I guess we should consider ourselves lucky that automobiles were not invented until the late 1800s and did not come into regular use in this country until the early 20th Century, otherwise the Supreme Court would be busy doing away with requirements for driver's licenses, auto registrations, and environmental regulations on exhaust emissions and gas mileage.
At least that would be true if the reasoning used by Justice Clarence Thomas in his decision in a landmark Second Amendment case was applied to cars, that any regulations of guns in this country must be "consistent with the Nation's historical tradition of firearm regulation." In the case, New York State Rifle & Pistol Association, Inc. v. Bruen, New York state held that a citizen must show a need to carry a firearm in order to obtain a firearms license. The Bruen decision, handed down last year, overturned the law, saying essentially that because at the time of the writing of the Second Amendment there were no laws requiring the licensing of firearms, no law could require such a license now.
Bam!
With one decision, Clarence Thomas threw out about 200 years of jurisprudence and laws that had been passed regulating guns in this country for reasons of, for example, public safety. Before the Thomas decision, if a state wanted to limit gun purchases to those over 21 years of age or forbid the ownership of firearms by people who had been convicted of domestic abuse or those who had a restraining order against them because they had threatened a domestic partner, then the state could pass those laws.
But not after Justice Thomas had his say, backed up by members of the same Republican-appointed Supreme Court majority that threw out Roe v Wade with its decision to allegedly return regulation of abortion to the states in Dobbs v Jackson Women's Health Organization. Soon after the Bruen decision, federal judges and courts of appeals around the country began to use Thomas' logic to throw out gun regulations that had existed for decades.
In February of this year, the Fifth Circuit Court of Appeals, the nation's most conservative appeals court by about a factor of two, threw out a Texas law that banned people who had domestic violence restraining orders against them from buying or owning guns. The case involved a man who had a restraining order against him for threatening and harassing his ex-girlfriend and their child. Because the girlfriend had established the man's previous threats and told the court issuing the restraining order that her former partner owned guns and might use them against her or the child, the restraining order included a ban on the man from owning guns. A previous appeals court had held that the state had an interest in banning people accused of domestic violence from owning guns because it was more important to protect the safety of those he was threatening than it was to protect his rights under the Second Amendment.
Using his Supreme Court robes to cloak his irrational and yes, insane reasoning, Thomas came up with a whole new interpretation of the Second Amendment even more extreme than the one written by his pal Antonin Scalia in District of Columbia v. Heller,
And then came Clarence Thomas and his "historical tradition of firearms regulation" gibberish. This time when the man appealed his ban on owning guns, the Fifth Circuit said that the federal law which was cited in the restraining order was "an outlier that our ancestors would never have accepted," and was thus unconstitutional, trumped (as it were) by the man's Second Amendment right to own firearms. That right, as Justice Thomas said in his Bruen decision, is not "a second class right," and is more important, according to the Fifth Circuit, than the safety of the woman and child the man threatened.
See where this is going? Using his Supreme Court robes to cloak his irrational and yes, insane reasoning, Thomas came up with a whole new interpretation of the Second Amendment even more extreme than the one written by his pal Antonin Scalia in District of Columbia v. Heller, which held that the Second Amendment protected an individual's right to own handguns in his own home for self-defense.
With Scalia's radical re-interpretation of the Second Amendment, Thomas and other right-wing federal judges and state legislatures were off and running. Texas recently passed a law allowing background checks to omit records of minors' mental health records, essentially opening the door to at least some people who had a record of mental illness to own guns. A Trump-appointed federal judge in Texas last year overturned a law banning people with felony convictions from buying guns, holding that the law was unconstitutional because the law failed to "align with this Nation's historical tradition." In other words, because there were no laws against convicted felons owning guns at the time of passage of the Second Amendment in 1791, then you can't have a law preventing convicted felons from owning guns today.
No matter that the gun a convicted felon might own in 1791 was a single-shot muzzle-loading musket or a flintlock pistol, while today's convicted felon might want to own a semiautomatic AR-15 rifle capable of firing 30 bullets in three seconds, or a Barrett M82 .50 caliber rifle capable of firing armor-piercing bullets that can penetrate an automobile engine block or the protections afforded by an armored car. If there weren't firearms laws in 1791, then there shouldn't be firearms laws in 2023.
This week, yet another Republican-appointed judge, Robert Payne, sitting in Richmond, Va., flipped through the pages of the Thomas decision in Bruen and found the same logic could be applied to a Virginia law forbidding the sale of handguns to persons between the ages of 18 and 20. Payne wrote that he failed to find "any evidence of age-based restrictions on the purchase or sale of firearms from the colonial era, Founding or Early Republic… [and] because the statutes and regulations in question are not consistent with our Nation's history and tradition, they, therefore, cannot stand."
"Not only are guns the leading cause of death for U.S. kids and teens, but research shows us that 18- to-20 year-olds commit gun homicides at triple the rate of adults 21 years and older," Janet Carter, senior director of issues and appeals at Everytown Law, told the Washington Post this week. According to Thomas' Bruen opinion, "constitutional rights are enshrined with the scope they were understood to have when the people adopted them." So when a small group of wealthy, white, members of the land-owning gentry saw fit to write an amendment into the Constitution which for the first couple of centuries of this country's history was interpreted primarily to relate to the establishment of "well regulated militias" and only secondarily to ownership of firearms by individual citizens, they're the ones we have to listen to, according to Justice Thomas and the lesser defenders of gun rights among the judiciary who serve under him.
Who knew it would come to this? That we must not only listen to these old white men, but we also have to write our laws to comport with the laws they lived by at the time they sat down together in Philadelphia to join states into the Union and carve up rights among its citizens? Hell, if the United States hadn't ratified the 19th Amendment to the Constitution in 1920, Thomas and his pals on the court would be finding state laws giving women the right to vote unconstitutional because the founders hadn't seen fit to let women vote in 1791. It took a Civil War to correct the failure of those founding geniuses to ban slavery, and even still, this country has not passed the Equal Rights Amendment that would guarantee full, equal rights under the Constitution to those among us whose gender happens to be female.
Reading what we might call the descendants of Justice Thomas' Bruen decision, I was going to say that I don't know where this is going, and then I realized that we're already there. The madness of gun violence in this country, including mass killings, murders, and suicides is seemingly with us to stay. Despite the fact that the semiautomatic AR-15 rifle has been used in practically every mass killing in the last decade, neither the federal government nor state legislatures have seen fit to ban it, and now we know they have a good reason to sit on their hands. Justice Thomas has decided that because there were no bans on AR-15s in 1791, there can't be any bans on that weapon of war today.
We're over the cliff and into the deep gorge of irrationality, folks, and it's killing more and more of us every day, many of them young children and even babies, as we saw in the viral video from the mass killing in Allen, Texas last Saturday. We're going to have to ask for help from a higher power, because we're sure as hell not going to get any from the Supreme Court.
