SCENE: New York governor Kathy HOCHUL is meeting with members of the state assembly.
HOCHUL: The Supreme Court just said we can’t tire person‘s right to keep in bear arms to a completely subjective evaluation of their reasons to want to carry one.
We need to devise a less subjective and arbitrary system.
We need ideas. Go!
ASSEMBLY: how about we have state bureaucrats browse through applicants social media records?
HOCHUL: that sounds like it will be a slow, completely subjective and arbitrary bureaucratic nightmare that will wind up as yet another losing court case.
I love it!
And SCENE.
Under New York’s 2018 bail reform, possessing a firearm illegally is considered a non-violent felony, and so qualifies the offender for no-cash bail.
So we’re all good.
I wonder if Justice Thomas’ opinion in the gun rights case was a good thing?
In the past, the Supreme Court asked whether a right was a fundamental right and if so, applied Strict Scrutiny meaning the regulation was presumptively invalid unless the government could show the regulation was the least restrictive alternative to achieve a compelling government interest. That’s a very high bar. If we could have gotten that test applied to gun rights, I’d be grinning.
Justice Thomas said Strict Scrutiny was one test too many. If it’s a fundamental right, then the only acceptable regulations were historical regulations. For example, restrictions on carrying a firearm in legislative assemblies, polling places and courthouses were uncontroversial in the past. Schools and government buildings were considered ‘sensitive places’ by recent cases. Everywhere else should be permitted carry.
Sounds great, except now we can expect a flood of regulations and lawsuits over what constitutes a ‘sensitive place’ and how long ago is ‘historical.’ The Constitution was adopted in 1791, short-barrel shotguns were outlawed in 1934 which is coming up on 100 years old. Is that ban old enough to be ‘historical’ or is it unconstitutional?
I suggest ‘historical’ should mean those which existed when the Constitution was adopted. Those were the restrictions the Founders knew about and accepted. Those are the restrictions which still should apply, until the Constitution is amended to say otherwise. Restrictions adopted later might stand for years until somebody has the time and money to fight the case all the way to the Supreme Court to get the regulation overturned, which might take longer than a lifetime (see US v. Miller). Meanwhile, citizens are disarmed and defenseless.
Thomas may have gotten the correct answer to the academic question but failed to preserve the rights the Constitution was adopted to protect. Might be a case of being Right without curing any Wrongs.
A decision in favor of personal liberty is responded to by imposing Bentham’s Panoptikon on permit applicants. Somebody is not getting the message. It strikes me as well that not only does it allow the state to discriminate against those with “politically mistaken” social media posts, but also allows people to hide their social media. So the truly objectionable applicants are still untouched, really.
I”m not the historian here, maybe First Ringer or Jeff Kouba can tell me: wasn’t The Shot Heard Round the World fired because the British were advancing on Concord intent on seizing the milita’s weapons stored in the town armory?
Why were weapons in an armory instead of in each owner’s home? Municipal ordinance? Does this create historical precedent saying you can own a gun but must keep it at the police station until checked out for a legitimate purpose, a permissible restriction under the new Thomas opinion?
Wasn’t Dodge City a gun-free zone in the 1880’s? You had to leave your guns with the sheriff and take a claim check to retrieve them when you left, like getting your coat from a fancy restaurant. Is that historical precedent to enact a similar city-wide “sensitive area” ordinance today?
If we don’t know which regulations are acceptable, then it’s up to the court to decide each case as it arises and that leaves gun law open to court packing. At least with Strict Scrutiny, we knew where we stood. I’m concerned the cure may turn out to be worse than the disease.
Reason or force? Conservatives try reason, to persude, which is the civilized way. Liberals always go to Force, to compel, which is the opposite.
Marko Kloos explained it here:
https://patriotpost.us/documents/513
I’m not a fan of the test put forward by Justice Thomas for many of the reasons JD has pointed out. A legal centric podcast I listen to pointed out that Thomas cherry picked his historical precedents, and they predict a series of cases going forward with contradictory precedents put forward from all sides.
OTOH, some people I know are claiming that this test will block some regulations that would otherwise pass strict scrutiny. I’d be curious to see some actual examples.
Personally, no matter the test SCOTUS tells the Circuit Courts to use, I’ll never bet against the Ninth Circus upholding unconstitutional gun control, no matter how specious their supposed “reasoning.” IIRC, there’s a recent snarky Dissent from one of their own judges calling out the Ninth for just that type of behavior.
Mitch,
You forgot to mention these new laws will surely lose in Court unless the Democrats pack SCOTUS.
SmithStCrx wrote:
A legal centric podcast I listen to pointed out that Thomas cherry picked his historical precedents
This is known colloquially as “ginsburging.”