Said lawprof Adam Winkler, author of “Gunfight: The Battle Over the Right to Bear Arms in America,” quoted in "The Historical Cherry-Picking at the Heart of the Supreme Court’s Gun-Rights Expansion/A century-old New York law requiring individuals to prove “proper cause” to carry a handgun has been struck down. Are other gun-safety measures in peril?" (The New Yorker).
June 24, 2022
"The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses..."
"... all of the historical precedents for heavy restrictions on concealed-carry laws as outliers. The Court says that it is going to look to history, but dismisses early English common law as too old. The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young. The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention. So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like."
Said lawprof Adam Winkler, author of “Gunfight: The Battle Over the Right to Bear Arms in America,” quoted in "The Historical Cherry-Picking at the Heart of the Supreme Court’s Gun-Rights Expansion/A century-old New York law requiring individuals to prove “proper cause” to carry a handgun has been struck down. Are other gun-safety measures in peril?" (The New Yorker).
Said lawprof Adam Winkler, author of “Gunfight: The Battle Over the Right to Bear Arms in America,” quoted in "The Historical Cherry-Picking at the Heart of the Supreme Court’s Gun-Rights Expansion/A century-old New York law requiring individuals to prove “proper cause” to carry a handgun has been struck down. Are other gun-safety measures in peril?" (The New Yorker).
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58 comments:
Here's your history! the right of the people to keep and bear Arms, shall not be infringed.
I mean it’s a cute argument (one we’ve recently seen somewhere before) this idea: if you make unconstitutional law and it sticks around an undetermined ‘long enough’ because it takes the rest of government a long time to get it’s shit together…well, that’s just as good as a constitutional amendment. Like I said, cute…
Recent history doesn't take precedence over what happened before. He's validating cherry-picking.
Sounds like. Reads like. The court just made a case for constitutional carry. The debate here should be interesting.
I always cringe at the arguments from history. Both the gun ruling and the Dodd leak use them as support, unfortunately. So much of what we know are just-so stories (or precedents). A good survey paper could then be reason to overturn a ruling if it was based on incorrect data.
I think there aren't enough rulings that give us awkward and uncomfortable consequences. The desire to contextualize rulings risks the law changing on the whims of society, instead of the intentional and clear methods of legislation.
Well, well, well. Let's take a look at the racist roots of 20th century gun control efforts. It was no accident that Justice Thomas wrote the opinion. Many anti-gun laws effective say "Dredd Scott was wrong, but functionally identical gun control laws are essential."
If racism is illegal, and if the 2nd Amendment has any meaning at all, then gun laws must be considered as subject to 20th Century race law standards too. Who is turning a blind eye?
Even lefty NPR talks about this:
https://www.npr.org/sections/codeswitch/2020/12/22/949169826/from-negro-militias-to-black-armament
I prefer cherry picking over lying. The president repeatedly lies about what arms could be possessed when the 2A was written. Not only that it’s still legal to own a cannon or make your own at home. Heller and McDonald clearly signaled “arms in common use” could not be proscribed. This ruling is such a clear rebuke to progressive overreach that it stings their pride but all the flowery lawprof verbiage can’t obscure the plain meaning of the second amendment. Stop lying and deal with reality.
We were also treated to FJB’s deep thoughts yesterday when he slandered the black conservative again saying that the opinion was poorly reasoned. Racist Joe is the heart of the democrat party.
Originalism was about determining the meaning of constitutional provisions, but the implications of this new traditionalism Justice Thomas has announced goes far beyond that. Will it only apply in second amendment cases? Or will it expand across the Court’s jurisprudence?
Only Roberts specified that shall issue was ok, right?
Will the Constitutional rule be that that state legislatures and Congress can’t pass new laws unless they are sufficiently like old laws? That’s a conservative wet dream.
In the article the professor who was interviewed repeatedly said there were examples of mid-18th century common law restrictions but he gives precisely zero examples of what these are.
No doubt my skepticism of a (likely) Ivy League professor makes me an enemy of the State or something.
"The Court says that it is going to look to history, but dismisses early English common law as too old."
...because it is too old, and was the law under monarchy?
Here's your history! the right of the people to keep and bear Arms, shall not be infringed.
============
if USA has reached level of saying only biologists can tell what is woman --- who can tell what is people?
"The president repeatedly lies about what arms could be possessed when the 2A was written."
