The Radicalism of NY State Rifle & Pistol v. Bruen

New Yorkers have as much right to interpret the Second Amendment as Justice Thomas does.

I can’t say I’m surprised, given that the decision was authored by Justice Clarence Thomas, the most right-wing but least conservative Justice on the Court, but the decision in New York State Rifle & Pistol Association, Inc. v. Bruen is breathtakingly radical, in multiple ways. It’s worth delineating just how.

First of all, there’s the question of whether the Constitution creates an individual right to bear arms for personal self-defense at all. That it does was established with Heller, so Thomas’s decision here cannot be called radical on that account, but it’s worth rehashing just how questionable that decision was, particularly from an originalist perspective. The text of the Second Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

To make this an individual right to bear arms for personal self-defense, you have to read out the first thirteen words of the Amendment entirely (since they expressly state that its purpose is related to collective and not individual defense), to misconstrue the phrase “the people” as something contrary to what it plainly is, a collective noun, and to misunderstand “bear arms” as carrying weapons in any context when it properly refers to carrying weapons in a military or paramilitary context. “Shall not be infringed” is indeed strong language, and the text does not limit itself to binding Congress, both of which are valid reasons to pay close attention to this right. But if you are interested in a plain reading of the text, which Thomas professes himself to be, that plain reading is that the government may not prevent the citizenry as a whole from forming a militia and bearing arms in that capacity. It has essentially nothing to do with an individual right to self-defense.

In all of the above I’m following Akhil Reed Amar’s persuasive small-r republican reading of the Amendment. You can claim, as Akhil Reed Amar does, that the context of the post-Civil War amendments changed the meaning of the Second Amendment along with much of the rest of the Bill of Rights. Thomas himself relies in part on the 14th Amendment in his opinion. I see nothing wrong with that kind of evolving understanding of the constitution’s text—I favor the flexibility of that kind of jurisprudence—which is characteristic of the way the Court has treated other enumerated rights. But I do think it’s worth calling Thomas out for posturing as an originalist when his conception of the original meaning is so highly contested.

Grant, though, that there is some kind of individual right at issue here, and that we need to look beyond the era of the amendment’s authorship to understand what constitutes that right today. In that case, one would presumably look to the history of state and local regulation to determine how “the people” understand that right. Maybe a novel regulation imposing previously unheard-of restrictions does deserve closer scrutiny. But there is a robust history of gun regulation in the United States, and New York has had severe restrictions on the right to carry a concealed weapon for over a century, as Thomas himself acknowledges. He then dismisses this as historical evidence for how guns may be regulated because, well, because most other states are more liberal than New York is, so New Yorkers had better conform to the preferences of the citizens of Florida and Ohio. So much for federalism. Entirely on his own recognizances, Thomas decided that New York’s hundred years of gun regulation were always contrary to the proper understanding of the Second Amendment because most other states have more liberal gun laws today.

From where I sit, this is exactly the same as the Court deciding to throw out laws restricting contraception in Griswold v. Connecticut or laws prohibiting sodomy in Lawrence v. Texas that conservatives used to hold up as prime examples of judicial lawmaking and overreach. The big difference is that in the case of guns there is a clear, manifest public interest at issue, whereas in the others that case was debatable to say the least, which is why in Lawrence the Court struck down the laws in question essentially for lacking a rational basis. (Even if you believe the state has an interest in regulating sex that justifies the infringement on individual liberty, it’s not the slam dunk of “guns need to be regulated for public safety because guns are used to kill people.” And, just to be further clear, I’m not saying any given gun regulation is a slam dunk or even a good idea; I’m just saying that there is an obvious public interest at play—because there is.)

Precisely because that public interest is so obvious, Thomas—in what I would argue is his most radical move—rejects any kind of balancing test or tiered scrutiny in considering gun regulation, which frees him from needing to consider that interest. These kinds of tests are entirely commonplace in dealing with a host of other rights, including equal protection, and I understand why judicial conservatives are unnerved by them, since they seem to be making up the law as one goes along. But the alternative is to get out of the business of strict scrutiny and show greater deference to the legislature. Thomas, instead, has effectively decided that guns are special:

Sean T at RCP @SeanTrende

That's the most radical opinion of the day, by far. Not the holding, but the reasoning, which eschews the sundry tests that characterize other rights and just asks "What did the amendment mean when passed?"

Varad Mehta @varadmehta

If I'm reading it correctly, SCOTUS just blew up the traditional levels of scrutiny analysis as it applies to gun laws and regulations.

Given that, a better point of comparison would probably be Lochner v. New York where the Court simply declared that the constitution inflexibly prohibited the people from regulating economic transactions in a variety of ways, a matter of manifest and pressing collective interest. This is a view of the constitution that is plainly and directly incompatible with the ideal of democratic self-government.

And that’s the heart of the radicalism of this decision. The people of the state of New York have every right to interpret the Second Amendment—as much right as Justice Clarence Thomas does. They’ve been doing so for a hundred years in a manner that happens to run contrary to Thomas’s preferences. If the Court is going to overrule them, it needs a better reason than “I know what this text means and you don’t.” I’m a consistent advocate of judicial modesty and deference because I’m both a small-d democrat and a temperamental conservative. (That’s one reason I’ve been consistently critical of Roe v. Wade in spite of the fact that I am generally opposed to legal restrictions on abortion rights.) That stance doesn’t imply that the judiciary has no role to play in our constitutional system—someone still needs to adjudicate between our different branches and levels of government and to uphold the integrity of the democratic process itself. Someone still needs to make sure that the law is applied fairly and consistently—and perhaps the New York law deserved to be struck down on narrower grounds on the basis that it was in practice corrupt or discriminatory. But to say that all we need to know about whether a law is constitutional is “did the framers ever pass a law like this?” is a kind of fundamentalism, and it is fundamentally incompatible with democracy.

I want to be very clear here. I’m not arguing that Thomas’s views about the Second Amendment, or the views of supporters of expansive gun rights on the importance of those rights, are necessarily wrong. I disagree with them, sometimes strongly, but they are completely legitimate and worth engaging with on the merits. And those merits are not always what you might think. As Corey Robin has explicated so effectively in his book on Thomas, a signature aspect of his jurisprudence is that he reaches right-wing conclusions from the perspective of a Black man who grew up poor in the American South, who had no reason to expect the state would be on his side. When he imagines a man who needs a gun for self-defense, as likely as not it’s a Black man needing to protect himself from the Klan’s terrorists, or a Black business-owner in an under-policed needing to protect his life and property from violent criminals carrying illegal guns. Black gun-rights groups joined the suit for a reason, and it’s a perspective that deserves a respectful hearing.

But it deserves that hearing primarily in the legislature. Black New Yorkers, unlike Black Americans of the Jim Crow South, have the vote—and they use it. They are, in fact, one of if not the most important Democratic voting blocs out there. Thomas has no business speaking for them when they can speak for themselves.