Jurisprudence

Clarence Thomas’ Maximalist Second Amendment Ruling Is a Nightmare for Gun Control

The justice declared that most restrictions on firearms are presumptively unconstitutional.

The silhouette AR-15 style rifle is displayed on signage for the Firearms Unknown Guns & Ammo gun store, in Yuma, Arizona on June 2, 2022.
Patrick T. Fallon/Getty Images

The Supreme Court commenced a revolution in Second Amendment law on Thursday, striking down New York’s strict limits on concealed carry in a maximalist opinion by Justice Clarence Thomas that renders most of the nation’s gun control laws presumptively unconstitutional. The decision will unleash a tidal wave of lower court rulings invalidating laws designed to protect Americans from the carnage of gun violence. And it will stymie current efforts to reduce that violence through innovative new solutions to this epidemic. For gun control advocates, it is the worst-case scenario.

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Thursday’s decision, New York State Rifle and Pistol Association v. Bruen, involves a challenge to New York’s restrictions on the carrying of concealed firearms in public. Like seven other states, New York bars residents from obtaining a concealed carry permit without some elevated need for self-defense. Thomas, joined by the other five conservative justices, invalidated that law as a violation of the Second Amendment. In doing so, he dramatically expanded the scope of the court’s previous gun decisions, which limited the right of self-defense to the home.

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Before Thursday, 83 million people—or about 1 in 4 Americans—lived in a state with stringent limits on concealed carry. After Bruen, zero do.

But Thomas did not stop there. In striking down New York’s restriction, the justice also established a new standard for evaluating gun control measures. First, he asked whether a law interferes with rights protected in “the plain text” of the Second Amendment—specifically, the right to self-defense (which is not actually in the amendment’s text). If so, Thomas explained, that law is presumptively unconstitutional. The government may only save it from invalidation if it can prove that the regulation “is consistent with this nation’s historical tradition of firearm regulation.”

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In other words, courts may no longer rely on empirical evidence in upholding gun control laws. They cannot, for instance, cite the heightened lethality of a particular weapon. Such data is now irrelevant. Rather, they can only ask whether there is some “historical analogue” from 1791 (when the Second Amendment was ratified) or 1868 (when the 14th Amendment was ratified, applying the Second Amendment to the states). One might assume that this analysis would only shield weapons that were in common use in 1791 or 1868. But Thomas clarified that “any modern instruments that facilitate armed self-defense” are also protected under the Constitution, even if they did not exist until recently.

This approach overrules the test used by many courts of appeals in assessing gun restrictions, creating a new, incredibly demanding standard for the government to satisfy. Previously, these courts engaged in what Thomas dismisses as “means-end scrutiny,” asking whether the law is carefully tailored to promote an important state interest. Countless other rights are assessed under this standard. Thomas, however, declared that it is an inappropriate test for firearm laws, because “the people” already decided that they hold a presumptive right to bear arms when ratifying the Second and 14th amendments.

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After laying out this new test, Thomas easily concluded that there is no historical analogue that saves New York’s statute from invalidation. To do so, he ignored ample history indicating that states have long imposed similar restrictions on concealed carry. Instead, he cherry-picked his own preferred sources to build a misleading narrative of the United States as a libertarian paradise in which gun regulations have always been the exception, not the norm. “Apart from a few late-19th century outlier jurisdictions,” he wrote (falsely), “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.”

It is difficult to overstate the consequences of Thomas’ decision. In a single opinion, the justice has abolished the ability of courts to consider the real-world impact of firearms when evaluating limitations on their sale and use. No longer may cities and states enact new restrictions motivated by, for example, a surge in mass shootings, and cite the need to protect their residents as justification. All these facts are now immaterial. Any government attempting to impose gun control must scour the history books for some historical analogue. Of course, that analogue might not exist, because modern technology has made guns vastly more powerful and deadly, and the exponential growth in population creates new challenges that were not present hundreds of years ago. And even if the government can find an analogue, it must pass Thomas’ Calvinball test, which dismisses all historical evidence in support of gun restrictions.

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There is only one potential limiting principle on Bruen: Justice Brett Kavanaugh’s concurring opinion, joined by Chief Justice John Roberts. Kavanaugh, obviously aware of the extreme consequences that would flow from Thomas’ approach, tried to make the opinion sound more modest than it actually is. He clarified that states can still require licenses for concealed carry permits that may include “a background check, a mental health records check, and training in firearms handling.” And he added that a “variety” of gun regulations remain permissible, though cited only exceedingly modest measures such as “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” It is difficult to reconcile Kavanaugh’s concurrence with substantial portions of Thomas’ opinion and thus hard to know how seriously to take it. Moving forward, gun control advocates’ best hope is that Kavanaugh and Roberts will not follow the strict logic of the majority.

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Even if these two justices do tap the brakes down the road, the upshot of Bruen will be devastating. There is clear evidence that permissive concealed carry regimes lead to substantially higher rates of gun homicides without protecting victims from crime. Relaxed concealed carry laws are closely correlated with higher violent crime and more gun deaths. But that’s just the beginning of the fallout. Thomas’ opinion strongly suggests that myriad other restrictions, such as bans on assault weapons and high-capacity magazines, may also be unconstitutional. At a bare minimum, he has given conservative lower courts a blank check to strike down such laws left and right. Even if the Supreme Court never decides another gun case, Bruen alone ensures that dozens of gun control laws will be invalidated by these courts.

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No amount of increased gun violence will change the court’s mind; it has already announced that deaths from firearms do not matter. As Justice Stephen Breyer noted in dissent, it is no longer permissible for judges “to consider the serious dangers and consequences of gun violence that lead states to regulate firearms.” (Justice Sam Alito, infuriated by Breyer’s reference to real-world violence, asked how he could “account for” the recent mass shootings in Buffalo, quipping: “The New York law at issue in this case obviously did not stop that perpetrator.”)

On Thursday, Thomas and his fellow conservatives threw the United States into a frightening experiment: What happens when the people are no longer allowed to protect themselves from mass slaughter through their elected representatives and are left at the mercy of unelected judges who do not care if they are shot to death?

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