Federalist Society: Bruen’s Preliminary Preservation of the Second Amendment

L84Cabo · Nov 18, 2022

Great but long article in the Federalist Society discussing the inherent inconsistency with Bruen and that future 2a cases may not be decided solely on the basis of "text, history, tradition."

The glaring problem with Bruen is that there is no relevant text, history, or tradition in 1791 that supports the notion of needing to obtain a permit to exercise one's right to bear arms.

The most obvious reason for skepticism is that the Bruen opinion itself does not consistently apply its own stated test. Just as Heller issued ipse dixits endorsing several forms of gun control without any evidence of their historical pedigree, Bruen emphasizes that nothing in the Court's opinion should be interpreted even to suggest the unconstitutionality of the "shall-issue" licensing regimes adopted by 43 states. These regimes typically impose conditions for obtaining a carry license that most law-abiding citizens can meet, such as passing a background check and taking a handgun safety class. Bruen notes the obvious fact that these regulations impose a much smaller burden on the right to bear arms than New York's highly restrictive statute. But the Court does not provide so much as a shred of evidence that any kind of licensing requirements had ever been imposed on the general population before the 20th century.

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tkdguy · Nov 18, 2022

So, people do not need a license to carry or buy because the history demonstrated 20th century artificial manufacture of legislation for license laws where no law and existed prior?: Is that it?

L84Cabo · Nov 18, 2022

tkdguy said:
So, people do not need a license to carry or buy because the history demonstrated 20th century artificial manufacture of legislation for license laws where no law and existed prior?: Is that it?

Yes, but more specifically, SCOTUS stated out of one side of their mouth that the standard for determining if a gun law was constitutional was to review "text, history, and tradition" in accordance with 1791 when the COTUS was ratified.

And out of the other side of the mouth they said that CCW licensing was permissible (I'm paraphrasing here)...even though there is no history or tradition of, "We The People" having to trudge on down to our local constabulary and beg for a permit, fill out a bunch of damn forms, pay a bunch of fees, take a stupid class (more fees), etc., back in 1791.

If text, history, and tradition are the standard then the requirement to obtain a permit itself is clearly unconstitutional.

And don't get me wrong. Part of me is very happy about the Bruen ruling. But SCOTUS is already being inconsistent with the ruling and how/when it gets applied. This could very well create problems down the road. Because how does one then decide when it's appropriate to apply the ruling and when it's appropriate to not? It may give the corrupt anti-gun side the ability to continue trampling 2a and say to SCOTUS, "we did exactly what you did."

ilikegunspdx · Nov 19, 2022

L84Cabo said:
The ~~glaring problem~~ reason why Bruen is so effective is that there is no relevant text, history, or tradition in 1791 that supports the notion of needing to obtain a permit to exercise one's right to bear arms.

Fixed

Provincial · Nov 19, 2022

In Justice Thomas' "short prologue" he provided to his analysis of the Civil War and antebellum time periods:

Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right 'to keep and carry arms wherever they went.' Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.

This was an outright admission that the right to keep and bear arms in public was a right that existed in 1857. Long after 1791.

This part of the opinion is reason to believe that the current USSC will actively respond to attempts to limit the right to keep and bear arms.