The United States has a long, complex, and often contradictory history of firearm regulation. Clarence Thomas reached into that history, selected the parts he liked, discarded the parts he didn’t, and used it to overturn New York’s longstanding handgun licensing law.
A podcast where we dissect and analyze the Supreme Court cases that have contaminated our nation, like microplastics have contaminated our bloodstreams
0:00:00.3 Speaker 1: We will hear argument this morning in Case 20-843, New York State Rifle and Pistol Association versus Bruen.
0:00:14.9 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about New York State Rifle and Pistol Association v. Bruen. The case, which was decided this summer is about a New York state law that set limits on who is allowed to walk around secretly carrying a handgun.
0:00:36.1 Speaker 3: The court struck down the New York law dating back more than 100 years that requires gun owners to have a special need or cause in order to get the license to conceal carry a handgun.
0:00:46.9 Leon: The majority claimed that New York State's licensing requirements were unconstitutional because according to Clarence Thomas's peculiar view of history, it did not mesh with America's traditional regulation of firearms. This is 5-4, a podcast about how much the Supreme Court sucks.
0:01:11.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have contaminated our nation, like microplastics have contaminated our bloodstreams.
0:01:21.5 Michael: Nice.
0:01:22.8 Peter: I am Peter. I'm here with Rhiannon...
0:01:23.0 Rhiannon: Hey.
0:01:24.9 Peter: And Michael.
0:01:25.8 Michael: Hey, everybody.
0:01:27.6 Peter: Today's case: New York State Rifle and Pistol Association v. Bruen, case from the end of this past term about gun rights, which was really the talk... It was the talk of the town until they overturned the right to an abortion a couple of days later. [laughter] That's the Supreme Court news cycle these days, I suppose.
0:01:49.7 Rhiannon: Yeah. Every 48 hours, there's something new to light my hair on fire over.
0:01:56.8 Peter: So New York had a gun licensure regime, where any person who wants to possess a firearm can do so only if they show that they have a special need to own one. The system, of course, was very offensive to gun rights advocates. "How dare New York make me explain to them why I need a gun when that is my constitutional right?" And so you get this lawsuit. And the Supreme Court, in a six to three decision, written by Justice Clarence Thomas, strikes the law down saying that it violates the Second Amendment right to keep and bear arms. So, Rhi, take it away.
0:02:46.0 Rhiannon: Yeah. I think since history is so important in this fucking majority opinion, I think we should start with a little bit of history, at least some history that is specific to New York and this licensing regime. So, New York State has had a licensing regime for gun ownership for a long time, since 1911, when the state enacted what was called the Sullivan law. And that law prohibited public carrying of handguns without a license. After that, a couple of years later, the state established standards for the issuance of a license, and that licensing structure has remained intact basically since then. So in more contemporary times, like at the time this lawsuit was filed and was making its way up to the Supreme Court, 2019, 2020, 2021, the law in New York was that open carrying a gun is prohibited. So a concealed carry license is the only way to legally carry a handgun in public.
0:03:43.8 Rhiannon: Now, the law required some basic stuff that you see with a lot of licensing regimes. You had to be 21 or older to own a gun. You can't have a felony conviction on your record, things like that. For some people working in certain professions, like if they're judges or corrections officers, just meeting those eligibility requirements was enough and you would be issued a concealed carry license. But for everyone else and of course, that means for most people, the vast majority of people in New York, you would have to satisfy the eligibility criteria. And on top of that, like Peter said, show proper cause for why you should be issued a license. Now, proper cause, under the licensing regime, proper cause could be a lot of things. It could mean that you want to carry a handgun for target practice or hunting or self-defense...
0:04:34.2 Peter: If cops have been bothering you lately.
0:04:39.2 Rhiannon: But you have to show some evidence that those needs are real, right? Like that you actually do hunt regularly or you have a special need for self-protection beyond that of anyone else in the general community. So your petition for a license goes to a licensing officer, most of whom are local judges in New York. So your licensing officer for the county in most places in New York would be a judge who is on the bench in that county somewhere. So let's talk about the parties who brought this suit challenging the licensing regime in New York. It's two dudes, just two fucking dudes.
0:05:18.2 Michael: Two guys.
0:05:21.3 Peter: Two law-abiding citizens, as Clarence Thomas puts it.
0:05:28.4 Rhiannon: Yeah. Two guys, Brandon Koch and Robert Nash, they're both residents of Rensselaer County, New York. Koch and Nash each applied for a license to carry a concealed handgun, and both were issued restricted licenses to carry handguns only for the purposes of hunting and target shooting. So, note, they are given a license to carry, they can carry for these specific purposes. And I mentioned that the licensing officer is usually a local judge. In this case, the licensing officer for Rensselaer County is a justice of the New York Supreme Court. His name is McNally. So Koch and Nash, they got their license to carry, but they wanted their licenses to be unrestricted so that they could carry for other reasons, for self-defense and as they put it, all other lawful purposes. So what they did was they wrote to McNally, the licensing officer, who's also a justice on the New York Supreme Court. They wrote to him requesting that the hunting and target shooting restrictions on their licenses be removed.
0:06:28.2 Rhiannon: After that, just in terms of the process that they went through, they each had individual hearings and Justice McNally, in his power as a licensing officer in the county, denied their requests. But he did clarify a couple of things. He clarified that on top of hunting and target shooting, both Koch and Nash, they were allowed to conceal carry for purposes of off-road, backcountry, outdoor activities that are similar to hunting. They could carry for doing things like fishing, hiking, camping, so he...
