On his Birthday today, Justice Clarence wrote the decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, which clarified that the Second Amendment applies to all Americans. As Professor Johnathan Turley wrote:
In what will likely prove one of the most important decisions in his illustrious career as a conservative jurist, Justice Clarence Thomas wrote a 6-3 majority opinion that brought greater clarity to this and future challenges under the Second Amendment. . . .
Thomas rejected the two-part analysis used by lower courts and held that the presumption must be in favor of the individual right to possess a handgun in public like other rights in the Bill of Rights. The Court held “consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Accordingly, “because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.”
As a practical matter, New York was only allowing gun permits for those who could show "proper cause" for self-defense. This arbitrary standard overwhelmingly preferred the connected and famous. As the Legal Aid Society of New York stated:
Legal Aid Society of NYC praises Court's Second Amendment ruling, complains that NY's gun licensing regulations have "been arbitrarily and discriminatorily applied," disadvantaging "communities of color." pic.twitter.com/VK7YynheqY
— Ed Whelan (@EdWhelanEPPC) June 23, 2022
Justice Thomas put it stronger in a historical context with a flair that only he could use:
A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” Id., at 417 (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.
We can’t even publish the worst reactions, but we will highlight how this shows once again why Mitch McConnell was a brilliant Senate Leader for letting the people decide who would get to choose the Justice to replace Justice Scalia:
Merrick Garland apparently dissents from today's decision. Thankfully he does so from DOJ, and not the Supreme Court. https://t.co/qkLuh4v2Jh
— Carrie Severino (@JCNSeverino) June 23, 2022
As Carrie Severino also points out in the dissent.
Justice Breyer's dissent focusing on policy arguments in favor of NY's law is a reminder of how far we have come to have a majority on the Court who look primarily to the text, history, and tradition when analyzing Constitutional questions rather than acting like legislators. /7
— Carrie Severino (@JCNSeverino) June 23, 2022
We will give the last word to Justice Samuel Alito, who effectively destroyed the dissent’s non-legal policy arguments with his pointed concurrence:
And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.
Happy Birthday, Justice Thomas. And thank you to Justices Thomas, Roberts, Alito, Gorsuch, Kavanaugh, and Barrett for standing up for the Constitution and the rule of law.