the Fifth and Fourteenth Amendments’ Due Process Clauses and, more directly, through the Fifth Amendment’s Takings Clause.

          If the rights of “the people” to decide for themselves (via state representation) are retained by the 9th and 10th Amendments, abortion is decided at the state level, not federal.

          If the rights of “the people” to possess property are protected by the 5th and 14th Amendments, then the federal government has delegated authority to protect ownership of property from federal or state action.

          In Roe v. Wade, the SC did not settle the matter of when life begins. In June of 2022, the SC declared the federal government was never delegated authority to decide the right of abortion clearly retained by “the people” and the states.

          In short, the US Constitution creates no “rights”, nor does it list the exhaustive “rights” retained by “the people” and the states.

      • “But likely mad as a hatter.”

        Dacian, haven’t you stopped playing with mercury yet? Folks are getting suspicious…

    • dacian the delusional is back at it.

      dacian, the next time your mom takes the ball gag out of your mouth tell her you need to take your anti-psychotic meds.

    • Huffing paint at 9:30AM dacian?
      People can scream all they want but Bruen solidifies the second amendment.
      It gives lower courts guidelines to follow.
      “The Supreme Court is a fking joke in todays America.”
      Yes but you will conform to the decision made by SCOTUS, like it or not.
      “The Supreme Court’s so-called Bruen decision changed the test that lower courts had long used for evaluating challenges to firearm restrictions. Judges should no longer consider whether the law serves public interests like enhancing public safety, the justices said.”
      Enough of your nonsense, it’s like paying attention to your dead body lying the street.
      Ignore it and eventually it will decompose and cease to exist.

    • “In Colonial America abortion was indeed allowed in many big cities and states and was allowed for over 50 years in modern times until the radical far right Trump appointed Supreme Court decided to outlaw it once again because it fit their right wing radical views that women should remain sex slaves.”

      They didn’t outlaw anything you moron. The issue went back to the individual states, but then you already knew that didn’t you you disingenuous idiot.

      • He got to throw that into his babble.
        “Radical far right Trump appointed Supreme Court”
        He’s a troll that’s high and we all fall for his BS which isn’t worth reading.

        • (About resident troll ‘dacian’)

          “He’s a troll that’s high and we all fall for his BS which isn’t worth reading.”

          I *strongly* disagree Rob, and I’ll tell you why –

          He’s a ‘True Believer’ literal fascist. One of the very worst kind, one that *almost* sounds reasonable, at first blush. His commenting here does us a great service by exposing us to their lies that constantly change. Like how ‘gun control’ has somehow changed into the lie of ‘gun safety’.

          This gives us an outstanding opportunity to develop effective counter-arguments for use in our day-to-day lives. By reading others doing the same thing, we can hone our arguments into more effective ones.

          Rightfully hate the little shit all you want, but his presence here in TTAG is resource well-worth mining for all it’s worth… 🙂

      • to Muckhead

        quote———They didn’t outlaw anything———–quote

        Don’t make us all laugh. Peddle your far right disingenuous propaganda to the Unwashed. The Court knew that the radical jackbooted Red Hillbilly States would completely outlaw abortion and that is exactly what they did.

        What was even more tragic is that the majority of people in Red Hillbilly States did not want a ban on abortion, rather it was the Republican Jackbooted radical religious fanatics that were in power who went ahead anyway and outlawed a woman’s right to choose and did indeed turn all the women of the state into sex slaves.

        What is next in those red states? Will the criminals on the Supreme Court make it legal for red Hillbilly States to create a State Christian Caliphate outlawing all other religions. Don’t laugh they are thinking about it seriously.

        • “The Court knew that the radical jackbooted Red Hillbilly States would completely outlaw abortion and that is exactly what they did.” Which is their right duh mass. Elections have consequences said Obama.

    • The Supreme Court did not outlaw abortion. It turned the matter back to the states on the grounds that the federal government, including the Court itself, lacked the constitutional authority to regulate abortion.

      Had the Court actually outlawed abortion, their ruling would have meant that any state law permitting abortion is unconstitutional. While there are people who wish they would do just that, they didn’t. A number of states have passed laws guaranteeing access to abortion. I expect abortion foes to challenge these laws up to the Supreme Court. They will get a rude shock when the Court reminds them that their decision to overturn Roe v Wade goes both ways.

