It was bad enough when, last June, an activist Supreme Court majority that comically calls itself conservative invalidated a century-old New York law restricting the concealed carry of firearms. Now the same majority could use its so-called shadow docket to override a federal appeals court and shoot down the state law passed in its place — without even bothering to hear the state’s arguments on why the policies are consistent with the Second Amendment and the court’s precedents.
The high court’s Bruen decision struck down a statute that required gun permit applicants to show proper cause, or a special need for self-defense, in order to carry a gun in New York. Any restriction on the right to bear arms, Justice Clarence Thomas wrote, should be deemed presumably contrary to the Constitution’s text unless it passed a history test: “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
Talk about weaponizing history: That’s an impossible test for legislators and courts to apply with any clarity or consistency. There is no single American tradition — nor can justices honestly glean how and where the founders intended to restrict weapons far more powerful than any they could ever wield in a society that’s unrecognizable from their own.