How true. The arms referred to by the Framers not only include artillery but whole warships as well. Adam Winkler ought to look up the terms privateer and letters of marque and then study the naval history of the War of 1812.
Maybe the Althouse commentariat could form a corporation and buy one of those modern-day German u-boats and timeshare it. We could dock it in New Hampshire in the slip next to John "Oops I Barked a Shin Gimme a Purple Heart" Kerry's famous tax dodge.
so traditionalism >>>> hi, stare decisis - let me introduce reductio ad absurdum
Lawprof smarter and cleverer than SCOTUS.
The only lawprof I trust on constitutional law is professor emerita Ann Althouse.
Left Bank "...but the implications of this new traditionalism Justice Thomas has announced goes far beyond that."
No, it doesn't.
Try again.
Why are law professors still arguing this case? The case has been decided. Both sides were heard. One side was found wanting in its arguments. These very arguments being put forth by this third-tier Professor of Nobody.
This is now the law of our land. Period. End of case. End of debate. You lost. Move on.org
Harsanyi:
"The modern left doesn’t even bother pretending they believe the Supreme Court has a responsibility to act as a separate branch of government and adjudicate the constitutionality of law. Rather than even ostensibly offering legal reasons for their ire, Democrats simply demand the Supreme Court uphold public sentiment (or, rather what they claim is public sentiment), even though SCOTUS exists to ignore those pressures. The fact that that attitude has congealed as the norm in one of our major political parties does not bode well for the future of the Republic."
What a wretched argument Winkler makes. Was it generally against the law to carry concealed weapons in 18th century America, or not- answer that question first, Winkler? That is the only question that really matters here, isn't it? We don't go back to British law- we go back to what the people who wrote and passed the 2nd Amendment understood as acceptable gun regulations.
And his attack that the majority approved "shall issue" laws even though they are 20th century innovations is nonsensical- that is only approved here because the regulation basically requires the state to approve the right, not deny the right- the majority would have approved no regulation at all. It would be like a state passing a law that allows people to speak their own opinions at a public meeting- it isn't unconstitutional to pass such a law, just pointless given the 1st amendment. I mean- who does Winkler think he is fooling here with this sleight of hand argument? Only morons are convinced by Winkler here.
" Heller and McDonald clearly signaled “arms in common use” could not be proscribed."
Maybe someone should note how many AR platforms are out there. The left states the number as a reason to fear the gun. But it sure drops the AR into the common use bin.
In fact it's the most commonly sold rifle in America.
I was disappointed by this piece. I expected it to include a case by case analysis of laws that were or were not evaluated based on this person's analysis. I am not an expert on the history of gun laws so I hoped this person would provide the support for his opinion. That seems to be missing, so all I get is his unsupported opinion.
Also, are there any other rights in our constitution that are "mother may I" rights? What if you are on the stand and invoke your 5th amendment right. The prosecutor then asks you if you have a permit to do that. You say no. You applied for one in the past but were told you were nut under investigation and did not need it at the time so were denied.
Is free speech only allowed in the home? Do you need to apply for a permit to speak in a public venue? Is freedom of religion only allowed in the home unless you get a permit?
If the left hadn't kept pushing for more restrictions on gun ownership, this particular issue would have been less likely to come up for discussion.
There's a lesson in there somewhere, I think.
i find these leftwing legal arguements so boring. All the liberal/left judges and lawprofs are engaged lawfare. They are at war with the Center Right, and are using the law as a weapon. They don't give a damn what the actual law/constitution actually says or is historically taken to mean. its a means to an end. That's how we got Roe v. Wade.
All this blah, blah Pushback, just means this law prof likes Gun control, and wants the SCOTUS to give it their blessing.
Left Bank of the Charles: "Will the Constitutional rule be that that state legislatures and Congress can’t pass new laws unless they are sufficiently like old laws?"
Weird new "hot take".
Try again.
SCOTUS said the states/cities can still pass laws describing what kind of firearm can be owned and set up objective criteria was to who can NOT buy a firearm. What they cannot do is ban guns EXCEPT for a few people who meet their subjective criteria.
In Canada, according to Trudeau, you can only have a gun for hunting and target practice. That's what happens when you don't have a 2A. And a Republican SCOTUS.
Isn't this case is about abridging an individual's right after applying uniform, "constitutionally permissible" qualifications, which are supported by historical precedent?