0:07:00.9 Peter: Yeah. You're allowed to do folksy stuff.
0:07:01.4 Rhiannon: Yeah. That's right, that's right. And on top of that, McNally allowed Koch, one of the petitioners, he allowed Koch to carry his concealed handgun to and from work. Now, neither one of them, Nash or Koch, appealed Justice McNally's decision, but instead they turned around and immediately filed a lawsuit in federal court against Justice McNally and other state representatives responsible for enforcing New York's gun laws. So that's how we get this case.
0:07:31.9 Peter: Now, one quick note, because some Texans might not know. Our Supreme Court in New York is not the highest court. It's our trial level court.
0:07:39.3 Michael: Yes.
0:07:41.4 Rhiannon: Oh. Oh, I thought he was an important guy.
0:07:44.6 Michael: Yeah, no.
0:07:45.4 Peter: No, I don't think so. I think he's just...
0:07:46.5 Michael: He's just a trial judge.
0:07:49.6 Peter: A trial judge. It goes Supreme Court, and then above that is the appellate division, and then our highest court is called the court of appeals, so just a sensible and normal naming...
0:07:58.6 Rhiannon: Yes.
0:08:01.5 Michael: Do you know... Do you know...
0:08:01.6 Rhiannon: Stupidest thing I ever heard.
0:08:01.5 Peter: Naming system...
0:08:03.6 Michael: Do you know the naming conventions? Do you know why it's like that?
0:08:03.8 Peter: No.
0:08:05.1 Michael: It's because there are like... There's traffic court and there's family court, and then there's appellate division and all these courts of limited jurisdiction. But then the trial court has general jurisdiction. So it is...
0:08:16.3 Rhiannon: Wow.
0:08:16.4 Michael: A supreme court. It takes all cases. There you go.
0:08:23.9 Peter: Yeah, that's what supreme means.
0:08:25.1 Peter: It means a court of general...
0:08:26.9 Rhiannon: Jurisdiction.
0:08:27.6 Peter: Jurisdiction. Everyone knows that term to mean...
0:08:30.6 Michael: That makes total sense.
0:08:31.8 Rhiannon: Universal use of the word. Yeah, absolutely.
0:08:35.9 Peter: This is why when I was practicing, I was always removing to federal court. I just didn't wanna deal with this shit.
0:08:43.5 Peter: So one of our first episodes was DC v. Heller, the 2008 case, where the court held that the Second Amendment contains an individual right to bear arms, not just a right that is somehow tied to the participation in a militia, which is what the Second Amendment sort of implies. But that was all Heller really said. So for all of its doctrinal importance and as much of a deviation as it was from the prevailing understanding of Second Amendment rights, it didn't say much about what types of gun regulations were or were not acceptable. In fact, the decision expressly stated that many gun regulations were fine, saying, "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions of possession of firearms by felons and the mentally ill. Or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings. Or laws imposing conditions and qualifications on the commercial sale of arms."
0:09:48.5 Peter: So Heller created this right, this individual right to bear arms, but it didn't really clarify what gun regulations would violate the Second Amendment. Lower courts devised a two-part test to analyze gun laws, where first you figure out if the law burdens a Second Amendment right and if so, you weigh that burden against the public interest of the regulation.
0:10:10.0 Michael: Right, and we rag on him a lot, so I do think it's worth giving Breyer some props here. He wrote a dissent in Heller where he basically laid this out at the time, where he said, "Look, you did all this historical analysis. You determined there's this fundamental right to an individual to have a firearm for self-defense in their home. That's great. But the way we handle fundamental rights, the way courts have always handled fundamental rights in this country, every other fundamental right, the next question is, okay, well, what is the government interest at stake? And then we weigh the government interest against the fundamental right and how narrowly tailored the regulation is, and all this stuff. And that's what judges do and that's what we've always done, and Heller, you don't do any of that. You just say, 'Okay, it's a fundamental right.' End of story."
0:11:05.3 Rhiannon: Yeah.
0:11:05.5 Michael: It's done and they strike down the regulation, and so it's not surprising that courts ended up in a lot of ways following Breyer's dissent rather than the majority opinion there, this very much tracks what he was saying, but of course, the conservatives are like, "No. [chuckle] No, we meant it. We meant... That's it. There's no balancing, there's no nothing, there's no... None of that," which is wild.
0:11:34.9 Peter: It's notable that every circuit court was following this two-part test...
0:11:38.4 Rhiannon: Yes.
0:11:38.5 Michael: Yes.
0:11:39.9 Peter: A lot of the times, when a case reaches a Supreme Court, it's because there is a circuit split, meaning that some circuit courts are going one way and others are going another, creating two separate interpretations of federal law or constitutional law in the country, and the Supreme Court steps in to resolve that contradiction. Now, this is the opposite where every single court in the country agrees except for one, the Supreme Court.
0:12:06.2 Michael: Yes.
0:12:06.4 Peter: And so they step in to be like, "No, we disagree with all of you."
0:12:10.6 Michael: Because they're making it a more privileged right in a lot of ways. It's like literally every other fundamental right protected by the Constitution is subject to some balancing test against governmental interest. Even classifying people by race and gender is permissible at times, given sufficiently compelling government interests, except this. Except the Second Amendment.
0:12:39.5 Peter: Right, the whole sort of goal here of this case in the conservatives' mind, is all the courts are implementing this balancing test that has sort of left gun regulations where they were before. Most gun laws stayed the same after Heller and the conservatives were like, "Well, no, our whole goal here was to liberalize gun laws."
