Whatever your opinion on the former President, it’s almost impossible to imagine rulings this momentous before he announced his candidacy seven years ago this month. There was a time before Trump. There is a time after Trump. The ramifications, both good and bad, still remain to be fully seen.
Last week, the Supreme Court rocked the political, legal, and social worlds with two momentous back to back rulings. The first was on Thursday, when the Court massively expanded gun rights and set an entirely new standard for restrictions on the Second Amendment. The sweeping decision was made even more controversial for occurring in the wake of a recent spate of mass shootings that has prompted many to question the validity of the amendment in the first place. At issue in the case was a concealed carry licensing process in some 19 states that required an individual to demonstrate they had a “special” self-defense need to qualify for a permit. This requirement put government bureaucrats in charge of determining who was eligible for a concealed carry license based on their own interpretation of another individual’s needs, a situation Justice Clarence Thomas, writing for a 6-3 majority, described as a “second class right.” He wrote, “The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” “The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.” The Justice, now the longest tenured member of the court, continued, “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of ‘bear’ naturally encompasses public carry. Moreover, the Second Amendment guarantees an ‘individual right to possess and carry weapons in case of confrontation,’ and confrontation can surely take place outside the home.”
This portion of the decision shouldn’t be particularly controversial, though the same could be said for many things in these polarizing times. It is a well established principle that the Fourteenth Amendment’s equal protection clause ensures that laws are applied without any discrimination, and clearly authorizing government bureaucrats to determine who’s special and who’s not is discriminatory on its face. The very phrase “special needs” is antithetical to the nature of fundamental rights, but the Court didn’t quite stop there. The majority decision also introduces what may be called a historical standard for determining the Constitutionality of gun laws. In their view, many of the problems that plague society today are not new. They have existed in some form for decades if not centuries, all the way back to the Founding, and even earlier when you take English Common law in account which protected the right to bear arms as early as the 1650s. Therefore, we should look at how restrictions to the Second Amendment were adjudicated over time to deal with the challenges of today, and we should consider what sort of restrictions have been applicable through the centuries. A new challenge could prompt the need for new restrictions, but an old challenge should not go beyond what has been previously accepted. Justice Thomas wrote, “Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” He continued, “The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” This is true even as “the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it.”
The ruling goes on to define the relevant metrics for this historical standard. First, we should consider “whether modern and historical regulations impose a comparable burden on the right of armed self-defense,” and second, “whether that regulatory burden is comparably justified.” There is no doubt that this is an upheaval of previous standards. The “burden” for justifying Second Amendment restrictions is now placed on the state, not the individual. For a restriction to pass Constitutional muster, the state must demonstrate both that there is historical precedent and that the restriction does not place an undue burden on an individual seeking to own a firearm. This is because “individual self defense” is the “central component” of the rights bestowed by the Second Amendment, and any restrictions should be viewed from that perspective. You might describe this as a tie goes to the player, not the house. In other words, the state must err on the side of protecting rather than restricting the right. This could sound radical to some, but it’s the same standard that is applied to the rest of the Bill of Rights, hence Justice Thomas’ insistence that there are no “second class rights.” The government needs to provide a compelling reason to restrict speech or perform wireless searches and seizures, for example. In cases where some doubt exists, the protections of the amendment hold. At the same time, the opinion itself tacitly approves many current restrictions, specifically noting that “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” He identifies long standing laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings.” The issue is when an entire city like New York is considered a “sensitive place” “simply because it is crowded and protected by the New York City police department.” Nor does the ruling prevent the states and localities from implementing complex licensing and permit schemes. It simply says that the same scheme must apply to everyone.
Regardless, reaction from left leaning quarters was swift, merciless, and sadly misguided in understanding the purpose of the Supreme Court in the first place. Disgraced CNN legal analyst Jeffrey Toobin bizarrely stated the obvious, “What conservatives on the Supreme Court are saying is we want the Second Amendment to be a ‘first-class right’ like the First Amendment,” as if the Court should be in charge of administering various pyramid schemes of fundamental rights in the first place, deciding which are real and which aren’t. New York Governor Kathy Hochul was no more insightful when she said, “Shocking. Absolutely shocking that they have taken away our right to have reasonable restrictions. We can have restrictions on speech. You can’t yell fire in a crowded theater, but somehow there’s no restrictions allowed on the second amendment?” She said this even as the ruling itself identifies a raft of reasonable restrictions. Others chose to insist this ruling would necessarily lead to more mass shootings, though none of the recent instances were committed by anyone with a valid concealed carry permit, or even an attempt to get one. Bill Pascrell, Jr. made this more mass shootings claim, and then continued to malign Justice Thomas, calling him corrupt without any evidence. “Clarence Thomas just authored an opinion that will flood our streets with more guns and mass shootings and I want to use this opportunity to remind everyone that Clarence Thomas is corrupt and should resign.”