    • ” The Court has no intention of overturning prior gun bans and it will leave gun bans up to the lower courts and let them take all the heat because they know it is highly likely the lower courts will not dare to overturn the hundreds of gun and magazine bans that are now law in the various states.”

      You really are a very special kind of stupid.

      Re-read ‘Bruen’ with an emphasis on comprehension, you nattering nit-wit.

      The court no has to grant cert. to future gun cases dropped into its in-basket. All the court has to do stamp “GVR” on it, tell them to apply the ‘Bruen’ standard to it, and send it back.

      That’s the power of the GVR. The SCotUS no longer has to deal with such prattle…

    • “… the Second Amendment … was written as vaguely as possible so the courts or the government could ban or restrict weapons”

      The Second isn’t vague at all: the presence of the militia clause establishes that “the people” have the right to every instrument of war that the military does — and that’s a minimum, not a maximum.
      Most people like to pretend that the militia clause isn’t there, but it was included in order to establish just what kinds of arms the people have the right to keep and bear.

    • “In Colonial America abortion was indeed allowed in many big cities and states and was allowed for over 50 years in modern times until the radical far right Trump appointed Supreme Court decided to outlaw it once again”

      And that is exactly what the law is today. The Supreme Court did not outlaw abortion; it simply ruled that Abortion is to be regulated by the States which is what your statement above allowed.

    • Hilarious coming from a “BRITISH SUBJECT” who’s butt still hurts from over 200 years ago…

      It shows that you are a “ABSOLUTE MARXIST” foot soldier who wants to be a “LITTLE DICTATOR” and “DICTATE” to the “FREE PEOPLE”!!!

  16. “Though Bruen frontloads fragments of history more than many other cases, it is not an isolated decision. History is often invoked selectively in the modern Supreme Court.”

    Which, as I predicted from nearly Day 1 of Bruen, will ultimately lead to a proliferation of historical revisionists, who are still just NOW writing their propaganda that will soon be passed off in future cases as “history” used to justify further infringement of the Second Amendment.

    • “Which, as I predicted from nearly Day 1 of Bruen, will ultimately lead to a proliferation of historical revisionists, who are still just NOW writing their propaganda that will soon be passed off in future cases as “history” used to justify further infringement of the Second Amendment.”

      Exactly. One prime example is that supposedly-scholarly book a few years back that tried to claimed guns weren’t common in the Old West. Utter crap, since many of those civil war veterans immigrated west bringing the guns they used to fight the civil war west with them.

      Sometime in the future, it will be trotted out as ‘truth’ when in reality it’s far from it. But the author will be long dead of old age, and can’t be rebutted in person.

      Eternal vigilance will be required to keep our freedoms…

  17. “After all, the more indeterminate the test, the more authority the Court retains to reach whatever conclusion it wants. But though the Supreme Court may desire to sit as a super-legislature over nationwide gun policy, lower courts, legislators, and citizens need not cede the people’s ultimate authority quietly.”

    Good grief. Talk about projection. This is EXACTLY what liberals want with what they call a “living Constitution.” In the end, it’ll be so vague that anything can be argued to shoehorn almost any ridiculous law into the Bill of Rights. We saw this with abortion.

    As usual, liberal, thy name is hypocrite.

  18. The politicians are simply going to have to accept that the 2nd really means what it very clearly says.

      • In Illinois the state has to bring everything that was banned to court.
        The state has until Feb. 28 to respond.
        The Supreme Court’s so-called Bruen decision changed the test that lower courts had long used for evaluating challenges to firearm restrictions. Judges should no longer consider whether the law serves public interests like enhancing public safety, the justices said.
        Federal Judge Stephen McGlynn is following Bruen to the letter.

        • “In Illinois the state has to bring everything that was banned to court.”

          Am reading a number of differing opinions regarding what “everything” means. Some conclude that every screw, spring, model, attachment, modification, by every manufacturer, must be presented as “evidence”. Others conclude that only analogs (a braced pistol of any type satisfies the example of braced pistol as acceptable “evidence”) are required.

