George Will Bungles Bruen

www.nationalreview.com
Supreme Court Justice Clarence Thomas in his chambers at the Supreme Court in Washington, D.C., in 2016.(Jonathan Ernst/Reuters )

In the Washington Post, George Will describes yesterday’s Bruen decision as a “serious misfire.” But there is nothing in his piece that comes close to justifying this characterization.

Will starts by quoting Justice Thomas’s 2017 claim that

it is “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

“Thomas,” Will writes, “was right about the framers.”

And yet Will avers that the majority in Bruen was “wrong on Thursday in arguing that this improbability was essentially dispositive.” Why? And — more important — how? If, as Will concedes, the original public meaning of the Second Amendment was that Americans enjoyed the right to bear arms outside the home, then the majority was surely right to have said so?

Continuing, Will notes that “the Second Amendment is the only one in the Bill of Rights with a preamble,” that “the amendment was 217 years old before the court held that it protected the gun rights of individuals, irrespective of membership in a militia,” and that Heller did not reach the question of “bearing” but only of “keeping.” But, again, he draws no negative conclusions from these facts. Instead, he writes only that “Chief Justice John G. Roberts Jr. not unreasonably expressed uneasiness about ‘the idea that you need a license to exercise’ a fundamental right,” and concedes that even Justice Elena Kagan seemed “conflicted.”

Is it the decision itself that is wrong? Apparently not, no. Will submits that

Thomas, in his 63-page opinion, was characteristically meticulous and exhaustive in marshaling evidence of an enduring American tradition of permitting public carry of firearms by people with “ordinary” self-defense needs. And he found no “American tradition” that could justify New York’s “proper-cause requirement.”

So far, so good.

Will’s next complaint is that “the court effectively removed from public debate the essentially legislative choice of balancing the competing values of self-defense and public safety.” But this is what courts do when they conclude that the text of the Constitution is at odds with “legislative choices.” If, after “meticulous” and “exhaustive” research, a majority on the Supreme Court can find no justification for New York’s “proper-cause requirement,” then that majority is obliged to strike it down. In other contexts, Will understands this.

Oddly, Will then switches his focus away from Thomas’s decision, and quotes at length from an amicus brief by “former federal appellate judge (on the 4th Circuit) J. Michael Luttig.” In particular, Will records that, in the 19th century, there were many restrictions on concealed carry, and that these were usually upheld by the courts. But this objection is dealt with in the opinion, which is careful to deal with carry per se, and not just with concealed carry. Consistent with his broader approach, Thomas makes clear that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” But he notes that, irrespective of all that, the “concealed-carry prohibitions” to which Luttig (and Will) are pointing have historically been “constitutional only if they did not similarly prohibit open carry.” Because New York is one of only five states that prohibits open carry entirely, this objection must fall.

Putting meat on the bone, Will then runs through the practical problems he foresees flowing from the ruling, and it is here that he errs most noticeably:

Today, most states, including almost all that filed briefs supporting New York, have multiple restrictions forbidding concealed carry at schools, government buildings, bars, amusement parks, churches, athletic events, polling places, etc. On Thursday, the court perhaps did not invalidate most such restrictions, but it condemned itself to years of judicial hairsplitting in search of a principle about balancing judgments.

Bruen did not deal with this question. It is not, as Will claims, the case that the “court perhaps did not invalidate most such restrictions.” It is the case that the court did not invalidate any such restrictions. Perhaps, in the future, the scope of America’s “gun-free zones” will be litigated. Thus far, however, it has not. Indeed, the only reference made to this question in Bruen comes when the majority makes clear that, while it is “settled” that “arms carrying could be prohibited consistent with the Second Amendment” and that “modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible,” New York cannot get around the problems with its permitting process by cynically “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement.” Recording that it is “aware of no disputes regarding the lawfulness of such prohibitions,” the majority lists a bunch of examples of legitimate “gun-free zones,” including “legislative assemblies, polling places, and courthouses,” “schools and government buildings.”

These details aside, the suggestion that the Court has “condemned itself to years of judicial hairsplitting” makes little sense on its own terms. In the 15 years since Heller, the Court has taken just two Second Amendment cases, and neither of those has been concerned with details, but with broad principles. McDonald applied Heller to the states without altering it. Bruen dealt with the other half of the “keep and bear arms” construction and declined to touch anything else. From where, exactly, does Will get the idea that the Court is interested in micromanagement?

Most peculiar of all is Will’s citation of Luttig’s reference to the events of January 6, 2021:

Finally, Luttig wrote: “Many [Jan. 6, 2021] riot defendants” have said they knew the District of Columbia’s restrictions on concealed carry “and accordingly left their guns at home.” This “may well have prevented a massacre that day.”

This is irrelevant for two reasons. First, because Bruen governs only how Washington, D.C., must treat residents of Washington, D.C. when they apply for a gun-carry permit, and because it therefore has no bearing on visitors from other states, who, under D.C.’s untouched anti-reciprocity laws, would still be unable to carry firearms in the capital. Second, because, irrespective of D.C.’s permitting laws, the restrictions on carrying in the Capitol, the National Mall, the White House, and so forth are not implicated by Bruen, and therefore remain in force.

Will concludes his piece with a cliché:

America the beautiful is today America the irritable, where road rage, unruly airline passengers and political violence — a protective fence surrounds the court — reveal a nation of short fuses and long-simmering resentments.

This may or may not be true — personally, I am skeptical that our age is much different than any other — but, either way, it has no bearing on the constitutional argument at hand. Moreover, given that the case under discussion affects only those Americans who are already legally eligible to possess firearms, it is practically beside the point. Concealed carriers do not intersect with mass shootings, except insofar as they occasionally stop them (this happened as recently as May), and they have little effect on net crime rates in either direction, which is why 25 of the 50 states have abolished their permitting systems completely (while maintaining rules as to who is legally eligible to carry). If, as Will implies, something mystical has changed in the American character since 1791, then Americans must change their laws to reflect that. But until they do, there will be no good case for treating one part of the original Bill of Rights differently from another.

The “misfire” here is not the Court’s. It is Will’s.