Fourteen years ago, the self-styled “originalist” Justice Scalia ignored the text of the Second Amendment, cherrypicked history, and found that the Constitution provides an individual right to carry guns. Today, Justice Thomas made matters worse by imposing a legal standard on gun regulations that similarly has no basis either in the text of the Second Amendment or in history. Are you surprised?
The gist of this opinion is that gun regulations (even those in effect for over a century) will be judged in the future solely on the basis of whether they are analogous to restrictions in existence in 1791, and that the burden of proving the analogy will be on the government. In this case, the state provided a mountain of evidence relating to gun regulations in England prior to the Revolution, in the colonies prior to the adoption of the Second Amendment, and in American states and territories subsequent to 1791. Thomas, the self-appointed final arbiter of American history, takes on this mountain of evidence piece by piece and finds every bit of it wanting. Circumstances have changed, or the law wasn’t exactly on point, or it was an outlier, or the analogy is too strained, or the law was too old to matter, or the law was too new to matter. None of it was good enough to overcome the presumption operating in favor of guns.
This experience is going to be repeated over and over again, particularly with analogies to 18th century weapons and “sensitive places,” a term not found in the Second Amendment. The lower courts will make its best guess as to whether an analogy works or not, and then Thomas will find that it doesn’t. No gun law is going to survive this kind of biased historical scrutiny unless the Roberts/Kavanaugh concurring opinion is the real majority opinion, which is possible.
I think people should go to the street where Thomas lives armed with AR-15s and tell him his neighborhood is not, historically speaking, a “sensitive place.” When he complains he is being threatened, the left can argue that they are just exercising the Second Amendment rights he values so highly. As to the goose, so the gander.