Congratulations to Our Own Will Baude, Steve Sachs, and David Kopel on Their Bruen Cites

Will's Constitutional Liquidation was cited by the majority and by Justice Barrett's concurrence; his and Steve's Originalism and the Law of the Past was cited by the majority; and David's and Joseph Greenlee's The "Sensitive Places" Doctrine was cited by the majority as well. Nice!

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Semi-OT question: Bruen on pages 45-46 cites Nunn v Georgia:

The Georgia Supreme Court’s decision in Nunn v. State, 1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837 statute broadly prohibited "wearing" or "carrying" pistols "as arms of offence or defence," without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To the extent the 1837 Act prohibited "carrying certain weapons secretly," the court explained, it was "valid." Nunn, 1 Ga., at 251. But to the extent the Act also prohibited "bearing arms openly," the court went on, it was "in conflict with the Constitutio[n] and void." Ibid.; see also Heller, 554 U. S., at 612. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.

This is 22 years before the 14th Amendment was adopted in 1868, and 164 years before McDonald incorporated the Second Amendment against the states in 2010. Why does this Georgia Supreme Court decision say the statute violated the Constitution? I would think that if it referred to the state constitution, Bruen would say so, and describe how this was relevant to a US Constitutional violation. See, for instance, page 57, which does specifically compare the state and federal constitutions:

In 1871, Texas law forbade anyone from "carrying on or about his person . . . any pistol . . . unless he has reasonable grounds for fearing an unlawful attack on his person." 1871 Tex. Gen. Laws §1. The Texas Supreme Court upheld that restriction in English v. State, 35 Tex. 473 (1871). The Court reasoned that the Second Amendment, and the State’s constitutional analogue, protected only those arms "as are useful and proper to an armed militia," including holster pistols, but not other kinds of handguns. Id., at 474–475.

There are several more similar references to state Supreme Courts invalidating laws violating the right to keep and bear arms.

A friend tells me this was discussed in McDonald, that prior to the 14th Amendment, some states thought the US Constitution applied to the states, others did not; but after losing the Civil War, the southern states reversed course about that, and the northern states did not want to leave it up in the air so made sure the 14th Amendment did apply the Bill of Rights to the states, which the Supreme Court undid with Slaughterhouse.

IANAL and had no idea there was that much disagreement about whether the US Constitution applied to the states; I thought it was common knowledge that it did not. For instance, some states still had state religions into the 1840s (or thereabouts).

Are there any books or web sites which discuss this more generally?

[Brett Bellmore]

Good question.

In regard to state religions, remember that the 1st amendment specifically says "Congress" shall make no law, and so it was basically universally understood that THAT amendment applied only to the federal level. Amendments 2-8 were phrased more generally, so the question was more open.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes, that common phrase, "Congress shall make no law" is conspicuous by its difference from "shall not be infringed". Always wondered if that made any practical difference before McDonald.

[Joe_dallas]

ABC axx abx comment - "A friend tells me this was discussed in McDonald, that prior to the 14th Amendment, some states thought the US Constitution applied to the states, others did not; but after losing the Civil War, the southern states reversed course about that, and the northern states did not want to leave it up in the air so made sure the 14th Amendment did apply the Bill of Rights to the states, which the Supreme Court undid with Slaughterhouse."

Fwiw - Thomas had a footnote in mcDonald noting that argument existed (a minority of opinion) was that the BOR was incorporated against the states at ratification - partly under the theory that the three parties to the US Constitution was the Federal government , the states and the people of the united states and that all parties are bound to the terms of the contract / constitution unless specifically excluded, thus incorporated against the states at ratification.

Baltimore v Baron (?) (1830 ish?) flat out said the BOR was only applicable against the Federal government. It was the Baron V Baltimore case that was one of the prime drivers that the BOR was only incorporated against the Federal Government.

My personal opinion is that Thomas' footnote has legitimate merit.

[Ridgeway]

One other thing that does not get discussed enough is the cultural shift in America on the meaning of concealed vs open carry. For most of history, open carry was normal and accepted. Concealed carry, on the other hand, was viewed as dishonorable and devious -- the only reason you would have a concealed weapon was if you were up to no good.

