June 27, 2022

The Supreme Court has just released two monumental decisions. Predictable responses have ensued from the expected interested parties. And the widely publicized legal analysis goes something like this….

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Bruen overturned New York’s century-old Sullivan Law. The Court held that the Second Amendment requires that states must allow law-abiding citizens to carry firearms, with the possible exception of courthouses and other “sensitive” locations. High population density does not make Manhattan a sensitive location. Thus, New York can ban either open or concealed carry, but not both. And New York (and DC, HI, MD, MA, NJ, etc.) cannot demand that a citizen demonstrate “proper cause.” Carrying arms is a right, not a privilege.

Dobbs overturned Roe v Wade. Basically, there is no right to abortion in the Constitution. Never was. It’s an issue for the states to handle.

Beyond these bare declarations of final conclusions lies a cornucopia of incredibly important legal foundations. And those foundations may, once and for all (near future) time, severely restrict the various federal District Courts of Appeals from twisting into pretzels to avoid the plain meaning of the Constitution. The first is a direct slap in the face of the Ninth Circus, the Amber Alert poster child for Missing Legal Reasoning.

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Leftist Courts (yes, Justice Roberts, they do exist…) typically do a legal two-step dance to get to the decisions they want. First, (see McDougall v. County of Ventura) they happily admit that the particular law is contrary to the Constitution. Then, contrary to Heller, they adopt a second step that “balances” the interests of the state against the rights of the citizen. This balancing act is infinitely malleable and provides no prior standard for what the state can and cannot do. In short, it becomes a way for tyrants to “pass legal muster.” Bruen shuts this door:

Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.

Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment‘s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

In plain English, if the Constitution protects a right, that’s the end of the discussion. The only thing a state can do to limit that right must be a limitation that is parallel to one that was in existence at and around the time the rate was ratified in the Constitution. Bruen notes that arms were not allowed into sensitive places like courthouses. Such isolated and carefully identified sensitive places may be similarly restricted.

This has immense implications. For example, the First Amendment guarantees the “free exercise of religion.” At the time of its adoption, the US was a highly religious country. Thus, the proper historical analysis leads to a conclusion that the Amendment guarantees freedom of religion, not freedom from religion.

Image: Signing the American Constitution by Henry (or John Henry) Hintermeister. Public domain. 

Thus Carson v. Makin gives us a hint that the Supreme Court is likely to re-establish protections for religious observance. Should another pandemic lead Governor Hair Gel to shutter churches as “non-essential,” a federal challenge should reach the conclusion that the First Amendment protects church services, and that’s the end of the process. Summary judgment for the church!