          “Judges should no longer consider whether the law serves public interests like enhancing public safety…”

          Agree. Judges/Justices should never ask, “What might a law mean”, or “What are the social impacts of the law enacted”. My long-time question is how would the courts react to a ratified amendment to the Constitution that abolishes the Supreme Court?

        • Do you think that the U.S. can get 75% of the states to add an amendment to the Constitution that abolishes the Supreme Court?
          I don’t.

        • Judge Stephen McGlynn made it clear, he wants EVERY gun and magazine banned to be produced in his courtroom by 2/28.

          If Illinois does not comply, he will toss the law out and perhaps charge Kwame Raoul with contempt.

        • “If Illinois does not comply, he will toss the law out and perhaps charge Kwame Raoul with contempt.”

          TTAG is gonna be *fun* to read when that decision drops…

          *snicker* 😉

    • In simple words what Officer Bill wrote is 100% correct.
      This is our ruling, now follow it or face the wrath of the Supreme Court.
      We are sick of messing around, this is the LAW.
      Learn it, Know It, Live It or else.

      • “If Illinois does not comply, he will toss the law out and perhaps charge Kwame Raoul with contempt.”

        POPCORN! EXTRA BUTTER PLZ!

    • “The politicians are simply going to have to accept that the 2nd really means what it very clearly says.”

      Until the current high court balance changes.

      Once Leftist Scum ™ seize control, most likely via court-packing, all bets are off, and they will most likely rule ‘Heller’, et. all are null and void. Our job will be to make them fear making such a move… 🙁

  20. DaVinci once said “Most men are of nought use except as machines for turning food into shit”
    Jacob D. Charles seem to confirm this!

  21. It’s really quite simple. If a law references private ownership or carriage of weapons or ammunition, even obliquely, that law violates the natural rights of the people, which are given specific protection from government interference in the second amendment.

    The correct standard of review for gun laws is what I call the “loaf of bread test”. If there is any difference between the purchase, ownership, or possession of a gun, vs the same for a loaf of bread, then the law violates the second amendment’s protections.

    • “If there is any difference between the purchase, ownership, or possession of a gun, vs the same for a loaf of bread, then the law violates the second amendment’s protections.”

      An attractive evaluation, but are all natural, human and civil rights absolute?

      Everyone has the natural, human and civil right to feed themselves, but not a constitutionally protected right to a specific food item; the latter is a “privilege”. Thus, everyone has a natural, human and civil right to self-defense, but not a constitutionally protected right to a specific tool; choice of tool is a privilege, not a right.

      • Sam?
        “everyone has a natural, human and civil right to self-defense, but not a constitutionally protected right to a specific tool; choice of tool is a privilege, not a right.
        Are you saying gov can dictate the tool used for self defense?

        • “Are you saying gov can dictate the tool used for self defense?”

          Not at all. Just pointing out that your attractive analysis might not hold up to using it as a justification for restrictions. Which is why I asked, “Are all natural, human and civil rights absolute? And the question is, itself, a call to examine core beliefs.

          The Second Amendment is not just a declaration the “the people” retain the RTKBA, but that government cannot starve the militia of the people by refusing to equip the militia (provide weapons of war), IAW the constitutional responsibility of the national government to provide weapons to the militia (Article 1, Sec 8, Clause 15)

      • “…but not a constitutionally protected right to a specific tool; choice of tool is a privilege, not a right.”

        Knowing you are a 2A absolutist, I may be misunderstanding you. “Arms” is a classification of tool, and everything within that classification is specifically protected by the Amendment as being necessary for the protection of the natural right that is recognized and protected by the Amendment. I see no sense of “privilege” in the text.

        • “I see no sense of “privilege” in the text.”

          The right to a tool doesn’t necessarily mean “any” tool (the proposition was that the right to eat doesn’t mean the right to eat whatever you like).

          Overall, the proposition was an exercise in pondering a specific justification for permitting “tools”, but not just any tool.

          Remember, the SC isn’t into absolutes. That court works hard to avoid reaching constitutional issues, preferring the easier route of determining how many angels can dance on the head of a pin.

