He admitted that he did his own research rather than rely exclusively on the parties’ briefing, and it shows. Suddaby’s reasoning ranges from curious to laughable. Finally, Suddaby struck down a requirement that permit-holders show “good moral character” (which means they have no “demonstrated propensity to misuse firearms”), as well as a requirement that they disclose whether they have children in the home (despite the persistent and devastating problem of unintentional child shootings). He also invalidated a provision of the law that stopped permit-holders from taking their weapons onto private property, like businesses or homes, unless the property owner expressly consented to their presence. To intervene at this early stage, SCOTUS cannot simply hold that the 2 nd Circuit was mistaken: It must conclude that the appeals court “ clearly and demonstrably erred” in applying “accepted standards.” If five justices reach this conclusion, then no gun restriction is safe.Ĭonsider Suddaby’s ruling: The judge struck down New York’s ban on concealed carry in public parks, zoos, airports, buses, houses of worship, bars, conference centers, banquet halls, protests, and many medical facilities, including addiction treatment centers. After all, domestic violence wasn’t a crime in 1791 (when women were not full legal persons) and serial numbers were not yet widely used. Since Bruen, courts have, for instance, ruled that individuals have a right to buy while under a restraining order for domestic violence, and to scratch out the serial number on a firearm, rendering it untraceable to law enforcement. Are states forbidden from banning guns on subways because subways didn’t exist 232 years ago?įederal judges have grappled with these questions for six months, and the results are predictably chaotic. But how many analogues make up a “consensus”? Two? Three? Ten? And how closely must a modern gun law align with its historical analogue? Today’s firearm codes address problems that were inconceivable in 1791. These analogues must demonstrate a “consensus view” that the gun restriction was lawful. The majority opinion by Justice Clarence Thomas imposed a maximalist vision of the Second Amendment: Every restriction on the right to “armed self-defense,” he wrote, is unconstitutional unless it has “historical analogues” from 1791, when the amendment was ratified. This mess was foreseeable from the moment Bruen came down in June.
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