0:13:02.4 Rhiannon: Yes.
0:13:02.5 Peter: That's why they stepped in again, and that kind of brings us to the opinion where Clarence Thomas creates a new test. So the previous test, of course, involves balancing the burden on the Second Amendment rights against the state interest in regulation, but he wants to create a new one, and what he says is that the only test, the only thing that matters is whether the regulation is the type of regulation that would have been acceptable at the time of the founding or historically. So if you're following, that means that the government's interest in regulating firearms is simply not relevant to the analysis; meaning that when a court analyzes these laws, actual policy is not part of the analysis at all.
0:13:50.2 Peter: Thomas is saying that things like the problem that the law is seeking to address and the efficacy of the law in addressing that problem are, in and of themselves, of no relevance. So he acknowledges that there have always been regulations on carrying firearms in sensitive places, "sensitive places." He specifically mentions polling places and... Drum roll, please. Courthouses.
0:14:18.7 Rhiannon: Why are those special, Clarence?
0:14:26.5 Peter: So one of the arguments from the states here was that dense urban areas like New York City should be considered sensitive places, such that states can implement more aggressive gun regulations. Thomas, of course, says no, but the only reason he gives is basically just like, well, if cities are considered sensitive places, that would essentially make them exempt from the Second Amendment. This argument is what fancy and well-read folks might call a tautology. We can't exempt cities from the Second Amendment, that would exempt cities from the Second Amendment, it's like... [laughter] Yeah, it sure would, buddy.
0:15:10.4 Michael: Yes, yeah. That's right.
0:15:12.1 Peter: That's really not addressing the heart of the argument, the real issue and the real reason that he's sort of dancing around it is Thomas says, historically, there were gun bans allowed in these sensitive places, but he does not define what a sensitive place is. He just says, well, it included legislative assemblies, schools, polling places, courthouses, which as an aside, seems to include a disproportionate amount of places where he and his friends tend to hang out.
0:15:45.0 Michael: Golf courses, tennis clubs.
0:15:50.2 Peter: The Heritage Foundation... So just listing a few places that count as sensitive places does not provide any guidance, right? Like why are we allowed to ban guns in those places? Is it the type of person there? Is it how many people are there? Is it the importance of the business being conducted there? What do those places even have in common? Right, I'm not even asking rhetorical, honestly, what is the common thread between schools, polling places, government buildings and courthouses? I just don't get it. The opinion specifically says you can make analogies between those places and other places, but like, can you? 'Cause how can you make an analogy if you don't know what you're supposed to be analogizing to, right? It's like saying, oh, make an analogy to a school, right? It's like, what about a school?
0:16:43.0 Michael: Schools have a lot of people or schools are publicly funded.
0:16:47.2 Peter: Kids there.
0:16:48.8 Michael: Yeah, or the presence of children...
0:16:50.7 Peter: If you're not clear about what you're supposed to be analogizing to specifically what it is that a sensitive place is supposed to be, then you can't make analogies. It's just so obvious and Breyer's dissent absolutely owns him on this point, just by being like, if this is all based on historical analogies, what are we supposed to do about places with no historical parallels? Subways, movie theaters, stadiums, like what are we supposed to do? The world has changed very drastically in various different regards, and if your test doesn't account for that, then what's the fucking point of it?
0:17:23.8 Rhiannon: Right, exactly.
0:17:24.6 Peter: It doesn't make any sense. So that sort of Clarence Thomas leading off the discussion, and then he starts applying the new test, and first, he says, previously, there had been an understanding that the Second Amendment applied primarily to having guns in the home. And he says, no, no, no, it's not just about that, it's also about bearing arms, which means carrying weapons outside the home for self-defense. And at that point, we get to the hardcore historical analysis section, and off the bat, he's like, okay, we're gonna start reviewing historical sources from the 1200s. And I just immediately got a debilitating migraine.
0:18:11.7 Rhiannon: Awful, it's awful...
0:18:12.5 Michael: It's so bad.
0:18:13.1 Peter: And had to lie down.
0:18:13.3 Michael: It's so bad.
0:18:13.4 Peter: Is this what Supreme Court decisions are now? Is this what they're all gonna be like now? "Back in 1387, the local constable arrested Reverend Bartlebeef Fluven for carrying a freshly sharpened chisel back and forth from the local chapel." If this is what all the decisions are gonna be like now, then I'm fucking getting out of the game, I can't do this, it's just... It's unbearable.
0:18:36.9 Michael: It's just... This was a brutal one, it was so bad. The way my heart sank the first time I opened it and it was like 135 pages of the PDF, I was just like, oh.
0:18:48.8 Peter: Again, the goal here is that Thomas is trying to figure out if there are any historical regulations that are like the one that New York has here, right, but the actual analysis he does is just aggressively dishonest, right. Now, the respondents put forth various historical examples of laws and regulations similar to the one in New York. They argue that there were three states with comparable gun regulations at the time of the founding. Thomas says, quote, "We doubt that three colonial regulations could suffice to show a tradition of public carry regulation."
0:19:27.9 Rhiannon: Uh...
0:19:28.0 Michael: What, what?
0:19:28.1 Peter: I'm sorry, what? Three out of 13 fucking states had gun regulations and that would somehow not be enough to show that they're constitutional?
0:19:40.1 Rhiannon: Right.
0:19:41.7 Peter: Why not? Do we...
0:19:41.8 Rhiannon: Right.
0:19:42.2 Peter: Some... Do we need a majority? Like What's the number? How many states do you need to have one of these laws...
