20 Comments

While I generally support expansive interpretations of the Bill of Rights, I’ll also point out that it’s very easy to be blase about gun control when you live in a neighborhood where you are less likely to hear gunshots.

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Thomas is the most principled "conservative" (I hate that word) on the court, followed closely by Alito. The other Republican justices are quite wishy-washy, and in effect it's a 7-2 liberal court on decisions that matter, with the exception of gun control. This is the real reason why globohomo has targeted Thomas again so viciously on fake conflict of interest smears in the media.

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All this makes worry for the 1st amendment.

> But what about topics a little more heated, like guns? Judges have been squishier and far more willing to accept the government’s justifications that a given legal restrictions was “necessary”.

Nowadays, speech is also a heated topic.

Also the historical method is not so protective of speech. America only really got serious about the 1A in the 1960s.

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I'm no 2A expert, but the "historical tradition of firearm regulation" standard seems similar to the "deeply rooted in the nation's history" requirement for determining substantive due process rights established in Glucksberg. This makes sense. We don't want judges inventing new rights and we want our reading of the constitution to be stable over time. I'm not an originalist and its not the standard I would create, but it makes sense that its one Thomas prescribed.

The clearly discriminatory firearm laws from history you referenced couldn't survive an equal protections analysis. And their more arbitrary/awkward aspects should be winnowed out to have some intelligible principle to base firearm laws off of. I can imagine that future litigation would revolve around finding historical analogues for certain gun laws (like how 7th amendment litigation looks at what kind of suits were "at common law" during ye old England). But hopefully afterwards there will be a settled standard over what is considered constitutional gun regulation under 2A, as its legal framework doesn't yet seem as sophisticated as 1A.

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I was excited by the Bruen decision but reactionaries in the NY assembly passed the most restrictive gun restrictions in the country. “You want to carry a firearm? Here’s your permit, but practically the whole state is a gun-free zone, have a nice day.”

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TL;DR it's politics all the way down.

First the judge makes up his mind, then finds the justification.

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