Still others, even lawyers that should know far better, insisted the Supreme Court should base their rulings on popular opinion rather than the rights enshrined in the Constitution. Former United States District Attorney and long-time Trump antagonist, Preet Bharara wrote, “SCOTUS read neither the room nor the Constitution correctly.” Incredibly, the dissenting Justices, progressives Sonya Sotamayor, Elena Kagan, and Stephen Breyer, appear to agree. They begin the dissent with a dissertation on mass shootings, noting that in “2020, 45,222 Americans were killed by firearms…Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day…Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents.” From there they conclude that “States have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so.” This may be true, but it is also entirely irrelevant to the role of the Supreme Court in a Constitutional Republic. Their job is not to support the objectives of the government, however noble on the surface and however well supported by the populace. Their job is to protect the rights of the citizens regardless of public opinion. Indeed, you could go so far as to say their job is to protect these rights against public opinion. The alternative is an ends-justifies-the-means approach to government by the whim of the majority. This is a vision of that the Founders specifically rejected for obvious reasons, and the remedy they provided was simple if difficult to achieve: If you identify an issue of such grave importance to a large majority of people and states that runs counter to the Constitution, you can amend the Constitution. This has happened some 27 times in our history including a prohibition on alcohol. The Second Amendment should be treated no differently in my opinion.
The Court followed up on Friday with an even more earth-shattering decision, overruling Roe v. Wade and hence a woman’s fundamental right to an abortion. The first time a right had been revoked, perhaps, ever. This was somewhat less of a surprise after the decision was leaked in advance earlier this year (you can read my humble post on the reasoning here), but no less shocking and momentous once it occurred. Some will no doubt find it ironic that on Thursday the Court affirmed rights and on Friday they appeared to take them away, and yet there remains a common thread to the reasoning: Namely, that the law and the Constitution should be the only things that matter to a Justice of the Court. Meaning, you might be a pro-choice Justice who believes abortions should be legal, but if the text of the Constitution and it’s interpretation for almost 150 years prior to Roe v. Wade doesn’t clearly delineate such a right, then none exists and, in these cases, the proper venue for the debate is representative branches of government and ultimately legislation at the state and federal level. This, after all, is the proper democratic process as defined in our system of government. Perhaps needless to say, the reaction to this ruling was even more dramatic. Speaker of the House Nancy Pelosi almost immediately called it “dark and extreme,” a “crusade to criminalize health freedom,” “cruel,” “outrageous,” and “heartbreaking” while falsely claiming the ruling would “criminalize contraception,” “in vitro fertilization,” and “post miscarriage care.” Senate Majority Leader Chuck Schumer went even further, claiming “Today is one of the darkest days our country has ever seen,” as if states free to make their own laws is akin to Pearl Harbor, which launched our World War II effort and left almost 420,000 Americans dead, or 9-11. The Women’s March promised a “Summer of Rage,” claiming it has “just begun. We’ll see you in the streets.” Washington DC is bracing for the worst and unleashing all available manpower to keep the peace, fearing political violence and giving the lie to all those false concerns and crocodile tears from progressives about inflammatory rhetoric, the rule of law, and democratic norms. When they don’t get what they want, they threaten and escalate. This is especially frightening when the solution to the problem from their perspective has been obvious all along. All abortion activists need do is pass a law codifying the right. None other than Senator Elizabeth Warren said precisely this while bemoaning the decision. “We’ve got tools. We’re going to use them in November. We’re going to make sure that we elect enough people who believe in democracy that we can pass Roe v. Wade and make it the law of the land again,” she told CNN. “Only this time, we’ll do it by statute and enforce it.” What a novel idea, one wonders why they haven’t done that considering they insist their position is the popular one.
To be sure, Speaker Pelosi was right about one thing: She claimed this was because of Donald Trump and, though the ruling came from the Court and Trump has been out of office for 18 months, there is little doubt this was actually his achievement. There is no Republican President in modern history that would have withstood the pressure to withdraw Brett Kavanaugh amid ridiculous claims he operated a gang rape ring in high school, nor would any have pushed through Amy Coney Barrett less than a month before a Presidential election. His three Supreme Court appointees tipped the balance of the court for years to come, opening the opportunity for major 6-3 majority decisions that will change the nature of life in America. In another sense, the example he has set, unafraid to speak his mind even when his view is unpopular, fighting the powers that be and conventional wisdom at every turn, ignoring an establishment class too old and tired to advance conservatives ideals, and, yes, being unafraid to violate democratic norms that frequently served as a prison for those ideals, undoubtedly moved the oft invoked, rarely known Overton Window enough to make this possible. President Trump is the man who dismantled the government takeover of the internet, ornamental backyard ponds, and the regulation of naturally occurring gasses in the atmosphere, the first true regulation cutter since Calvin Coolidge. Putting this another way, these conservative achievements were impossible before Trump. They are now probable after Trump. Love him or hate him, there is no single individual this influential in recent history, accomplishing what even the revered Ronald Reagan only dared dream of. Perhaps that’s why they either love him or hate him.