0:19:48.6 Rhiannon: Right.
0:19:49.0 Peter: Before you're like, Alright, they obviously thought this was constitutional.
0:19:52.3 Michael: One.
0:19:52.4 Rhiannon: Yeah.
0:19:52.3 Peter: I mean, I would... One is like a sincere option.
0:19:55.2 Michael: Yeah, that's what I'm saying. Yeah, and it's a serious answer, one...
0:20:00.9 Peter: Yeah.
0:20:01.0 Michael: The answer should be one. That's it.
0:20:02.8 Peter: While we're supposed to be looking for evidence that the founders did not think these regulations were unconstitutional, nearly a quarter of the existing states at the time, having regulations is apparently not enough? Now, he sort of distinguishes those laws in various ways, and then he says, "Look, even if there were laws at the time of the founding aggressively regulating handguns, that wouldn't necessarily matter because handguns weren't in common use at the time, but they are now," and it's like, well, hold on. What's the rule supposed to be? I thought it was that you're supposed to be looking for a historical parallel, but now it's like even if you find a historical parallel, you can't regulate a type of gun if it's popular? Is that... That's the rule?
0:20:50.8 Michael: Yeah, it's this one way ratchet, it's wild. So what they say is like, "Look, it's fairly supported in our traditions that prohibiting the carrying of 'dangerous and unusual weapons' is okay, but that the Second Amendment protects the possession of weapons that are in common use." And so what you can see is, with opinions like this, that oftentimes, not only can you not be more strict than they were at the founding, you can't even be a strict as they were at the founding, because maybe not enough states were that strict or because in the intervening time, some gun has become popular and is now, "in common use". The scope of gun regulations narrows the category of guns you can regulate or prohibit, narrows and narrows and narrows and never expands. Once you let the assault rifle ban lapse in 2004 and a bunch of assault rifles that were previously unusual, become usual, you can no longer re-enact the ban, that's done, that's it. It's fucking wild. It's originalism for the living constitutionalism for me.
0:22:07.5 Peter: Right. You must find a perfect historical analogy for your regulation, and also if society agrees that these guns are dope as hell... Yeah, we get to keep them.
0:22:21.2 Michael: Yeah, it's just like the bad faith and the lack of any care at all about any pretext of doing anything, but hackish work here is pretty breath-taking.
0:22:34.5 Peter: And this is one of the many examples in this opinion of little outs he gives himself.
0:22:39.4 Rhiannon: Yeah, over and over.
0:22:40.0 Peter: Just little things he trickles in the opinion that are like, just in case someone ever figures out a way to regulate guns in a way that we don't like using our own logic, here's a little escape hatch we can use.
0:22:53.1 Rhiannon: Yeah, yeah.
0:22:53.7 Michael: Yeah. But I do wanna make one last point about history and tradition, you're saying three states at the founding, three out of 13, but also this law is 110 years old, right?
0:23:04.0 Rhiannon: Yeah.
0:23:05.5 Michael: 110 years old. It's over a century old. You want a historical precedent for this law. It's this law, this law is the historical precedent. This law stood for over a century. What the fuck are we talking about here?
0:23:19.3 Peter: So, alright, so there were like several other historical analogies that New York makes that just get hand-waved away in various ways, based on completely arbitrary distinctions that Thomas makes. There were a variety of firearms restrictions in place shortly after the founding, and Thomas just goes through them, sort of like nit-picking each one. "Well, this law was passed on a Friday, and the New York Law was passed on a Tuesday, so we can't really compare 'em." [laughter] There's one notable line of reasoning when he's talking about a handful of laws that include a late 18th century firearm prohibition in New Mexico, and he's like, "Well, the constitutionality of those laws was never challenged in court, so we don't know whether people at the time considered them constitutional," and it's like, I think you might have that logic backwards, buddy.
0:24:11.0 Michael: Yeah.
0:24:11.1 Peter: If they were never challenged in court, that seems like pretty good evidence that no one thought they were unconstitutional.
0:24:17.7 Rhiannon: Exactly.
0:24:18.5 Michael: They're like, no one anywhere at all.
0:24:20.4 Peter: Right, and I think Clarence Thomas might know this because earlier in the opinion, he said that the laws about sensitive places were presumptively constitutional because they were never challenged.
0:24:32.3 Rhiannon: That's convenient.
0:24:34.9 Peter: Literally just using the opposite version of the logic he's already applied. It's incredible to me.
0:24:40.7 Rhiannon: Aaah! This is me screaming into the void...
0:24:41.1 Michael: He's such a piece of shit.
0:24:41.1 Rhiannon: Aaah! Because I read his opinion, it's so bad!
0:24:48.2 Michael: It's so bad. It's awful.
0:24:51.6 Rhiannon: It's just a quintessential example of the court like cherry-picking history, right? Like we've said this over and over again, but there's something about this opinion, there's something about the opinions from the cases from this term, and particularly this one, the section... The historical analysis section was un-fucking readable, just mind-numbingly awful, I had to... I had to... Reading it I had to give myself a reward for every paragraph, not even every page to keep going.
0:25:19.9 Peter: A little trail of candy down the page.
0:25:24.5 Rhiannon: That's right. Yeah, it was awful. But Yvette Borja, she writes for Balls and Strikes, she pointed this out in a piece about this case, like just this extremely selective view of the historical record. Thomas says that medieval era weapons regulation, that's too old so it's not relevant here. So are colonial era handgun laws, and those, quote, "provide no justification for laws restricting the public carry of weapons today, laws that are similar or not similar enough, gun control laws, more recently," he calls those, quote, "outliers" that have insubstantial value in discerning the meaning of the Second Amendment. And Breyer, for his part in the dissent, he totally calls this out like we said, he says that this historical analysis gives, quote, "judges ample tools to pick their friends out of history's crowd."