In America, at least, this all changed somewhere around the turn of the last century. Open carry came to be seen (in large parts of the country) as provocative and even threatening depending on the circumstances, while concealed carry of handguns became the more polite and accepted way of doing so.

[Sigivald]

IIRC in Britain before it turned against guns, a gentleman in the late Victorian era might have a pocket pistol as well.

(it probably also helps that firearms tech improved a lot between the Founding and the early 20th century.

One of the founders (Jefferson?) carried "a brace of pistol" on the road, because single shots, and open carry would deter bandits.

City dwellers with police, in 1900, with revolvers or early self-loading pistols, well, totally different calculus.)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It's a real shock to read Sherlock Holmes and see how often he and Watson pocket a pistol.

[Kazinski]

The second amendment always applied to the states because it is an extension of the Article 1 Section 8 Militia clause. The prefatory clause "A well regulated Militia, being necessary to the security of a free State..." makes much more sense read in conjunction with the Militia clause:
"To provide for organizing, arming, and disciplining, the Militia".

Congress can't make sure the militia is armed if the states can disarm the people, and the states didn't want Congress to have the power to disarm the people either, leaving the states at the mercy of a federal standing army.

That's the way US v Miller read the 2nd amendment, although they erred allowing the feds to ban short barreled shotguns.

[Brett Bellmore]

Congrats. Those two get a lot of flack from some of the commenters here, but there's no doubt that they're actually legal heavy hitters in their areas of specialization. Perhaps Baude just needs a better hair style...

[mse326]

Does Baude get flack? All the comments I've seen here, and I read basically every post, is that he is one of the most respected of the bloggers. Are you sure you aren't thinking of Blackman?

[Nick Gillespie's Jacket]

Yeah, I don’t remember Baude getting flack here. The most flack he has received, I’m sure, is when he probably had the shortest tenure for a New York Times columnist in history, never appearing again after what I think was his first column—making the case for bigamy or polygamy under Obergefell’s interpretation of the 14th Amendment.

[Brett Bellmore]

Maybe.

[Bruce Hayden]

I was thinking that, as I was seeing the cites to work by Baude and Kopel. What was almost delicious, in its irony, is that Kopel, in one of his very recent VC posts on the 2nd Amdt, was criticized by a commenter for not being properly credentialed. Why was this guy from the Independence Institute and Adjunct Law Prof at DU even allowed to open his mouth in this area? That commenter may not have recognized Dave’s work, but Justice Thomas did (as well as the work of Baude and Sachs) (I have been a fan of Dave’s since he was the only moderate on “Colorado Inside Out” on PBS, which was a favorite of my mother, who knew his father at the CO Legislature).

Congrats to EV here too for assembling probably the preeminent 2nd Amdt group of academic experts in the country, as again evidenced by their citations in the controlling 2nd Amdt cases. And lest anyone forgets, his own work was repeatedly cited in Heller, which seems to be cited by Thomas almost every other page in this decision.

[Nisiiko]

Unfortunately, the decision leaves enough uncertainty that we are assured of years of litigation. New York just announced they consider "subways and restaurants" to be sensitive places. If every place is sensitive, then no place is. I also don't expect them to remove their $450 fee or residency requirements without a court fight.

I guess we'll see whether the lower courts thumb their noses at SCOTUS the way they have done the past 12 years.

[Brett Bellmore]

The left is going to fight every inch on this issue, disarming people has become a central cause for them. But with a 6-3 decision, I expect getting to cert isn't going to be as challenging as it was for the last decade, because the majority don't have to worry about somebody switching sides if a case is taken, they could win 5-4 anyway.

So I expect them to take several cases in the next couple of years. I also expect them to start wearing body armor...

[Nisiiko]

I guess we'll see. It's also possible lower courts will be less likely to use the "two step" rational basis now that Thomas has expressly said it's not allowed.

[Sigivald]

If you don't disarm people, scary minorities might be armed, after all.

(Gun control's origins are racist, and frankly most of its applications are, too, even if the current Karens are obsessed about super-rare spree killings by white people "to save the children".

