It was bad enough when, last June, an activist Supreme Court majority that comically calls itself conservative invalidated a century-old New York law restricting the concealed carry of firearms. Now the same majority could use its so-called shadow docket to override a federal appeals court and shoot down the state law passed in its place — without even bothering to hear the state’s arguments on why the policies are consistent with the Second Amendment and the court’s precedents.
The high court’s Bruen decision struck down a statute that required gun permit applicants to show proper cause, or a special need for self-defense, in order to carry a gun in New York. Any restriction on the right to bear arms, Justice Clarence Thomas wrote, should be deemed presumably contrary to the Constitution’s text unless it passed a history test: “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
Talk about weaponizing history: That’s an impossible test for legislators and courts to apply with any clarity or consistency. There is no single American tradition — nor can justices honestly glean how and where the founders intended to restrict weapons far more powerful than any they could ever wield in a society that’s unrecognizable from their own.
The problem is clearest in looking at the Bruen opinion’s incoherence on what can and can’t be deemed a gun-free zone. Previous precedent clearly established that schools, hospitals and courthouses (including, ahem, the Supreme Court itself) can be deemed “sensitive places” where firearms are verboten. But subways? Playgrounds? Houses of worship? A people-packed Times Square?
In its post-Bruen rewrite of the gun law, New York understandably said all should be firearm-free. If the Supreme Court wants to deem that an overreach, it absolutely must hear arguments and then justify a refined standard that gives usable guidance to lawmakers.
Instead, zealots want the court to sweepingly invalidate the law now, using a standard that the federal appeals court “clearly and demonstrably erred.” Hell no.
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