Meanwhile, some "proper causes" are more equal than others.
Notice the insincerity of Winkler invoking "gun-safety measures" to elide the 14th Amendment issue raised.
"gun-safety": They keep using that word. I do not think it means what they think it means...
You peasants obsessing over your mythical "right" to self-defense get me so annoyed I come close to dropping my lorgnette and snuff box. The only "rights" you deplorables have is what we (your betters) let you have. I recommend you spend less time grousing and more time working. Those taxes aren't going to pay themselves
The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention.
Another example of Roberts' "just rule on the case at hand" philosophy in action.
Q: what is the point of lawfare if issues cannot be settled upto and by USSC?
how to explain demand for 'deference' at the same time disdain for disagreeable decisions
The concealed carry law of New York is not a "gun safety" measure, it is an anti-self-defense measure aimed at the poor, ethnic immigrants, people of color, and other marginalized groups. The purpose of the law was to prevent legal self defense using firearms by any but a select elite.
It sounds like another Bellisles story.
The main issue left to resolve is whether or not Bellisles was simply incompetent at conducting historical research or whether the book was an intentional fraud. Given how thorough the factual errors are in the book, it was difficult to believe Bellisles was not intentionally fraudulent.
The cherry picking is selecting a single state's gun law and claiming its passage is sufficient to override the Constitution. I could point out the 2nd and 4th Amendment are older than a century, but that is irrelevant to the matter at hand as is whether the state law was passed a century ago or yesterday. In short, it is sad that a law professor can only make arguments out of straw. Geez man, if you are going to base your argument on history and cherry picking rather than the construct of laws; then do better than to draw your line after the history of the Constitution. At least point to royal decrees that confiscated gun ownership prior to the Constitution.
nicely sequenced 2A b4 Dobbs
Yancy said,
"And his attack that the majority approved "shall issue" laws even though they are 20th century innovations is nonsensical- that is only approved here because the regulation basically requires the state to approve the right, not deny the right- the majority would have approved no regulation at all."
Which caused me to conclude the majority was edging awfully close to constitutional carry.
This decision will reduce crimes with guns. As Lott proved long ago (and keeps proving with updated data), more guns in law abiding citizens's hands results in less crime.
A clear victory for self-defense and civil rights.
One of the interesting things I discovered was that in the early days of the Massachusetts Colony, settlers were required to bring their muskets to church. Because the best time for Indians to launch a surprise attack would be when the people were gathered together to worship. so what does Illinois have? Illinois General Assembly - Bill Status for HB3499. Amends the Firearm Concealed Carry Act. Adds any building, real property, or parking area under the control of a church, synagogue, temple, mosque, or other place of worship, to the places where concealed carry of a firearm under the Act is prohibited. Just the opposite. Meanwhile in Texas in 2019 a 71 year old carrying took down a shotgun wielding killer during services with a single shot to the head. So which is correct- concealed carry should be allowed or prohibited in Churches and religious structures? Or is that a First Amendment issue that should be decided by the religious authorities in charge of those structures?
I searched the SC decision for the word militia. Appears 9 times. Never mentioned in this- or any other court decision I know of concerning who can and cannot be armed- what is the militia? 10 U.S. Code § 246 - Militia: composition and classes (a)The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. Why is this never brought up in court decisions? Quite frankly, it could be used to strike down any weapon restrictions, particularly the restrictions on fully automatic weapons which could be mail ordered by anyone until one day they couldn't be. Most states have similar militia definitions, some more expansive. Most- Wisconsin is an exception. So if everyone is a member of the militia, don't you want them to be familiar with the safe and accurate handling of the most terrible weapons of war? And the Democrats in Congress, along with a few traitorous Republicans, are currently pushing bills that would not allow anyone under 21 to possess or handle semi-automatic weapons. BTW- I haven't seen an exception written into these bills that says "Unless they're on active duty with the Armed Forces of the United States." As new laws, they would supersede old laws...
How bad is Wisconsin's militia definition? 321.30 Composition of national guard.
(1) The organized militia of this state shall be known as the “Wisconsin national guard" and shall consist of members commissioned or enlisted in accordance with federal law or regulations governing the national guard.
