“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.

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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.

At the Heartbreak Hotel on Desolation Row

Let’s consider the Supreme Court’s radical right Gang of Five. They’re trying to take America back to 1953 or so, if not earlier, ignoring what the majority of Americans want.

Three of them (Gorsuch, Kavanaugh and Coney Barrett) are the only three justices in US history who were both (1) selected by a president (D____ T____) who lost the popular vote and (2) approved by a group of senators who represented less than 50% of American voters. (That particular president took office only because the national news media was fixated on the email practices of the Democratic candidate and the director of the FBI broke his agency’s own rules by releasing “news” that harmed the Democrat a few days before the election.)

One (Gorsuch) took his seat on the Court after Senate Majority Leader Mitch McConnell blocked consideration of Barack Obama’s nominee, Merrick Garland, for a record 293 days, saying the upcoming election precluded any talk of a nominee.

McConnell got another one of them onto the Court (Coney Barrett) when he reversed the “rule” he’d invented for Garland. She was nominated by T____  just 38 days before the 2020 election (when votes were already being cast) — another record.

The fourth member of the Gang of Five (Alito) was nominated by a president (George W. Bush) who lost the popular vote the first time he ran. He might have also lost the Electoral College if the five Republicans on the Supreme Court had allowed Florida to keep counting votes (just think, President Gore would have meant leadership on the climate crisis and no Iraq war).

Alito is the author of the draft decision overturning Roe v. Wade, which he called an “egregiously bad” decision. He apparently came to that conclusion after his 2006 Senate hearing, during which he told the US Senate that he’d look at abortion with an “open mind”.

The fifth justice (Thomas, nominated by George. H. W. Bush) ascended to the Court after lying to the US Senate about his bad behavior (the senators didn’t believe Anita Hill). He was the first Supreme Court justice approved by senators from states representing less than half the country. Although his wife openly supported the January 6th insurrection, he proceeded to cast the only vote in favor of keeping insurrection-related emails secret.

All five of the Gang are Catholics, as is the sixth Republican on the Court (Chief Justice Roberts, the second justice chosen by Bush #2). None of them told the Senate they would overturn Roe v. Wade if given the chance.

Meanwhile, the Republican justices have been making our politics less democratic, less representative of the nation as a whole, by allowing more money into politics, weakening the Voting Rights Act and refusing to do anything about the rampant gerrymandering of congressional districts. All of this has made it less likely Democrats will be elected and much less likely that conservative institutions like the Court, the Senate and the Electoral College will ever be made more responsive to public opinion.

In other words, we’re screwed.

The American journalist Alex Pareene explains why, furthermore, electing more Democrats might not make much difference:

One of the more consequential contradictions of the Democratic Party is that the vast majority of its staffers, consultants, elected officials, and media avatars, along with a substantial portion of its electoral base, are institutionalists. They believe, broadly, in The System. The System worked for them, and if The System’s outputs are bad, it is because we need more of the right sort of people to join or be elected to enter The System. . . .

Institutionalists, in my experience, have trouble reaching an anti-system person, because they think being against The System is an inherently adolescent and silly mindset. But believing in things like “the integrity of the Supreme Court” has proven to be, I think, much sillier, and much more childish.

In the beginning of Joe Biden’s presidency a lot of very intelligent people tried to come up with ideas for how to change the Supreme Court, which is poised to spend years eroding the regulatory state and chipping away at civil rights. Expand it, perhaps. Or marginalize it. President Joe Biden, a committed institutionalist, formed a commission of legal scholars—from across the ideological spectrum, of course—to investigate what ought to be done about it. They failed to come up with any answers. “Lawmakers,” the commission wrote, “should be cautious about any reform that seems aimed at the substance of Court decisions or grounded in interpretations of the Constitution over which there is great disagreement in our political life.” You might be mad at the Court because of the decisions it produces, but it’s essential that everyone still trusts the processes that led to them.

This was a white flag. I think some people in the White House have some sick hope that the end of Roe will galvanize the midterm electorate. Something like that may indeed happen. But if they wish to understand why the president has been bleeding youth support for the last year they should try to imagine these young people (and “young”, at this point, has expanded to like 45) not as the annoying and hyper-engaged freaks they see on Twitter every day, but as ones they don’t see anywhere, because, having been urged to pay furious attention by people in the party, they discovered that those people had absolutely no realistic plans to overcome entrenched, systemic obstacles to progress. . . . 