0:26:18.0 Michael: Yeah, that's right.
0:26:20.4 Peter: And this approach, by the way, has led to some observers calling this the Goldilocks approach to history, right?
0:26:26.8 Rhiannon: Yeah, yeah.
0:26:27.7 Michael: This history is too old. This history is too recent.
0:26:32.8 Rhiannon: I need the history that's just right.
0:26:36.2 Michael: That's just right. Yeah, exactly. I do think Breyer's dissent is good on this point, because this is similar, and we talked about this in Heller and in the recent prayer case, the JV coach praying. But it's not a surprise that the appellate courts all settled on the same test, the same rule, the same process because this is what courts know how to do. Breyer's dissent in Heller, that this is how we analyze these cases, is doesn't just have descriptive force, although it is accurate, it has good normative force. This is how you're trained. This is what you learn in law school, this is what you practice as a lawyer doing constitutional law, and certainly analysis you do all the time as a judge.
0:27:24.7 Michael: This is what judges know how to do. They know how to weigh the state's interests versus the constitutional interests. These are things that they've thought about and studied for decades. It's what their life's work is, in a lot of cases. Reading history is not. Reading history is, for a lot of them, at best, something they studied in college. Maybe not even that. Maybe they just have a clerk who has a degree in history. They are totally amateurs, right?
0:27:58.6 Rhiannon: Absolutely.
0:28:00.3 Michael: And it's taking them out of an area of expertise, an area where they're extremely comfortable, and putting them in an area where they are literal amateurs and asking them to do definitive historical analyses which leaves them relying on briefing.
0:28:18.5 Peter: Right.
0:28:18.9 Michael: Briefing from interested parties...
0:28:20.7 Rhiannon: Yes.
0:28:21.0 Michael: Who are agenda-driven and aren't always gonna be giving you, and in most cases, probably will not be giving you good historical analysis. They'll be giving you agenda-driven historical analysis.
0:28:32.9 Peter: But also they couldn't give you good historical analysis even if they were trying genuinely, because they're not trained historians. They're lawyers.
0:28:39.2 Michael: No, that's right, that's right.
0:28:41.2 Rhiannon: Exactly. Yeah.
0:28:41.3 Michael: That's right. They're lawyers, yeah. It's not only a bad way to do law on the merits, but I think it's just a dumb way to do law. [laughter] It's so stupid. I don't understand how anybody takes this seriously. I do not.
0:29:00.0 Rhiannon: Michael, I'm a little giggly, because... Do you remember in Heller? [chuckle]
0:29:04.2 Michael: Oh my God, we were so upset, I got so upset.
0:29:05.8 Rhiannon: You got so fucking mad. [laughter]
0:29:08.2 Michael: It's fucking ridiculous. It's a ridiculous exercise.
0:29:13.9 Michael: This whole thing. It's so fucking stupid. Oh, yeah, let us divine the understanding of Joe Schmoe in 1795, whatever.
0:29:25.7 Rhiannon: Yeah, yeah.
0:29:26.7 Michael: Clarence Thomas, even worse than fucking Scalia on that front.
0:29:31.6 Peter: Right.
0:29:32.2 Rhiannon: Yeah.
0:29:32.5 Peter: I do think that one good thing about these opinions that are diving into the history, is that it sort of laid bare just how fucking stupid originalism is and how indeterminate it is.
0:29:46.0 Rhiannon: Yeah.
0:29:46.8 Peter: How useless as an analytical tool it is. It's like whatever you thought about it before, now that you have the Supreme Court really diving into it consistently, any honest person can see that this is bullshit.
0:29:58.8 Michael: Right. Top to bottom.
0:30:00.6 Rhiannon: This is a good spot, it feels like, to take a break.
0:30:03.6 Peter: Alright, we are back. So Kavanagh files a concurrence that Roberts joins, which is important primarily because he says, this is only affecting these so-called shall issue gun licensure regimes, where you have to essentially show why you deserve a weapon.
0:30:24.1 Rhiannon: Right.
0:30:24.3 Peter: And the state has discretion in giving you the weapon. This does not affect the sort of standard licensing regimes across the country that you see in most of the red states, etcetera, where you can be disqualified for any number of enumerated reasons. Barrett files a concurrence as well. Didn't read it.
0:30:47.3 Peter: I only realized it was there about 15 minutes before we recorded, and I was like, "Oh, right." I read the first sentence and it was like, "I write only to clarify two methodological points," and I was like, "No, I'm not reading this. "
0:31:00.8 Michael: No.
0:31:00.9 Rhiannon: Yeah, I didn't even skim.
0:31:03.4 Peter: Only thing I'll say about it is, it's impressive to be on the court for two years and not have said a single interesting thing the entire time, but Amy Coney Barrett has genuinely done that.
0:31:13.3 Rhiannon: Not once.
0:31:14.0 Peter: It's remarkable, remarkable.
0:31:17.2 Michael: Also remarkable is the other concurrence...
0:31:23.1 Michael: By one Sam Alito. If I wanted to describe it in as brief and pithy a way as possible, it would be that Sam Alito is very mad.
0:31:34.9 Rhiannon: Yeah, yeah.
