The Volokh Conspiracy

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New Reporting On Deliberations In Bruen

Justice Thomas's draft majority opinion had the "potential to outlaw many common gun-control measures."


The New York Times has a lengthy article about Professor William English, who has written articles and briefs about gun ownership. Buried towards the bottom of the article is some new reporting on the deliberations in Bruen:

The draft opinion that Justice Clarence Thomas circulated to his colleagues in February 2022 was sweeping, with the potential to outlaw many common gun-control measures. The majority was slow to sign on. Chief Justice John Roberts and Justice Kavanaugh requested modifications, according to people familiar with the deliberations, who requested anonymity because that process is intended to be secret.

By May, Justice Thomas still had not mustered the five votes needed. Mass shootings that month in Buffalo and Uvalde galvanized public attention anew on gun violence. It was not until June that his opinion prevailed, when Justice Kavanaugh signed on but wrote his own more moderate concurrence, joined by the chief.

The authors, Mike McIntire and Jodi Kantor, do not provide any more details on their sourcing. I've heard that Kantor, whom I blogged about recently, spent some time researching the OT 2021 Term, and the Dobbs leak in particular, so I wouldn't be surprised if she gained some information about Bruen. Like with Joan Biskupic's reporting, I will remain skeptical, though presume it is true for purposes of the analysis.

Bruen was argued in November. If Kantor is right, then as late as May, there was still not a majority opinion. It is completely plausible that Justice Thomas wrote a sweeping opinion. It seems, at least that Justice Barrett signed on in full–perhaps ironic since she is the one who most likely has misgivings about Thomas's jurisprudential approach. But Chief Justice Roberts and Justice Kavanaugh were unwilling to join. For Heller, it was long assumed that Justice Kennedy requested modifications to water down the opinion–you know the lines about "sensitive places" and "dangerous" people. Here, it seems that Roberts and Kavanaugh both made the requests. And, apparently, Justice Thomas was willing to water things down to assuage Roberts and Kavanaugh.

Kantor also hints that the mass killings in Uvalde and Buffalo may have impacted the deliberations. I'll add one more data point. The attempted assassination of Justice Kavanaugh occurred on June 8. It is not clear if the majority coalesced before or after that crime. At the time, I wrote that Kavanaugh's concurrence that referenced "mental health reference checks" was likely influenced by his experience. That post was not well received, but I firmly suspect these sorts of external events have to affect the Justices.

May and June of 2022 were such chaotic times, especially with the leak and the assassination attempt. It is still nothing short of a miracle that in the span of a few days, the Court released DobbsBruen, and Kennedy.