You Know They Shoot Fast. Here’s the Other Thing They Do.

The other thing is the damage they do to a human body. This video features a ballistics test starting around 1:25 that shows what’s it like to get shot with one of these AR-15 type weapons compared to a pistol. What else do we need to know in order to make these things illegal?

“One of the Most Intellectually Dishonest and Poorly Argued Decisions in American Judicial History”

So writes Saul Cornell, professor of history at Fordham University and the author of “A Well-Regulated Militia: the Founding Fathers and the Origins of Gun Control in America”:

In a 6–3 decision …, the Supreme Court struck down New York’s century-old gun law against concealed carry on [June 23rd]. New Yorkers and residents of a handful of other states and the District of Columbia—which had more strictly regulated who can have a concealed-carry permit—must now accept the type of laws popular in Texas and other red states. The decision was hardly a surprise to court watchers, but the opinion is nonetheless troubling on many levels.

The fact that this opinion was written by Justice Clarence Thomas, an originalist so rigid in his thinking that Justice Antonin Scalia once used him as a foil to distinguish his respect for precedent—”I’m an originalist and a textualist, not a nut,” Scalia quipped— contrasting the burn-it-all-down approach favored by his laconic colleague. Thomas has long been a proponent of supersizing the Second Amendment and has argued—against strong statistical evidence—that lower courts were treating the Second Amendment as a second-class right.

Thomas and his fellow originalists have set out to analogize the Second Amendment to core free speech rights, a bizarre legal analogy with little foundation in either legal history or tradition. In fact, guns have generally been treated as a form of property under American law for more than three centuries, a fact that appears to have escaped the notice of Thomas and the court’s newest originalists despite their professed commitment to an interpretive approach that focuses on history, text, and tradition.

Ultimately, the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history. Indeed, with little sense of irony, Thomas even quotes Chief Justice Roger B. Taney’s infamous opinion in Dred Scott approvingly, not only treating it as good legal authority but suggesting that the author of the worst decision in American law understood the Second Amendment better than any other judicial figure in American history. Turning to Taney for judicial inspiration would have once ended a judge’s career, but the court’s new originalist majority appears most of the time to be making history by inventing it, instead of by interpreting the law.

The old originalism of Robert Bork and Chief Justice William Rehnquist sought to use history to constrain judicial discretion and activism. The new originalism favored by Thomas and his fellow originalists has embraced judicial activism on steroids. Indeed, the court’s current use of originalism more clearly resembles an act of ventriloquism in which old texts are pressed into the service of modern agendas with little regard to how they were read at the time they were written. The new originalism, including the Bruen decision, turns historical actors into little more than stage dummies for the justices to project their own modern values and ideas onto the past.

One of the most remarkable features of Justice Stephen Breyer’s trenchant dissent in Bruen is his frank assessment of the appalling quality of the history being pedaled by his colleagues. Calling out the justices for engaging in “law office history,” a degraded form of legal analysis that warps history to fit the desired ends favored by a judge or justice, is something scholars have criticized the courts—including the Supreme Court—for practicing with some frequency. Still, it is unprecedented for a serving justice to hurl this type of accusation at colleagues sitting on the bench, and Breyer did just that. It is hard to dispute Breyer’s characterization of his colleagues given that Bruen is an opinion filled with legal and historical errors that all cut in the same direction, expanding gun rights by rewriting the American past.

To illustrate the shocking and amateurish use of history in Bruen, one need only examine the way Thomas ignored and distorted the evidence of robust gun regulation during Reconstruction, the period of history that he and other originalists have claimed is the key to understanding the scope of legitimate gun regulation by states and localities. Thomas reluctantly conceded that Reconstruction-era Texas had laws of similar scope to New York’s challenged laws. Yes, once upon a time Texas led the nation in enacting strong gun regulation!

