Samuel Butler is credited with the quip that “God cannot alter the past, though historians can.” Historians can only try to alter the past; judges can do it with authority. Butler also had an opinion on authority: “Authority intoxicates, and makes mere sots of magistrates. The fumes of it invade the brain, and make men giddy, proud, and vain.”
Yesterday, the Supreme Court handed down its latest decision on the Second Amendment, in New York State Rifle & Pistol Ass’n v. Bruen.[1] Justice Thomas wrote the opinion for the Court, with concurrences by Justices Alito, Roberts, and Kavanaugh. Justice Breyer, joined by Justices Kagan and Sotomayor, dissented. A predictable 6 to 3 split, along what some regard as partisan lines. There are aspects of the decision, however, that will keep legal scholars and public intellectuals busy for a long time. In an affront to “textualists,” the Court’s decision perpetuates the earlier decision in Heller[2] to write the word “militia” out of the Constitution.
The Court’s and the dissent’s opinions have fulsome discussions of the history of laws regarding open and concealed carry of firearm. The Bruen case came up from the United States Court of Appeals on a decision to deny an injunction against the New York state judge who denied the petitioners’ a firearm carry permit. Remarkably, the decision was on the pleadings, with no testimony taken from historian expert witnesses. Remarkably, the Supreme Court took the case without requiring the petitioners to exhaust their state court appellate remedies.
As for the legal history, I defer to the legal historians. Justice Thomas, drawing from George Orwell, teaches that not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”[3] Perhaps we should take Thomas’s teching to heart. The Second Amendment was adopted in 1791, when there were no bullets in the form of metal casings, with shaped lead projectiles. The Second Amendment right may well ensconce the entitlement to use black powder pistols that took a minute to reload and were accurate up to five meters, but there were no handguns that could fire “bullets,” made of metal casings, repeatedly. Relevant handgun technology did not evolve until the period around 1830-40, and even then, it was a novelty.
Maybe we do need a better history? In the meanwhile, New York should promptly require permits for bullets, as we know them, since they were not in existence in 1791, when the Second Amendment became law.
[1] New York State Rifle & Pistol Ass’n v. Bruen, No.20-843, Slip op., U.S. Supreme Court (June 23, 2022).
[2] District of Columbia v. Heller, 554 U. S. 570 (2008).
[3] Slip op. at 25, quoting from Heller, 554 U. S., at 634–635.