The legitimacy crisis is that our institutions are illegitimate. For my entire adult life, beginning with Bush v. Gore, our governing institutions have been avowedly antidemocratic and the left-of-center party has had no answer for that plain fact; no strategy, no plan, except to beg the electorate to give them governing majorities, which they then fail to use to reform the antidemocratic governing institutions. They often have perfectly plausible excuses for why they couldn’t do better. But that commitment to our existing institutions means they can’t credibly claim to have an answer to this moment. “Give us (another) majority and hope Clarence Thomas dies” is a best-case scenario, but not exactly a sales pitch.

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PS: The Rittenhouse Case

Another observer, Kurt Eichenwald, makes a good point:

. . . the biggest villains here are the Kenosha police, who refused to protect protesters by treating right-wing, gun-toting civilians as adjuncts to law enforcement. THAT is where politics & white supremacy should be most condemned – it’s institutional and allowed the streets to be filled with thugs like Rittenhouse, whose mere presence created the potential for this. But the presence of these dangerous people was not a crime.

These Brief Words About the Rittenhouse Case Sound Right to Me

Seventeen-year-old Kyle Rittenhouse traveled to Kenosha, Wisconsin, last year with an AR-15 semi-automatic rifle, saying he wanted to protect private property. This was during unrest following an earlier incident in which a policeman repeatedly shot an unarmed black man. Confronted and pursued by demonstrators, Rittenhouse killed two and wounded another. He claimed his actions were self-defense.

Josh Marshall of Talking Points Memo responded to Rittenhouse being found not guilty:

A few thoughts on this verdict. It’s probably obvious I think it was a bad verdict. But I think we have to look more broadly at the result. People disagree. Juries make bad decisions. There’s nothing new about that. But what we have in the country right now are three factors.

One is highly permissive self-defense laws. In some cases, the statutes are okay but they’re interpreted too heavily or entirely in the defendant’s subjective perception of danger. In other “stand your ground”-type cases, they’re just bad laws. But the upshot is similar.

You also have a situation where any yahoo is now allowed to bring a high capacity firearm into an already tense or potentially violent situation. Usually they come with a chip on their shoulder or a political agenda. Then if they get scared they can start shooting.

It didn’t get a lot of attention but the judge essentially threw out the law that bars minors from open carrying in Wisconsin. So literally a kid can now show up with an AR to “help” and that’s okay.

Finally we live today in a very polarized, very divided society in which some people’s lives and inner experiences count a lot more than other people’s. You can say that that really means white people’s count more. And that’s generally right. But it’s not only that.

As long as murder is okay as long as you were feeling the right thing at the moment you killed the other person, that makes something as foundational as killing wildly subjective and makes the decisions jurors make too dependent on their own private definitions of good guys and bad guys.

None of these factors are new exactly. But together they create something genuinely new in this political moment. Add in the increasingly public acceptability of political violence on the American Right and you’ve got a powder keg confluence of factors that will make resorts to violence and general murder safaris not only more common, but also acceptable under the law.

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I’ll add two things. The first is that the extreme polarization in our society is the result of the right-wing’s descent into fantasy and authoritarianism. Countries with conservative political parties that are actually conservative, not insanely radical and not gun-crazy like the Republican Party, aren’t as polarized.

The second is that the judge dismissed the gun charge because the weapon Rittenhouse had wasn’t illegal, according to Wisconsin’s law. For whatever reason, “the law allows minors to possess shotguns and rifles as long as they’re not short-barreled. . . When [the prosecutor] acknowledged that Rittenhouse’s rifle’s barrel was longer than 16 inches, the minimum barrel length allowed under state law, [the judge] dismissed the charge (Associated Press). In other words, according to the letter of the law, it’s fine in Wisconsin for a minor to parade around with a dangerous weapon if its barrel is longer than 16 inches. The prosecutor could have appealed the judge’s decision, since it contradicted the spirit of the law, but didn’t bother. It wasn’t the prosecutor’s only mistake.

The More We Learn, the Worse It Looks

Wednesday could have been even worse. From The Guardian:

Two men who were seen carrying plastic “zip tie” handcuffs during the deadly riot at the US Capitol, suggesting plans to kidnap lawmakers in an attempt to overturn Txxxx’s election defeat, were arrested on Sunday. . . .

