The “Second Amendment” isn’t the reason most gun control legislation is now unconstitutional, and law office history isn’t history

In the wake of Bruen, some people will invariably say that the “Second Amendment” is the reason most gun control measures are now unconstitutional in the United States, and also criticize Thomas’s approach for relying too much on history and not enough on other factors. While the latter point is correct so far as it goes, both give the Court way too much credit. The “Second Amendment” per se does not forbid most gun control regulations, and Thomas’s “history” is just incoherent cherry-picking.

As Breyer observes, creating a novel standard 230 years after the ratification of the Second Amendment to strike down a law enacted in 1911 in fact requires ignoring a lot of history:

Is is definitely true that relying solely on history, and not on the state’s compelling interest in protecting residents from the immense harm of firearm violence, is nonsensical, and applied in this case precisely because the state’s interest is compelling and supported by substantial empirical evidence:

And history-only approaches, as with all law office history, create an obvious problem in that lawyers aren’t historians and aren’t qualified to make difficult historical judgments:

(The Saul Cornell article Breyer cites on this point is good.)

And needless to say Thomas’s opinion exemplifies the flaws of law office history, most notably in its orders to lower courts that they effectively ignore historical evidence inconsistent with the strong policy preferences actually driving the opinion:

Those in the know will appreciate the dig at Scalia accusing people who believe in taking legislative history into account are cherry-picking, when his own historical approach is saturated with it.

And, of course, relying solely on history would not be desirable even if judges were qualified to do it. Both the country and firearms have changed so much since 1791 that relying on history alone would be insane (which is why the majority doesn’t really do it either):

I recommend reading part IV of Breyer’s dissent in whole, as it shows that the amount of history you have to ignore to claim that the radical anti-gun-control approach recently developed by Republicans is constitutionally required is considerable indeed:

I will leave Alito’s characteristically pissy and dishonest concurrence to another post, but I will leave you with a source of evidence Thomas does consider relevant:

Seriously? pic.twitter.com/BjpJiNnv3j— Sonja Starr (@SonjaStarr) June 23, 2022

Needing to cite Roger Taney’s racist oooga-booga because your views cannot be found in any precedent actually dealing with firearms pretty much exemplifies the reactionary project in the United States today.