0:31:36.1 Michael: He is very mad at the dissent, and he's very mad at the dissent for talking about gun violence. That is what his concurrence is. "Who the fuck do they think they are? Can you believe it?" And the result is eight pages or seven pages, or whatever of venom, just peppered with rhetorical questions... This dude was red in the face, writing.
0:32:02.3 Peter: Right, furious.
0:32:04.9 Rhiannon: He's like posting. This is like...
0:32:06.8 Peter: He is posting.
0:32:07.5 Rhiannon: Yeah, yeah.
0:32:08.7 Peter: Alito is the closest thing we have on the court to just a dedicated poster. He's just very angry. It's like one of the more articulate people in your Facebook mentions. Right.
0:32:23.4 Rhiannon: Right, exactly. He's someone on Twitter with American flags and eagle emojis in his bio.
0:32:29.9 Peter: The Oakley sunglasses in the...
0:32:31.5 Rhiannon: That's correct.
0:32:33.1 Peter: In the picture.
0:32:33.3 Rhiannon: Yes. [chuckle]
0:32:34.8 Michael: Yeah, he's pissed at the dissent for pointing out that gun violence is a problem in America, and the Supreme Court is making it worse, essentially, and so his response is to have a spittle covered...
0:32:51.2 Rhiannon: You need the sneeze barrier, like on subway... [laughter]
0:32:55.9 Michael: Yeah, exactly [laughter].. Just his computer screen just like disgusting while he's typing this, just yelling at his wife. "And they said this, and they said that. [laughter] Can you believe it?"
0:33:09.2 Peter: She's watching BoJack in the other room, like, "No, you're right."
0:33:13.7 Rhiannon: Yeah.
0:33:15.8 Michael: So, it ends up just being a big tirade of common right-wing talking points about how guns are really important for self-defense, with a few real shitty cheap shots thrown in there like, "Oh, New York didn't stop the Buffalo shooting, New York's law didn't stop that."
0:33:35.2 Peter: If gun laws work, why did a single gun crime happen within the state?
0:33:39.9 Michael: Let's not worry about the fact that New York is bottom five in per capita gun ownership and bottom five in per capita gun death. That's maybe interesting.
0:33:48.5 Peter: You're talking about data, Michael, that's not what Sam Alito was talking about.
0:33:54.8 Michael: Sam Alito, he wants us to know one thing though, that he's not mad, and he's not red, and do not put it in the Supreme Court Reporter, that he was...
0:34:02.8 Rhiannon: Right.
0:34:03.7 Michael: He's having a normal day.
0:34:05.2 Rhiannon: He's having a normal day. Okay.
0:34:07.7 Peter: He's not someone whose opinions are completely dictated by what makes him the angriest at any given time.
0:34:14.4 Rhiannon: Nope, no, no, no.
0:34:17.1 Michael: So that's his concurrence. Good stuff.
0:34:18.1 Rhiannon: Yeah, so Justice Breyer writing in dissent again here, he wrote in dissent in Heller, and now again in this case, he starts off close to the top saying, quote, "Only by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York's law is not consistent with the nation's historical tradition of firearm regulation." And he also points out really explicitly the Goldilocks approach to history that Thomas does in the majority. Breyer says, quote, "Some of the laws of New York has identified are too old for the majority, but others are too recent. Still others did not last long enough. Some applied to too few people, some were enacted for the wrong reasons," so...
0:35:05.4 Rhiannon: Yeah, Peter, you said this a little bit earlier, I think we're not huge fans of Breyer's powerful writing or anything, but he does point out some really big issues with the majority opinion. And he basically says, the question before them, the question before the court is the extent to which the Second Amendment prevents elected officials from enacting laws to address the serious problem of gun violence, but the majority is going about it all wrong and answers the question without discussing gun violence, how severe a problem it is in the United States, none of that.
0:35:38.6 Rhiannon: Right? It doesn't contend with the reality when you are stuck in this selective version of history, so... Yeah, Breyer does lay out some statistics about gun violence and the reality of gun ownership in the United States today. He says that in the US, there are about 120 firearms per 100 people, which is more guns per capita than in any other country in the world. He also brings in data and stats about gun-related injuries and gun-related deaths. States that ranked the highest in gun ownership, he shows, also ranked the highest in gun deaths. He talks about the tens of thousands of gun deaths each year, tens of thousands of ER visits for non-fatal injuries caused by guns, and he says that gun violence is on the rise with an increase in gun-related deaths of 25% since 2015.
0:36:30.7 Peter: Oh, that's just statistical noise. 25% in seven years.
0:36:35.1 Rhiannon: Yeah, fuck that. What did my favorite founding father think? What Breyer says it comes down to is whether you think the Second Amendment allows states to take account of the problems posed by gun violence and regulate as they see fit, or you wanna ignore the big questions that gun violence brings up and you're forbidding States from addressing those questions with any kind of regulation, but it's not just that the majority is coming out the wrong way on this, according to Breyer, it's that the majority is doing this without any evidence at all about the problems they're pointing out.
0:37:08.2 Rhiannon: So the majority says that New York gives licensing officers too much discretion and it doesn't allow for meaningful review or appeal of the licensing officers' decisions, but really importantly because of the procedural posture of this case, because of the way the case came up to the Supreme Court, the court has no evidentiary record before them. They have no information about how often people's petitions are denied, they have no information about what the appeals or review process is and how often initial denials are reversed. They don't even know how many times license applications are granted in New York every year.
0:37:47.2 Michael: Right.
0:37:48.5 Rhiannon: So, we say it over and over again, but this is just another example of the way an unaccountable branch of government, the Supreme Court, is doing the dirty work for conservative policy goals enacting conservative Republican policy goals from a branch of government that has no accountability to the people.