Thomas, though, falsely claimed Texas was an outlier and, hence, that its evidence could be discarded. Similarly, Thomas discounts strong gun regulations in the Western United States because these too were unrepresentative outliers. In the Thomas originalist universe, apparently no amount of evidence is enough to support gun control, but no amount of evidence is too little to legitimate gun rights claims. In fact, millions of Americans were living with gun laws at least as restrictive as the New York law at issue in Bruen for many years during the period of history Thomas contends is crucial to understanding the application of the Second Amendment to states and localities.

Just looking at the history of firearms law in nation’s largest cities undermine the central claim in Bruen. As the table below shows, all of the nation’s largest cities were living under some form of restrictive public carry regime by the end of the 19th century. Many of these laws were enacted during Reconstruction, or soon after. Thomas not only ignores this evidence, but he also ignores recent scholarship showing that these laws were enforced in a racially neutral fashion for decades before white supremacists turned them against Black people.


Unfortunately, Bruen’s level of intellectual dishonesty and ignorance of basic legal historical method and well established facts easily located in readily accessible sources further undermines the legitimacy of the court at a moment when it can ill afford any further erosion in its standing. Bruen may be a victory for gun rights advocates, but it is another example of a court in serious intellectual and moral decline.

They’re Not Even Trying To Be Consistent. Or Honest. Or Historically Accurate.

Texas can regulate abortion but New Jersey can’t regulate guns.

And lying to Congress is a crime:


By the way (from historian J. M. Opal):

The 2nd Amendment, ratified in 1791, 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.” Responsible readings of this sentence note that it locates gun rights within the framework of militia service, not as an individual entitlement. By contrast, the 5th Amendment, ratified the same year, says that “No person” shall be denied due process.

Militias aside, there is also the “keep and bear” part of the 2nd Amendment to consider. In the founders’ era, to “keep” meant to own and possess something inside one’s home, while “bear arms” referred specifically to shouldering a musket or rifle in an army or militia.

Nowhere does the amendment declare or suggest a right to “go armed,” the term used in that era for carrying a weapon such as a pistol or dagger, either openly or in secret.

According to a Majority of the Supreme Court, the Earps and Doc Holliday Were the Bad Guys at the O.K. Corral

The Smithsonian Magazine offers a brief history lesson regarding gun control:

Marshall Virgil Earp, having deputized his brothers Wyatt and Morgan and his pal Doc Holliday, is having a gun control problem. Long-running tensions between the lawmen and a faction of cowboys … will come to a head over Tombstone’s gun law.

The laws of Tombstone at the time required visitors, upon entering town to disarm, either at a hotel or a lawman’s office. Residents of many famed cattle towns, such as Dodge City, Abilene, and Deadwood, had similar restrictions. But these cowboys had no intention of doing so as they strolled around town with Colt revolvers and Winchester rifles in plain sight…

When the Earps and Holliday met the cowboys on Fremont Street in the early afternoon, Virgil once again called on them to disarm. Nobody knows who fired first….

The “Old West” conjures up all sorts of imagery, but broadly, the term is used to evoke life … in small frontier towns – such as Tombstone, Deadwood, Dodge City, or Abilene, to name a few. One thing these cities had in common: strict gun control laws.

… Frontier towns by and large prohibited the “carrying of dangerous weapons of any type, concealed or otherwise, by persons other than law enforcement officers.” Most established towns that restricted weapons had few, if any, killings in a given year.

But Justice Clarence Thomas and his reactionary colleagues have their own view of history. From Talking Points Memo:

Thomas, writing for the majority, slapped down New York’s 100-year-old concealed carry licensing scheme Thursday on the grounds that it has no historical analogue. [Wait, doesn’t a law that’s 100 years old have some history on its side?]

Government interest — like protecting the safety of its citizens — is not enough to get around the all-expansive Second Amendment, he writes. To be legitimate, a gun regulation must have a historical cousin….

The notion is farcical on its face: there must be some 18th or 19th century law mirroring any modern-day gun regulation, even for weapons that the people of that time could not have imagined existing?