(2) The Wisconsin national guard shall consist of the army national guard and the air national guard. The most restrictive state militia definition of any state. However- Wisconsin residents and citizens are still members of the Federal militia- as was Kyle Rittenhouse when he dispatched criminals to their well deserved fates. Kyle was from Illinois, where the Constitution says The State militia consists of all able-bodied persons residing in the State except those exempted by law. The actual Illinois law conflicts with their Constitution- establishing an age of 18-45. Doesn't actually exempt those younger or older.
How about State constitutions and the Right to Bear Arms? From Wisconsin: Right to keep and bear arms. SECTION 25. The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. Kind of hard to bear arms for defense if you're prohibited from carrying them. Illinois? SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. "Subject only to the police power" is a rather problematical phrase. In short- there is no right to bear arms if we say so. New York is an outlier in this area much as Wisconsin is an outlier in it's militia definition. No New York Constitution has ever acknowledged the right to bear arms. My theory on this- New York was initially settled by the Dutch, not the English, and individual rights were not a big thing to the Dutch. And all the early officeholders and politicians in NY were Dutch. The Dutch were the primary slaveholders in New York.
I saw a photomeme yesterday that explains the second amendment more clearly than all the legal analyses.
A well tailored suit, being necessary to the sharp dressed man, the right of the people to keep and wear clothing shall not be infringed.
Who has the right to keep and wear clothing?
a) the well tailored suit
b) the people
c) no one
d) the police
Notice the insincerity of invoking "gun-safety measures."
First thing I noticed too. Goes along with "reproductive rights" for the right not to reproduce via ending the ongoing process of reproduction, and "right to choose" unless you choose actually to have a baby, in which case your only unequivocal right - in Oregon at least - appears to be to put yourself and your child, born or unborn, at risk from the Jane's Revenge people.
What "safety" do they believe is (or was) afforded? They used to own the term "gun control" without cavil; why are they shying away from it now?
The Constitution neither counsels nor sanctions minority report. Leave your scalpels at home. That said, carry your arms, responsibly, under the law (e.g. equal right to self-defense through reconciliation).
Gang bangers, drug dealers, armed robbers an hit men sighed in relief that they can now carry without showing "proper cause."
Now that leftist elites, Democrats and their pet mediaswine are unabashedly showing up fascist politically motivated gun control of the law abiding is no longer acceptable.
“Why are law professors still arguing this case? The case has been decided. Both sides were heard. One side was found wanting in its arguments. These very arguments being put forth by this third-tier Professor of Nobody.”
It’s time for them to retrench. Justice Thomas, as is his want, brings a howitzer to a gun fight. The carefully constructed stratagems by elite legal academia are a shambles as result. We saw this after Heller and McDonald, when they proceeded to construct an edifice that essentially replaced a toothless Intermediate Scrutiny for the Strict Scrutiny that the majority in Heller and McDonald had likely intended. Their interest weighting has no place in determining the extent of an enumerated fundamental Constitutional right, yet, this device was accepted by a number of the Circuits, most notably here, the Second Circuit. They are back in Square One, trying to impose gun grabbing by the elites (that they believe they are part of), after this loss, and the first academics finding a viable way around this decision are going to become famous among their peers.
@GoSpace - Heller effectively separated “militia” from the Right To Keep And Bear Arms (though I think, via Miller, that the Militia Clause retains vigor in protecting ownership of AR-15s). Here, we are talking self defense, and the Militia is irrelevant there. Justice Thomas made that clear here. That said, following Justice Thomas’ argument, legislation after enactment of the 2nd Amdt of what a Militia is, such as the cited US Statute, is irrelevant, since what is important is the definition from the time when the 2nd Amdt was enacted, and that was very soon after unofficial militias across MA, and from nearby colonies, came together in the spring of 1775 to repel British troops who had been dispatched to disarm them. They then went on the form the core of the Continental Army, that won us our independence. The same people, George Washington, the Adams cousins, Thomas Jefferson, etc were involved all the way through.
The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers.
1: The Court noted that in all but one case, States that outlawed concealed carry allowed open carry, and States that outlawed open carry allowed concealed
So yes, they dismissed one law as an outlier. Because it was, Being only one law in 100 years
Which this liar knows. Which is why he wrote "all" instead of "all 1"
The Court says that it is going to look to history, but dismisses early English common law as too old.
Wow, you mean if we're trying to determine what something meant int eh 1780s, we should look at what was happening in the 1780s and 1680s, and value that more than something that happened in the 1200's?