The news came as more graphic details of violence and brutality emerged. Before the arrests announced on Sunday, prosecutors had filed 17 cases in federal district court and 40 in District of Columbia superior court for offenses ranging from assaulting police officers to entering restricted areas, stealing federal property and threatening lawmakers.

Alarming footage of the riot continued to emerge. Some captured a bloodied officer crushed in a doorway and screaming. Other officers were reportedly beaten with pipes; one was seen tumbling over a railing into a crowd below. The officer had been body-slammed from behind.

Brian Sicknick, 42 and a 12-year veteran, died after he was struck in the head with a fire extinguisher while “physically engaging” the rioters, according to a statement from Capitol police. . . . 

Police arrested one man alleged to have brought guns and explosives to Washington; another was heavily armed and allegedly threatened to kill House speaker Nancy Pelosi. Chants of “Hang Mike Pence”, the vice-president, were heard during the riot. . . . 

Prosecutors said additional cases remained under seal and dozens were sought by federal agents. The US attorney in Washington vowed that “all options were on the table” for charges, including possibly sedition.

According to the Secretary of the Army, domestic terrorism cases are being opened. Among the items recovered on Wednesday were long guns, Molotov cocktails and other explosive devices.

The Washington Post reported that confrontations between the mob and members of Congress and Capitol staff were imminent:

A mob nearly breached the Speaker’s Lobby with access to the House Chamber while [representatives] and staff were sheltering inside;

There was a similar moment when a right turn instead of left would have taken another mob straight to the Senate chamber; 

Eight staffers huddled together under a table in a conference room, one door away from the terrorists rummaging through Nancy Pelosi’s office;

Behind another door, Senate aides heard a woman praying loudly for “the evil of Congress to be brought to an end”.

Maybe the mob simply wanted to discuss election security with their elected representatives.

A member of the Capitol Police told BuzzFeed that he heard about the coming assault in a message from a friend:

“I found out what they were planning when a friend of mine screenshot me an Instagram story from the Proud Boys saying, ‘We’re breaching the Capitol today, guys. I hope y’all ready.’”

That was a heavily trained group of militia terrorists that attacked us,” said the officer, who has been with the department for more than a decade. “They had radios, we found them, they had two-way communicators and earpieces. They had bear spray. They had flash bangs … They were prepared.

Tonight, CNN has a new video. Someone who’s watched it says it shows “a MAGA rioter (in white hat and backpack) grab a DC Metro officer and pull him down Capitol steps, where he is stomped and beaten with an American flag pole”. These are the “patriots” the president “loves”.

The story that’s slowly being told is that nobody who works for the federal government or the District of Columbia anticipated an attack on the Capitol. They supposedly thought there would be another demonstration, similar to the one on December 12th, during which nothing much happened until after dark, when a few roving bands of the president’s supporters turned violent. That would imply that no government departments were monitoring the discussions on social media and right-wing messages boards that featured detailed discussions of the impending attack (see this article from Pro Publica).Or that whoever is supposed to keep track of domestic terrorism didn’t take the threats seriously. Or that they purposefully kept information about the threat to themselves. The issue will be investigated and at least some of the truth will be revealed.

Meanwhile, Business Insider reports that there are foreign observers who think the lack of security on Wednesday indicates that this was an actual attempted coup by elements in the government:

Insider spoke with three [European] officials on Thursday morning: a French police official responsible for public security in . . . central Paris, and two intelligence officials from NATO countries who directly work in counterterrorism and counterintelligence operations . . . 

They said the circumstantial evidence available pointed to what would be openly called a coup attempt in any other nation. None were willing to speak on the record because of the dire nature of the subject.

While they did not furnish evidence that federal agency officials facilitated the chaos, . . .  America’s international military and security allies are now willing to give serious credence to the idea that [the president] deliberately tried to violently overturn an election and that some federal law-enforcement agents — by omission or otherwise — facilitated the attempt. . . .

“These are not subtle principles” for managing demonstrations, “and they transfer to every situation,” the [French] official said. “This is why we train alongside US federal law enforcement to handle these very matters, and it’s obvious that large parts of any successful plan were just ignored.”