What’s wrong with the gun-rights decision?
If you’ve read me for very long, you’ll know I’m pretty tepid about gun rights. But I’m going to weigh in on last week’s Bruen decision anyway: I don’t like it.
What I don’t like is the approach Justice Thomas took to reach his results. For ease, and because I’m not so hot on guns to go any deeper, I’ll quote my beloved Morning Dispatch:
Thomas’ majority opinion does rework how courts should assess the constitutionality of gun legislation. Courts must drop their previous efforts to balance the interest of the state in preventing gun violence against the Second Amendment rights of individuals, Thomas wrote, and instead consider only the Second Amendment’s text and the “history and tradition” of gun legislation when the Second and 14th Amendments passed.
“They’re not looking for whether there was the exact same gun regulation,” Stephen Gutowski, founder of gun policy outlet The Reload, told The Dispatch. “They’re looking at whether there was a similar gun regulation.”
Thomas writes that courts are more equipped to perform a historical legal analysis than the cost-benefit analysis they’ve been attempting, but Breyer’s esoteric weapons list highlights that it could still be a challenge to properly identify and apply relevant regulations. “I just think [Thomas is] a little overconfident in the ability of particularly lower courts, which don’t have endless resources and immense law libraries,” Seth Chandler, a University of Houston law professor who has taught Constitutional law, told The Dispatch. “Even Justice Thomas acknowledges that this process of analogous reasoning, it’s not straightforward and obvious.”
It’s not just that history offers only analogies in many cases but that, reportedly, Justice Thomas discarded some historic restrictions as not relevant for one reason or another. How are the lower courts supposed to evaluate history when he was kind of cavalier about it.
So Bruen has not added consistency and clarity to Second Amendment Jurisprudence. It may have diminished it.
Joseph Kennedy, the football-prayin’ fool
On Monday, SCOTUS decided Kennedy v. Bremerton School District, the praying football coach case.
On Monday, I began reading Samuel P. Huntington’s Clash of Civiliztion, which I’m enjoying very much, but not at the moment because I’m typing about a case I was surprisingly ambivalent about.
So let’s see if we can make some brief sense of it and get me back to Huntington. I am hugely indebted to the Advisory Opinions podcast because when I saw all those printed words I said “No, siree! I’m not going to cut-and-paste from all that! I just don’t care that much!”
- Majority version: Saintly Joseph Kennedy only wanted a moment of private, personal prayer at the 50 yard line immediately after the football games he’d just coached. Conscience-bound, he conscientiously violated oppressive directives from the school district, which suspended, then fired him. He wins on both religious speech and general free speech grounds, the gap between which we’re now narrowing. By the way, we hereby drive a stake through the heart of Lemon v. Kurtzman, one of several zombie precedents we’ve left haunting the countryside, while giving the side-eye to lower courts who don’t get the joke.
- Dissent: WTF! You’re describing a completely different case! This is a case of a willful provocateur seeking to lead his players to Evangelical-Jesus, praying in a very public place, in front of most of the stadium, and by winks and nods inviting players to join him at mid-field and yelling “Neener! Neener! Neener!” at the School Board. If we allowed this sort of thing, it would lead to terrible places and he really should have lost.
- Yes, the facts stated in the opinion and those stated in the dissent differed almost that wildly. My impression has been that the dissent’s version is closer to the whole truth, the majority’s version a bit — Ahem! — curated. (I also thought trials, not appeals, were supposed to determine the facts, but never mind.)
- Net result: Kennedy wins and nobody should cite Lemon v. Kurtzman any more. Future courts are again told to consult “historical practices and understandings.” You may genuflect now and back out of the room slowly — and try to wipe that look of puzzled incredulity off your faces.
Hard cases make bad law, but this one seemingly made almost no law at all except that a zombie is now declared a corpse. That’s my story and I’m stickin’ to it unless I stumble across a more compelling version.
Do not forward; moved, left no forwarding address
The West Caldwell Police Department has responded to multiple calls at a residence formerly owned by Justice Samuel Alito. Erroneous information was circulating on the internet that indicated that Justice Alito still resides in West Caldwell, and individuals have been sending harassing packages to the current resident.
Justice Alito moved out of West Caldwell Just after being confirmed to the US Supreme Court, 15 years ago in 2007. The current homeowner has no affiliation with Justice Alito and deserves to live in peace in their home free from harassment, regardless of anyone’s political beliefs.
All incidents will be investigated and those responsible will be charged and prosecuted.
Please like and share this post to hopefully put an end to this activity.
Howard Bashman (How Appealing) via Eugene Volokh
I will never again complain about people who ignore my voicemail greeting and leave messages for an auto parts place with a number one digit off our home phone number.
Tallying the cost of Dobbs
It is done. The decision by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, ending 50 years in which abortion has been a constitutional right.
Now Catholic and evangelical Christian leaders need to acknowledge the costs of their victory. The most visible is nearly a half-century of being in bed with the Republican Party, and most recently its leader Donald Trump, a man of low morals willing to lie, cheat and, to hear the Jan. 6 committee tell it, break the law in order to stay in office.
It also meant becoming a single-issue constituency who sacrificed nearly every social justice issue to create a Supreme Court that would reverse Roe v. Wade.
Yes, the Republicans finally delivered on their promise to reverse Roe, but in every other way it is making the world less hospitable to life. To call this pro-life is absurd.
Thomas Reese, What has the demise of Roe v. Wade cost the Catholic Church?.
There’s not all that much more to the piece, but Reese lists areas of Catholic Social Teaching he thinks have been neglected.
The New Handmaiden’s Tale
I’m sure it’s just another form of sex work, and therefore liberating, but I find this exceedingly creepy.
H/T Rod Dreher
I would find just as creepy, I think, if it was an opposite-sex pair of yuppies staring into each others eyes, congratulating each other on outsourcing a job they just wouldn’t disrupt their careers for.
This instrumentalizes women and commodifies babies, so it’s in perfect keeping with the zeitgeist.
If people have always said it, it is probably true; it is the distilled wisdom of the ages. If people have not always said it, but everybody is saying it now, it is probably a lie; it is the concentrated madness of the moment.
Anthony Esolen, Out of the Ashes
You can read most of my more impromptu stuff here (cathartic venting) and here (the only social medium I frequent, because people there are quirky, pleasant and real). Both should work in your RSS aggregator, like Feedly or Reeder, should you want to make a habit of it.