Looking forward to the entire Progressive wing defending may-issue permitting with local LEO signoff "for good people", as if that is not literally "how you keep black people from ever getting a permit", by design and original intent.)

[Nisiiko]

Not to mention that the spree killings are all the fault of the left.

[Kazinski]

No gun controls origins are fascist and authoritarian, but not necessarily racist.

When James II was disarming protestants the motive was the same as when post-reconstruction state governments were disarming blacks.

[DonP]

Nothing like telegraphing your strategy to create a work around with the odor of desperation. It's like playing poker with your cards facing out. I'm guessing at least a few of the justices might have been a little "irked" at the last few times they tried to game the system with that kind of crap.

They might want to look at what happened in Chicago, when Rahm Emanuel tried that after McDonald. He wound up writing several checks for $300,000+ for legal fees to the Second Amendment Foundation and the Illinois State Rifle Assn. But WTH, it's only Taxpayer money, right?

[Bob from Ohio]

Dobbs out!!!!!!

[Nisiiko]

The liberal tears are delicious.

[Rev. Arthur L. Kirkland]

The Conservatives have hit two homeruns; their fans are cheering!

The Liberals still lead, 14-3, in the bottom of the eighth. The game, like the culture war, is not quite over but has been settled.

Carry on, clingers. But only so far and so long as your betters permit.

Enjoy your celebration, conservatives. And thank you for your continuing compliance with the preferences of your betters as you await replacement in modern America.

[Nisiiko]

I thought the great replacement was a "conspiracy?"

[Frank Drackman]

Thank's "Reverend" (I'd just go with your real name, Jerry Sandusky)
Kirtland,
Like the Great Yogi Berra Said (it was actually Jim Wohlford, but like Yogi said, he didn't say 1/2 the things people said)
"Baseball is 90% Half Mental"
Speaking of 1/2 Mental, your self identified "Betters" are having a collective PMS attack,
Seriously, Abortion? how the fuck would Amy Klobuschar ever get pregnant without IVF???

Frank

[Bored Lawyer]

I skimmed through it quickly. No surprise in the majority opinion. (I mean they don't call it a leak for nothing.)

The concurrences are a little more interesting. Roberts once again proves himself a squish. Kavanaugh a squish that can be convinced. Thomas someone who is looking past the current case to the next fight. And Breyer someone who does not understand the difference between a justice and a legislator.

[ReaderY]

I think Roberts was correct that if it’s not necessary for the court to decide a question, ilit shouldn’t. And I agree with Roberts that the Court could have answered only the cert question Mississippi had originally posed and nothing more, upholding Mississippi’s 15 week limit and saying nothing more than that, leaving earlier limits for another day. And because it could have done this, it should have. However, following Roberts’ approach would only postpone things for perhaps a year or two, if not less. By that time there would be plenty of cases on laws with very early or no limits reaching the Supreme Court, which would pose unavoidable challenges to Roe in its totality.

The court should avoid the appearance of judicial activism, including rushing to overturn precedents whole cloth when it’s not actually necessary to deciding the case before it.

[Bob from Ohio]

Roe was an abomination from the beginning. Early termination is best.

[Bored Lawyer]

"Early termination is best."

I assume that was meant ironically.

[Bob from Ohio]

Recall all the ironic "Roe and its progeny" references over the years.

S/C exercised its right to chose today.

[Bored Lawyer]

In that case, to paraphrase Ross Perot, "That giant sucking sound you here is penumbras and emanations being removed from the Constitution."

[Frank Drackman]

Schumer's "Whirlwind" more like a Beer Fart.
And "45" just freed more Afro-Amuricans (with his 3 Surpreme picks) with this (in the sense that you have to be born to be "free") decision than Lincoln did with a Civil Wah.

[Bored Lawyer]

I skimmed through it quickly. No surprise in the majority opinion. (I mean they don't call it a leak for nothing.)

The concurrences are a little more interesting. Roberts once again proves himself a squish. Kavanaugh a squish that can be convinced. Thomas someone who is looking past the current case to the next fight. And Breyer someone who does not understand the difference between a justice and a legislator.