0:38:11.5 Peter: Yeah.
0:38:13.5 Rhiannon: Okay, so there's this other perspective, I think our discussion so far about this case has been a little bit limited, kind of limited in scope because we're just talking about what the majority said and the dissent said, but yeah, there's this other perspective that I think is really important, there's an amicus brief, and listeners will remember, this is a brief that's filed by an individual or an organization that is not a party to the case, but they're interested in the result, and they wanna tell the court why the court should rule a certain way. So there's this amicus brief in this case that was filed by public defenders in New York, who see how these licensing regimes interact with the punishment system.
0:38:58.0 Rhiannon: And they argued in this amicus brief that the New York licensing laws should be struck down because basically, they operate on the ground as a pretext to further criminalize and damage Black and Brown people, Black and Brown communities. They go through this history of gun restrictive laws in New York, but across the country, too, and they show that these laws only started being passed when White people saw people of color arming themselves in self-defense, right?
0:39:27.9 Peter: Yeah.
0:39:28.3 Rhiannon: They cite data in the brief that shows that even though Black people make up 18% of New York's population, they account for 78% of the State's felony gun possession cases, and based on NYPD arrest data in 2020, for example, 96% of arrests made for gun possession in New York City were of Black or Latino people, 96%. So they're demonstrating that New York gun licensing laws really only operate to take guns away from Black and Brown people...
0:40:01.7 Peter: Right.
0:40:02.1 Rhiannon: And there are stories in this brief of specific people whose lives have been ruined by these prosecutions, all of the collateral consequences of arrest and prosecution; your kids get taken away. You lose a job. You lose your housing. I think the main takeaway from this perspective, from the public defenders' argument for me, one of the main takeaways is that liberals have accepted this premise that in order to stop gun violence, we need laws that restrict individual gun ownership, but the thing that that fails to account for is that that increases interactions with police and prosecution, especially of racial minorities. So this is a really compelling argument to me as an abolitionist, and I think that with all abolition and harm reduction, you should place this argument in a larger context, like no one is saying that gun violence and gun deaths aren't a problem, that's not like what the public defenders are arguing, right? But that maybe we should look beyond criminalization and prosecution as the solutions because actually criminalization, prosecution, arrest, actually that doesn't make anybody safer.
0:41:18.7 Peter: It's almost sort of advocating against backend regulation. You have the regulation on the frontend, which is someone enters a gun store and says, "Hey, I would like to buy this gun" and they say, "No, you can't." Right, that's sort of frontend regulation, backend regulation would be, "You have this gun and I'm arresting you because of it," right. And it's something that police use aggressively against minority communities.
0:41:43.1 Rhiannon: Right, exactly.
0:41:44.8 Peter: The fact that there are people on the left coming out against this regulation is interesting, because here you have this incredibly stupid majority opinion...
0:41:53.0 Rhiannon: Yeah.
0:41:54.1 Peter: Rambling on about hand-selected versions of history, and then you have these PDs pointing out some real issues with how the law materially impacts people on the ground.
0:42:03.3 Rhiannon: Yeah.
0:42:03.8 Peter: Now, there's a whole debate to be had about the utility of trying to put left legal arguments in front of a very conservative court. I'm not entirely sure where I land on that honestly, but it's just sort of like A, fascinating and B, depressing to read the brief because it feels like it represents the discussion we could be having...
0:42:21.9 Rhiannon: Yeah.
0:42:22.2 Peter: Right, we could be talking about the disparate impact of criminal law and the equal administration of the law, but instead we're talking about the regulation of tiny handguns in 1795.
0:42:34.4 Rhiannon: Right, right, exactly.
0:42:36.8 Peter: We've sort of turned this very real argument into something completely absurd.
0:42:42.2 Rhiannon: Yeah, yeah, it's much more nuanced than anything in that majority opinion, and frankly for me, it's more nuanced than the dissent, too. Right?
0:42:53.3 Peter: Yeah, or at least touching on issues that directly impact people.
0:42:58.0 Rhiannon: Exactly, yeah. We're talking material reality here yeah.
0:43:00.6 Peter: Treating the law like it's a real thing that impacts real people...
0:43:03.0 Rhiannon: Yes.
0:43:04.6 Peter: Instead of delving into these historical sources and trying to extract some hidden meaning; all that dumb shit that this entire opinion is about.
0:43:17.7 Rhiannon: Exactly.
0:43:19.0 Peter: I do wanna talk about, we mentioned that the majority described the petitioners here as law-abiding citizens and uses that terminology throughout the availability of gun rights to law-abiding citizens. And this sort of fits within this conservative framework we've discussed before, where they sort of divide society into good boys and bad boys in their minds.
0:43:43.2 Rhiannon: Yes.
0:43:44.3 Peter: And then are very willing to deny rights to the people that they deem the bad boys. This is good boy, bad boy theory, very conservative mindset because they don't really believe that problems like gun violence are institutional or structural in any sense, they believe that everything is just sort of an individual problem. So, the idea that you might be able to mitigate gun violence by slowing the proliferation of weapons in society is very foreign and distasteful to them, but the idea that you could just deny gun permits to the bad boys, that's perfectly natural and it fits very squarely within their worldview.
0:44:24.8 Rhiannon: Yeah.
0:44:26.4 Peter: And I also think we should talk about the sort of elephant in the room here, which is like what a gun is now versus what a gun was at the time of the founding.