          Bruen is interesting, but the ruling leaves room for vague exceptions.

        • Ok, I see your point, and thanks for the clarification, and I think you are correct about the vague exceptions.

      • ” Thus, everyone has a natural, human and civil right to self-defense, but not a constitutionally protected right to a specific tool; choice of tool is a privilege, not a right.”

        How is that not akin to saying that everyone has the right to free speech, but not to choose the words they use, or everyone has the right to freedom of religion but not to choose which religion they exercise?

        Besides which, the amendment sets a minimum for what the people can keep and bear, specifically whatever a professional military makes use of whether soldier or sailor or airman, or what could be militarily useful because it is equivalent to such arms.

    • “The correct standard of review for gun laws is what I call the “loaf of bread test”.”

      Very nice test!

      I hold to the same one for recreational drugs, but I have the “daffodil test”: if it can grow in your garden like daffodils do, it’s our right to have.

      • “How is that not akin to saying that everyone has the right to free speech, but not to choose the words they use, …”

        Speech, by its very nature, requires words, spoken, or written, or transmitted.

        Religion requires speech.

        Self-defense is not restricted to a single means of achieving the results.

  22. @Rob S
    “Do you think that the U.S. can get 75% of the states to add an amendment to the Constitution that abolishes the Supreme Court? I don’t.”

    Not a question of practicality; only a query as to whether the SC (or lower courts) would abide by the law as written (Constitution as written), or concern themselves with “impacts”. At the moment, the only way to address the query would be an analysis of all SC and lower court rulings on constitutional issues, and projection of the most likely outcome.

    • Don’t you think Illinois should be a good test case?
      If the lower court sides with Bruen then it’s a good start.

      • “Don’t you think Illinois should be a good test case then.”

        The whole of Cook County is a wonderful Petri Dish of human nature; one for which no single antidote can be effectively administered.

        • It’s the MRSA of counties, you’ll get no argument from me.
          Methicillin? Cook county says you will need much more then that.
          “You have MRSA and the same toe fungus that Brie Larson has.”
          Is it bad? Yes, you are going to die.

  23. “Justice Oliver Wendall Holmes once called it “revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV.” ”

    Note the lack of legal citation, or context for the statement. It comes not from an opinion regarding a specific case, but from a book,”The Path of the Law” (1897), where Holmes pontificated on a number of legal concepts, opinions, and history. The reader is supposed to believe that Holmes’ statement is carved into SC jurisprudence, via an issue before the SC.

    • Any current citation to Holmes (the eugenicist) is a tell to say the least that the person favorably citing to him is a “living constitutionalist.” In the line of Wilsonians who believed the mass of unwashed humans were too dumb to care for themselves, Holmes “knew better” than the rest and should, therefore, decide for the rest. Thus, the Constitution must “grow” and “adapt” to changing times and circumstances, and Holmes et al knew what the means. That whole era screwed up the Constitution. See Wickard v. Filburn, 317 US 111.

  24. It’s always wondrous when the left foams at the mouth and the collective hypertension makes their low IQ heads explode. VIVA BRUEN!

  25. Hmm… quoting Oliver Wendall Holmes in defense of the indefensible?

    Gee, now where have I seen THAT before…?

    Oh, right. “Judgement at Nuremberg”, wasn’t it? Leftists really never do change.

  26. I wish the author would explain how the Supreme Court is consolidating power to itself by arming hundreds of millions of Americans all of whom have competing interest.

    • “I wish the author would explain how the Supreme Court is consolidating power to itself….”

      Being a “super-legislature”, “overturning the whim of the people.”

    • I don’t believe they are trying to consolidate power. I think they are trying to reduce the number of 2A cases coming their way by giving the lower courts a ‘framework’ for deciding those cases. Maybe take some of the confusion out of these lower court rulings.

  28. @Hush
    “Thanks for your comments, they are appreciated.”

    Too kind. Always enjoy discussing with people not intent on flaming others, or those simply blurting talking points and/or inability to consider something outside the echo chamber.

    I may sometimes may be in error, but I am always Right.

  29. @Dude
    “…but did not mention “life” when referring to the rights we are endowed with in the Declaration of Independence.”