Again, this lying hack uses words "early" rather than the more informative numbers "1225".
The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young.
If you want to know what people in the 1860s thought the Amendment they passed meant, a law from the 1890s won't tell you that
They look at the relevant history for the question being asked. A law passed in 1890 pretty much tells us nothing about what the public though a Constitutional Amendment passed in the late 1860s that they were doing when they approved it.
Since the important question is "what was the original public understanding of the 2nd and 14th Amendments", what happened in 1890 or 1930 has essentially no relevance to answering that question
The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention.
Ok, I agree. We have to go to a strict Constitutional Carry system, and all gun laws should be struck down.
That make you happy? no? you WANT some limits?
Then rejoice that SCOTUS gave you more than you deserve
So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like.
Says the guy who simply ignored everything in the actual decision that he didn't like
TVOAT said...
I always cringe at the arguments from history. Both the gun ruling and the Dodd leak use them as support, unfortunately. So much of what we know are just-so stories (or precedents). A good survey paper could then be reason to overturn a ruling if it was based on incorrect data.
Oh, you mean like Roe? Don't worry, it;'s gone now
The joy of "original public understanding" is that it's based on a large number of sources, not just someone's diary. So while you can get liars like Michael A. Bellesiles trying to claim that "history acshully showed this", they're going to get caught pretty quickly now
So, you want to get rid of the history? Then kiss goodbye every single unenumerated right protected by the US Constitution. Because SCOTUS is not our ruler, and unless they have Constitutional justification for their rulings, they have no legitimacy at all.
Left Bank of the Charles said...
Originalism was about determining the meaning of constitutional provisions, but the implications of this new traditionalism Justice Thomas has announced goes far beyond that.
Really? Do tell.
Typical lefty bullshit: air claims with no reality behind them
Left Bank of the Charles said...
Will the Constitutional rule be that that state legislatures and Congress can’t pass new laws unless they are sufficiently like old laws?
Are you being intentionally stupid?
"the right to keep and bear arms shall not be infringed". You want to infringe it anyway? Well, then, you can only do so in ways that were done when those words were written.
"I have a liberty interest granted by the 14th Amendment to control my body, keep your laws off of me!"
Well, if the people who adopted the 14th Amendment didn't respect that "liberty interest", and they didn't explicitly mention it in the 14th, then they clearly couldn't have actually added it then.
In which case, until you get a Constitutional Amendment adding it, it's not there.
Which part of the above can't you understand?
Wa St Blogger said...
I was disappointed by this piece. I expected it to include a case by case analysis of laws that were or were not evaluated based on this person's analysis. I am not an expert on the history of gun laws so I hoped this person would provide the support for his opinion. That seems to be missing, so all I get is his unsupported opinion.
That's because such a recounting would destroy his opinion.
Go read the decision. They're all here:
https://www.supremecourt.gov/opinions/slipopinion/21
This one is R-54
I note in passing that the Thomas decision correctly describes the right of self defense as innate and pre-existing the Constitution's 2nd Amendment. The Constitution does not grant rights, it limits government infringement of pre-existing individual rights. Get that right.
Just for the record, once again, under the original meaning and intent of those who wrote and voted for the 2nd Amendment, it should be legal for any American citizen to privately own and operate a fully armed and crewed Ford class aircraft carrier.
The 2nd Amendment has never been amended.
Now out of state visitors to states like New York should apply for permits and challenge the denials. Our rights should follow us as we travel state to state.
Gahrie
And if I could afford one I'd have one. On the Great Lakes. Take that, Canada!
It's in the federal constitution and it's actually written down, not legislated in by a court opinion.
That matters.
My county won't issue permits because the fingerprint machine is broken if you want one. Check back in three months. Really, not kidding.
Maybe they need to be sued.
NotWhoIUsedtoBe said...
My county won't issue permits because the fingerprint machine is broken if you want one. Check back in three months. Really, not kidding.
Maybe they need to be sued.
There's no "maybe" about it. Contact the gun rights groups and find out if any of them are already suing
Rusty said...
Gahrie
And if I could afford one I'd have one. On the Great Lakes. Take that, Canada!
IIRC, by treaty no warships are allowed on the Great Lakes, because of a mutual disarmament pact between the US and Canada in the 1800s.
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