Justice Breyer, joined by Justices Sotomayor and Kagan, focuses his dissent on the patent ludicrousness of determining constitutional rights solely through historical precedents.

“Will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” he ponders, before sketching out his argument that his conservative colleagues have done just that.

Breyer lays out his own list of cases ranging from English precursors to early American laws all the way up through U.S. law in the 20th century. He lists cases that he argues support New York’s licensing scheme, many of which the conservative majority found some reason to reject: “too old,” “too recent,” “did not last long enough,” “applied to too few people,” “enacted for the wrong reasons,” “based on a constitutional rationale that is now impossible to identify,” “not sufficiently analogous,” Breyer reels off.

“At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd,” he writes….

[This decision] rings similar to Justice Samuel Alito’s draft opinion overturning abortion rights, which roots much of its argument in cases where abortion access was not protected in the country’s earliest days, and before. He asks [Americans] to unflinchingly accept that a constitutional right for women is only valid if it existed in a time when women were considered much less than full citizens.

To sum up, David Roberts on Twitter:

[The Supreme Court] is just going to keep doing stuff like this, worse & worse & worse….A tiny group of hyper-ideologues, forcing the rest of us to live medievally. That’s the current status quo trajectory….

“Neither the broad American public nor the center-left Democratic & media establishment understands or appreciates how [fucking] lunatic the right has gotten” is something I’ve been saying for two decades now. Was always true & still is.

A Few Immediate Reactions to Our Renegade Right-Wing Supreme Court’s Latest Dictate

From Mark Joseph Stern of Slate:

The Supreme Court’s fourth and final opinion of the day is in Bruen. In a 6–3 opinion, [Clarence] Thomas writes that New York’s strict limits on the concealed carry of firearms in public violates the Second Amendment.

Thomas’ opinion for the court dramatically expands the scope of the Second Amendment, blasting past ostensible restrictions laid out in Heller to establish a new test that will render many, many more gun control laws unconstitutional.

Before today, about 83 million people—about one in every four Americans—lived in a state that strictly limited concealed carry to those who had a heightened need for self-defense. Now, zero people live in such a state.

Thomas’ opinion for the court suggests that judges may NOT consider empirical evidence about the dangers posed by firearms when evaluating gun control laws. They may only ask whether a modern regulation has some analogue that is rooted in American history.

It’s difficult to overstate how devastating Thomas’ opinion is for gun control laws. This goes so, so far beyond concealed carry. The Supreme Court has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.

From Paul Waldman of The Washington Post:

Just getting started reading the gun decision, but every sentence so far makes clear what a joke and a scam “originalism” is. It continues to amaze me that anyone takes it seriously.

It’s just one assertion after another about how what people thought in 1790 is sacrosanct, except when it isn’t, but also here’s a novel way to think about 1790, but also that doesn’t matter either. It’s Calvinball as legal reasoning. The bad faith is just incredible.

[Note: Calvinball is a game invented by Calvin and Hobbes. Calvinball has no rules; the players make up their own rules as they go along.]

From yours truly and Matt from the UK:

Isn’t the entire problem here that you’re paralysed by your constitution, because it makes the question into exegesis of this supposedly infallible document, rather than actually analysing the problem and considering what to do about it?

Excellent point. We are paralyzed by a document that’s 230 years old and difficult to amend. But we are also paralyzed by right-wing judges (i.e. politicians) who use this vague notion of “originalism” (what the founders intended) to justify their contemporary political beliefs.

Yes, but then ‘originalism’ is possible because of the written form. Without one, my country has no equivalent paralysis. Plenty of our own constitutional problems, of course, but they don’t really result in regular spree killings in schools.

Yes, having a written constitution is clearly a constraint, being old & difficult to amend adds to that basic constraint, and having a Supreme Court with too much power & too many political hacks issuing dictates makes it even worse. (My answer assumes there can be degrees of paralysis.)