It looks as though there will be no end to the fallout from Supreme Court Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen holding that gun control regulations are “presumptively” unconstitutional unless they are sufficiently “analogous” to a 19th century law. The Court’s requirement of a close historical comparator has turned out to be almost impossible to satisfy, causing lower courts to invalidate or question otherwise reasonable laws prohibiting the obliteration of guns’ serial numbers and firearm possession by convicted felons or domestic abusers.
Most recently, a judge held that the absence of a “historical tradition of sufficiently analogous regulations” limited New York’s ability to restrict bringing concealed weapons onto others’ private property.
Meanwhile, mass shootings have continued at an alarming rate, occurring almost twice daily since the announcement of the Bruen decision, at homes, businesses, schools, shopping centers, parties, bars and night clubs, street corners, hospitals and a Fourth of July parade, often with legally obtained firearms, including semi-automatic rifles.
It did not have to be that way. In 2008, the Supreme Court held that the Second Amendment protects an “individual right” to possess firearms. Two years later, the Court made it clear that the right to “keep and bear arms for the purpose of self-defense” is applicable to the states as well as the federal government.
Those decisions still left the scope of the Second Amendment right to be determined. In other circumstances, even fundamental constitutional rights may be subject to valid limitations when the government can currently demonstrate a sufficiently “compelling interest” to survive “strict scrutiny.”
A similar approach to the Second Amendment would have allowed lower courts to at least consider the value of existing firearms laws in relation to the constraints they impose on gun owners. But even that modest evaluation has been foreclosed by the Supreme Court’s command, as one judge put it, “that a gun regulation’s constitutionality hinge solely on the historical inquiry [as the] only consideration.”
The Court’s embrace of an exclusively historical method of constitutional review represented an ideological triumph for Justice Thomas, who had been pushing for it in a series of dissenting opinions for years. In one solo dissent, for example, Thomas argued that judicial bias in a death penalty case should have been determined according to the “historical treatment of judicial disqualification” as it stood in 1768, under which “a judge was disqualified for direct pecuniary interest and for nothing else.”
The Court’s majority fortunately rejected Thomas’s extreme position, applying contemporary due process principles to hold that “there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”
In another solo dissent, Thomas claimed that minors have no First Amendment right to “access speech” because “historical evidence shows that the founding generation believed parents had absolute authority over their minor children.” In support, he cited a series of sermons and child-rearing guides dating from 1646 to 1790, some of which admonished parents to “suppress their children’s natural depravity,” while others urged only “close monitoring and carefully planned development.”
From these sources, Thomas, alone among the justices, concluded that the First Amendment conferred no rights on children in 1791 and therefore continues to exclude them today.
Determining the “practices and beliefs of the founding generation” from 18th century child-rearing guides, however, makes as little sense as drawing conclusions about modern American eating habits from self-help diet and nutrition books. In both cases, the purpose of the books has been to improve behavior, not document it. If anything, the hectoring of parents by ministers and other authors suggests that young people in the late 18th century had access to more reading material than the most rigid disciplinarians deemed wise.
Thomas has ultimately succeeded at a long game, but his victory comes at a severe cost. Under Bruen’s holding, a gun regulation must be invalidated unless a court can locate “a well-established and representative historical analogue” dating to the 19th century. Reasoning from a silent record is perverse. The absence of an historical counterpart does not mean that a particular firearm limitation would have been considered unconstitutional by the framers, but only that they found it unnecessary, if they thought of it at all.
One judge has already ruled that domestic abusers cannot be prohibited from gun possession because there were no such laws in an age when domestic battery was regarded as an unprosecutable family matter. And high-capacity magazines were unknown, and would have been thought impossible, in the era of muzzle-loading muskets.
There is no logical, sensible or moral reason to confine today’s gun laws to the provisions favored by 19th century property owners, other than a dogmatic commitment to so-called originalism, no matter how much carnage follows. In 1949, Justice Robert Jackson famously cautioned, “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Justice Thomas has at last assembled a majority that now appears bent on turning the Second Amendment into a homicide pact.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship” and many other books.