    That omission was intentional.

  30. “ requiring courts to strike down gun regulations even when they might be narrowly tailored to accomplish the most compelling of governmental interests”

    I’m not really sure why I should give a single damn about ‘governmental interests’ when they directly conflict with the interests and natural rights of the People.

    • “I’m not really sure why I should give a single damn about ‘governmental interests’ when they directly conflict with the interests and natural rights of the People.”

      Because peace and safety are more important than liberty?

  32. “[I]n requiring courts to strike down gun regulations even when they might be narrowly tailored to accomplish the most compelling of governmental interests,”

    The Bruen decision struck down a New York law that prohibited nearly anyone from carrying a gun. How does one construe that as “narrowly tailored”?

    Narrowly tailored would be something like: Citizens are prohibited from carrying firearms during judicial proceeding in which they, or their immediate family members, are directly involved.

    That is narrow – specific, uncommon conditions.

    Now, I don’t necessarily think there is *any* room in the 2A for infringements that might even meet my definition of “narrowly tailored” but, there is no way in hell that one can conclude that New York’s near universal prohibition of bearing arms was “narrow”.

    • “The Bruen decision struck down a New York law that prohibited nearly anyone from carrying a gun. How does one construe that as “narrowly tailored”?”

      According to them, anything to do with possessing and carrying of ‘guns’ in public is bad, and thinking like that is ‘common sense’, when in reality, it’s far from it.

      But, as a very evil man once said while in the process of murdering millions of people he didn’t like -“Repeat a lie often enough, it becomes truth”… 🙁

  35. @hawkeye
    “Back when blue books were still used for testing, I took a PoliSci class on judicial politics and the Supreme Court. IIRC, it was pretty lively back then–hate to see how it’s taught these days.”

    Thinking it may be loud, but with everyone agreeing US-bad, wouldn’t think of that conversation as being lively.

  36. @muckraker
    “Wasn’t my analysis Sam but I get your point.”

    Sometimes between martinis I lose my place in the paragraph that has not yet translated to the keyboard. Results can be a little discombobulated.

  39. These are the dissembling excuses, fallacies, and lies of a totalitarian kook:

    “No matter how compelling the state’s interest, no matter how narrowly tailored its regulation…”

    “Without significant refinement by the courts of appeals, and a uniformity among them that seems elusive, Bruen will continue proving unworkable in practice…”

    “How much more disturbing, then, to discredit a rule of law because it was not laid down in a bygone era?”

    All these subtle fallacies and attacks on the Bill of Rights and the 2A assume that what happens today for socialist aims is _better_ than the Founding Father’s wisdom.

    Today’s ideas of the statists are not better. They’re treason.

    • “Today’s ideas of the statists are not better. They’re treason.”

      Article III, Section 3, Clause 1:

      “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

      As we are fond of saying about the Second Amendment, “treason” is clearly defined in the Constitution. Note that the single element required before treason charges can be levied is “enemy”. And this is always a challenge because words do not make an entity an official enemy of the United States* (1st Amendment, and all that).

      *Ponder on the meaning of “Treason against the United States, shall consist only in levying War against them…” (vs. “it”).

  40. Instead of consolidating power, which the author purports, the court could be looking at reducing the number of similar cases coming before it. If you look at it, you have one lower court ruling one way, and another ruling on a similar case in the opposite way. These rulings by the Supreme Court could be an attempt to get all the courts on the ‘same page’ as it deals with 2A issues. This could potentially reduce the number of 2A cases coming before the court by setting out for ALL courts, a framework for ruling in 2A cases

  41. @Sumdumgoy
    “The BOR™️ was appended to the original Constitution because some of the States refused to ratify the Constitution without it.”

    The BOR did not/do not stand alone. Five States ratified the Constitution, before amendments were put forward (eventually, Madison proposed 12 amendments).

    It is the Constitution that is changed/modified/amended, not the BOR. All amendments to the base document require the Constitution to exist, first. Thus, it cannot be, “…there is the Bill of Rights. Then everything else.” “ There can only be a constitution as amended. No history supports a theory that the BOR is some sort of separate, parallel constitution.

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