[Dan Schiavetta]

One should be proud to have one's book cited by the Supreme Court, I suppose, though that is a different universe than the one that considers the quality of the Court's decision, the quality of one's book, and the reason it was cited.

[Sigivald]

Is this just "I don't like it so it's bad"?

(Are you suggesting Bruen was badly decided on some legal or constitutional grounds?

Do explain, this will be amusing.)

[ReaderY]

The Supreme Court overrules Roe v. Wade, with an opinion of the Court by Alito whose reasoning looks remarkably close to the draft leaked back in February, and nobody posts about it?

[Frank Drackman]

Old news.

[Bob from Ohio]

Its only been about 90 minutes. EV is in California.

[F.D. Wolf]

All the opinions cover more than 200 pages.

The attorneys who blog here aren't cable TV "legal experts" who will comment endlessly on opinions they have not read.

[Frank Drackman]

yeah, but it came out several months ago.

[Jason Cavanaugh]

When Blackman is done with his morning autofellatio, he'll come here to do it again with at least six different blog posts.

Give it another hour.

[Frank Drackman]

Wow, these lib's are really "bitter" and "clinging" to their right to kill babies, and don't get it, they can kill all of the babies they want in their own states.

[M L]

And it's not surprising then that they get bitter, they cling to dildos or abortions or antipathy to people who aren't mentally ill like them.

[Jason Cavanaugh]

Your 'insight' demonstrates that you offer nothing of substance to society.

Objectively, you're a piece of shit.

[Frank Drackman]

Bitter much?
and that's "Dr" (Like "Dr" Jill biden, except I'm a real Dr.) Piece of Shit", thank you very little.

Frank "Buying Coathanger Stock"

[Jason Cavanaugh]

Notably, you're too fucking stupid to notice that I wasn't responding to you.

I decided your worthlessness years ago. Back to mute you go.

[Frank Drackman]

I noticed, just didn't care, it's like when you beat up the guy who's bothering your little sister (you strike me as someone who bothers little boys). And "Mute"'s a Perjorative, like calling someone a Cripple or Deaf, or like what people used to call you, a Buggerer.

Frank "are you Brett's Brother? tell him "thanks!"

[M L]

It was Obama's insight.

[Frank Drackman]

Give an "Assist" to "The Turtle", if Merrick The Elephant Man Garland was on the Court instead of Gor-such, the Baby Killers would have won 5-4 (You know that Squid Roberts would have flipped))

[Bob from Ohio]

"Give an "Assist" to "The Turtle"

And Donald Trump

But let' s not forget the true hero, Ruth Ginsburg. Elderly survivor of several cancer scares who clinged to her seat for the adoration. Thanks Ruth!

[Frank Drackman]

you must not be a Hoops fan,
Turtle gets the Assist, "45"(you have to pronounce it like Maxi-Pad Walters "Foaty-Five" or you're race-ist) still had to sink the 3, (get it, 3 Judges)
If it was a President "Jeb(!)" "Little Marco" or that Looser Romeney, you'd have gotten 3 Roberts Clones and another "L"
Ted "Pablo" Cruz probably would have been good, but his personalities even more grating than DJT's

Even Ronaldus Maximus nominated 2 "Pro Choice" judges with SDO and Kennedy, GHWB nominated Souter, and "W" the awful Roberts.

Frank

[Kazinski]

Well maybe she did it on purpose, I'm sure she vehemently supported abortion, but she never thought Roe was a good decision.

She said, much like Roberts today, that the Roe court should have just struck the Texas law as too restrictive, rather than writing trimesters into the constitution.

[Frank Drackman]

With Apologies to (the late, and never aborted George Carlin)

"Did you ever notice the women demonstrating for Abortion you wouldn't want to (redacted) in the first place"

Never more than watching the collective Rending of Garments on CNN/PMS-NBC right now....
Jeez, you mean people can carry guns in New York?, and Not be able to kill babies in Mississippi??? It's Pre-Nazi Germany!!!!!!!!!!!

Frank