In a stunningly broad and transformative decision, the Supreme Court has struck down the New York law that says you can only carry a concealed handgun outside your home if you can show you have “proper cause” to do so.
For gun rights more generally, the opinion is perhaps even more consequential. Decided 6-3 along pure ideological lines, the opinion by Justice Clarence Thomas astonishingly makes Second Amendment rights even more protected than all the other fundamental rights in the constitutional pantheon. It also applies historical analysis so narrowly and bizarrely that it calls into question the very practice.
In a separate concurrence joined by Chief Justice John Roberts, Justice Brett Kavanaugh insisted that some gun regulations might still be constitutional, including bans on gun possession by the mentally ill. Perhaps he was alluding to the bill currently in the Senate; perhaps not. In any case, Kavanaugh’s insistence that some gun regulation remains permissible tells you a lot about how far Thomas’s opinion went.
In all other cases, the court first asks if the right exists, then asks if there is an appropriate reason to abrogate the right based on a compelling or important government need. In gun cases, Thomas wrote, the only inquiry is whether there is a historical analogy to the current regulation deriving from the moments the Second Amendment was passed or the 14th amendment made applicable to the states.
The case, New York State Rifle & Pistol Association v. Bruen, is one for the history books. Historians are going to be trying to figure out how, at precisely the moment when the United States is facing an epidemic of mass shootings, the Supreme Court could be expanding citizens’ right to guns — and elevating its protection above that of other basic rights.
When juxtaposed with the court’s expected abortion decision, the Bruen case reveals a court that is contracting women’s right to control their bodies and choose not to bear children even as it expands the right to bear arms. Increasingly, this court appears to be the Thomas court, with the most conservative justice convincing the other conservatives to follow his lifelong practice of ignoring precedent and rejecting the idea that the real-world consequences of judicial decisions should matter to the courts.
To understand what’s so shocking about the broader implications of Bruen, you must first understand that, when courts decide the First Amendment or Fourteenth Amendment or other constitutional claim, they don’t just ask if a law or other state action violates the Constitution. That’s the first question, to be sure. But after asking that, the court always goes on to ask whether the government had a good enough reason to limit the right in this situation.
For the most highly protected rights, the court asks if the government has a compelling interest and has narrowly tailored its action to serving that interest. That is, the court asks if the ends of the government’s action are compelling and the means chosen are narrowly tailored to the ends. When it come to less protected rights, the government gets it easier: The court asks if the government’s interest is important and if the means are substantially related to the ends to the ends.
The most astonishing part of Thomas’s legal reasoning in the Bruen case is the assertion that, when it comes to the Second Amendment, there is no need to ask how important the right is; how compelling or important the government’s interest is; or how well the government’s means fit the end. Rather, the only question for the courts is whether a given gun regulation is “consistent with the nation’s historical tradition of gun regulation.”
This elevation of gun rights ahead of all other rights would be outrageous enough on its own. But the court then went on to apply its own historical test with a degree of outcome orientation I have rarely seen in any Supreme Court opinion.
In the past, the court had said that the right to bear arms was one “inherited from our English ancestors.” English legal tradition restricted the carrying of firearms in multiple ways. But Thomas said that English practice was in fact not relevant to assessing the New York law because he saw “little reason to think the Framers would have thought it applicable to the New World.” Such reasoning blatantly contradicts the whole idea that the right to bear arms was derived from English practice.
Three colonies (out of 13, so almost a quarter) restricted public carrying of firearms, indicating the framers themselves would have accepted some restrictions. Thomas rejected that historical evidence, too, saying that today, unlike in the 18th century, handguns are the “quintessential self-defense weapon.”
After the Constitution was ratified, many states either treated carrying weapons as a criminal offense or passed laws against the concealed carry of small weapons or required people to post a bond before carrying a gun in public. Thomas rejected all this evidence as irrelevant, too.
Finally, in the latter part of the 19th century, with westward expansion, still more localities banned public carry. Thomas said that the evidence of these “localized restrictions” could not “overcome an otherwise enduring American tradition permitting public carry.”
The upshot is that, having said that history is the only test of gun rights regulation, Thomas then systematically reread the historical record to render a long tradition of regulation legally irrelevant. It’s hard to read the opinion and take seriously the idea that history is really a guide at all for the six conservative justices.
Justice Stephen Breyer, joined by the court’s other two liberals, dissented. With his characteristic pragmatism, he pointed out rising gun violence and mass shooting. Breyer has spent his entire judicial career — and his career as a lawyer and professor before that — trying to make government and the law actually work to protect and promote the needs of the public. Seen from that lifelong perspective, the Bruen decision looks like a kind of madness.
Twisting the knife, Thomas actually challenged Breyer’s very reference to the real-world reality of gun violence. The anti-pragmatism of the conservative justices could hardly be more overt. If consequences don’t matter, there is no reason to ask about the government’s interest in protecting public safety.
As he nears retirement in the coming week or so, Breyer must be agonized by the rise of a court that considers putting its head in the sand to be good constitutional judgment.
More From Noah Feldman on the Supreme Court in Bloomberg Opinion:
• Supreme Court Makes Immigration Lockup Harder to Escape: Noah Feldman
• Supreme Court Has a Nasty Surprise in Store for Business: Noah Feldman
• Threat to Kavanaugh Will Irrevocably Change Justices’ Lives: Noah Feldman
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
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