Informed Dissent

NEWS & VIEWS

Clown court: Extremists don’t care about torching SCOTUS’s legitimacy.

Informed Dissent

PUBLIC DOMAIN

Last month, five extrem ists on

the Suprem e C ourt dism antled abortion rights by giving states the right to dictate w om en’s health care choices.

A few hours before I w rote this, on the heels of a series of m ass shootings, those sam e extrem ists — plus a chief justice w ho appears m oderate only by com parison — ruled that the right to carry guns is so sacrosanct that it m atters not w hether states’ restrictions do silly things like save lives.

In both cases, the m ajority w ill likely have draw n on erroneous (Justice Sam uel A lito on abortion) and selective (Justice C larence T hom as on guns) historical interpretations to w rap their ideological fanaticism in originalist flim-flam. The defining principle of contem porary jurisprudence, it seem s, is that w e’re stuck w ith w hatever the 18th-century patriarchs w ho founded this country failed to envision — assault rifles, women not being their husband’s property, etc. — because “historical tradition” trum ps not just dem ocracy but com m on goddam n sense.

“To justify its regulation,” T hom as w rote in New York State Ri e & Pistol Association Inc. v. Bruen, “the governm ent m ay not sim ply posit that the regulation prom otes an im portant interest. R ather, the governm ent m ust dem onstrate that the regulation is consistent w ith this N ation’s historical tradition of firearm regulation.”

To drive hom e how absurd this “historical tradition” rationale is: T he N ew York gun law the Suprem e C ourt struck dow n is m ore than a century old. Roe v. Wade died just short of its 0th birthday. The Supreme Court first recognized an individual’s right to ow n a gun for self-defense — not carry a gun outside of the hom e, just own it — in … 2008.

A s M ichael W aldm an, president of the B rennan C enter for Justice, pointed out in the Washington Post: “In 1791, w hen the Second A m endm ent w as ratified, New ork City had 33,000 residents. Today it has m ore than 8 m illion. To m e, as a resident of N ew York C ity, the notion that thousands or hundreds of thousands of people m ight be w alking around arm ed, thinking them selves a ‘good guy w ith a gun,’ is, frankly, terrifying.”

Justice T hom as, w ho hasn’t resigned despite his w ife’s participation in D onald Trum p’s coup attem pt, shrugged that aside.

“It is true that people som etim es congregate in ‘sensitive places,’ and it is likew ise true that law enforcem ent professionals are usually presum ptively available in those locations,” T hom as w rote. “… [B ut] there is no historical basis for New ork to effectively declare the island of M anhattan a ‘sensitive place’ sim ply because it is crow ded and protected generally by the N ew York C ity Police D epartm ent.”

T hink about T hom as’ logic: N ew York can’t stop people from carry ing guns in M anhattan just because M anhattan is already sw arm ing w ith arm ed cops to protect m asses of soft targets. A gain, safety is secondary to T hom as’ belief that Jam es M adison — w ho w rote the Second A m endm ent 44 years before the C olt revolver hit the m arket — didn’t m ean anything by the w ords “w ell-regulated m ilitia” but was fine with randos packing Glocks in M idtow n.

M ake no m istake. T his ruling w ill lead to preventable deaths. Bruen directly affects about a quarter of the country’s population — residents of N ew York and six states w ith sim ilar concealed-carry law s. C oincidentally, they include the five states with the low est per-capita rates of gun violence, as w ell as C alifornia (N o. 7) and M aryland (N o. 18).

T hat’s not to say N ew York’s law didn’t have problem s that needed to be addressed. A s a group of the state’s public defenders explained: “N ew York enacted its firearm licensing requirem ent in the early 20th century to prevent im m igrants and people of color from possessing guns. Since its enactment, the law has justified discriminatory policing and crim inalization of B lack and brow n people living in urban low -incom e com m unities.”

In m ore capable hands, the C ourt could have struck dow n N ew York’s law because of its discrim inatory nature. ut fighting discrimination doesn’t jibe w ith T hom as’ apparent goal of returning the U nited States to a tim e before flush toilets.

The effect of Bruen doesn’t bother m e as m uch as the reasoning that deliv ered it. B ecause as m uch as the m ajority tried to m inim ize the scope of its radicalism — A lito: “A ll that w e decide in this case is that the Second A m endm ent protects the right of law -abiding people to carry a gun outside the hom e for self-defense” — the practical effect of Bruen’s “historical tradition” dem ands w ill eviscerate gun law s for decades to com e.

B ut the real takeaw ay from Bruen — and, now , from Dobbs, the abortion case — is that the m ajority doesn’t care about torching w hat little legitim acy it has left. It cares only about furthering its ideological agenda.

A s I’ve m entioned before — as w e should alw ays m ention w hen discussing this iteration of the R oberts C ourt — R epublican presidents have w on the popular vote once since 1988, yet they’ve appointed six of the C ourt’s nine justices. D em ocratic senators represented about 40 m illion m ore A m ericans than the R epublicans w ho confirmed Trump’s appointees.

A C ourt installed by a m inority is enforcing the w him s of the m inority on the m ajority — claim ing federalism w hen doing so is convenient, ignoring it w hen it’s not.

In 1937, fresh off a landslide reelection but w ith a conservative Suprem e C ourt blocking key elem ents of the N ew D eal, President Franklin R oosevelt told the A m erican people, “W e cannot yield our constitutional destiny to the personal judgm ent of a few m en w ho, being fearful of the future, w ould deny us the necessary m eans of dealing w ith the present.”

T he court-packing plan he laid out in that radio address fam ously failed — though not entirely. Support collapsed only after court-packing becam e unnecessary; after FD R ’s threat, the C ourt grew suddenly am enable to his reform s.

T here’s a lesson for m odern D em ocrats w atching a revanchist C ourt unravel a century of progress. So long as the C ourt’s radicals feel unassailable, the m ore radical they’ll becom e.

On fire

By Je rey C. Billman

Get more at billman.substack.com.