0:44:37.2 Rhiannon: Yes, yes.
0:44:38.3 Peter: It's just sort of flatly stupid to say that if you want to pass a gun regulation, there must be a similar historical regulation, when both guns themselves and like the way that our society operates generally have changed so drastically. Now to focus on guns for a second, the idea that both muskets and AR-15s are considered guns is almost just like an etymological coincidence.
0:45:05.0 Rhiannon: Yeah.
0:45:06.8 Peter: They are devices with some key commonalities, but they are not meaningfully the same thing. Michael, I think you mentioned male and email, basically both containing the word male very prominently, and it's like, I can see why they use that same terminology, but also those are very markedly different. And it's just to sort of say that the conception of what arms were at the time was just not close to what it is now and it's pretty fucking sloppy to ignore that. And people say that this is an originalist opinion, and it purports to be one, but an originalist analysis could just as easily cut in the other direction, right? An originalist interpretation would be that when the founders said the word arms, they were referring to arms at the time, whatever the universe of that was. And anything that was invented or proliferated afterwards was naturally outside of the scope of the term as they were using it, that's a very coherent and consistent originalist argument, but naturally leads to the wrong conclusion.
0:46:16.6 Michael: Or at least subject to more limited protections, right?
0:46:19.7 Rhiannon: Sure.
0:46:19.7 Peter: Right, right. So the conservatives just, they just sort of discard that argument for pretty obvious reasons, it's disastrous for their policy position, which means that for some reason, when the 14th Amendment protects fundamental liberties, the court says that that only means things that they would have considered to be fundamental liberties way back in the day. But when the Second Amendment says it protects the right to bear arms, that definition is flexible and evolves with the times.
0:46:49.7 Rhiannon: Yeah, yeah. Did you see his treatment of the pocket pistol thing?
0:46:55.8 Peter: Yeah, yeah, yeah.
0:46:58.0 Rhiannon: So he recognizes, acknowledges that there was a regulation at the time, at least somewhere in the country, that prohibited the carrying of what were called pocket pistols, obviously very small guns that could be carried in somebody's pocket. And he's just like, "Well, that doesn't count. That's not... That's not an analogous historical regulation because those guns were different, they were only like three or four inches long, and most guns at the time were bigger than that, and they could be carried around," and it's like a much simpler interpretation could be that, yeah, at the time they treated different weapons differently, and so can we, because there are different...
0:47:43.0 Michael: Right, and maybe easily concealed weapons.
0:47:46.7 Rhiannon: Exactly, exactly. Easily concealed. It's right fucking there.
0:47:49.0 Peter: Why would they be regulating tiny little guns that obviously do less damage...
0:47:53.3 Rhiannon: Exactly.
0:47:54.8 Peter: More aggressively, if not for the fact that they can be readily concealed? That's plainly obvious.
0:47:57.5 Rhiannon: Exactly, because they can be hidden. You fucking idiot!
0:48:03.6 Michael: And to the point about the evolution of arms, it's worth saying explicitly that I would rather have an AR-15 than literally anything, anything that was available in 1790, right, I would rather have an AR-15, than a cannon, than a whatever.
0:48:26.2 Peter: We have said this, you have said this, but if you gave me and you and Rhi, ARs and a couple of bags of ammo, we could have won the revolutionary war on our own. [laughter]
0:48:37.4 Michael: Absolutely.
0:48:37.8 Peter: We were sort of discussing a couple of days ago, whether the logic of this case would mean that you can't ban the civilian use of more advanced military weaponry. The question, of course, is whether historically, the use of advanced weaponry has been banned, it's a funny hypothetical, but unlike Clarence Thomas, we're not going to debase ourselves by pretending to be historians. So we were like, well, alright. We're probably not gonna talk about this on the podcast. But then a miracle, it turns out President Joe Biden, then Candidate Joe Biden during the 2020 campaign, when talking about gun laws, he made a comment that during the Revolutionary War, people weren't allowed to buy cannons. And he was just trying to make the point that at the time of the founding, you couldn't just have any powerful weapon you wanted...
0:49:27.2 Rhiannon: Sure.
0:49:27.3 Peter: Right? Yeah. But then some people fact-checked it and they went to a bunch of historians, including some left-leaning historians for the record, like a friend of the podcast, Kermit Roosevelt, was asked about this.
0:49:39.9 Rhiannon: Yes.
0:49:41.9 Peter: And they were all basically like, no, actually, we think you could own a cannon at the time of the founding, we think that civilians could own a cannon. Now, keep in mind that cannons were one of the more powerful weapons of the era, which means that by the logic of this opinion, the Second Amendment should allow a civilian to purchase armed predator drones directly from Lockheed Martin. Now, to be clear, I don't think that the court would actually allow this to happen, I think if confronted with the question, they'd suddenly get very practical and say that these are unusual and dangerous weapons that can be regulated. But by the logic of the majority opinion, we should probably be able to head on over to raytheon.com and buy an advanced surface-to-surface missile system.
0:50:28.3 Rhiannon: I want my Scud missile.
0:50:31.5 Peter: Yeah. If you're following, we have trapped Clarence Thomas in a box of logic, either let us buy advanced military weapons or admit that you agree with Joe Biden.
0:50:45.7 Rhiannon: Got his ass!
0:50:49.0 Peter: The only thing that stops a bad guy with an advanced surface-to-surface missile is a good guy with an advanced surface-to-surface missile...
0:50:57.5 Michael: That's right.
0:51:00.6 Peter: Alright.
0:51:04.2 Peter: Next week, premium episode, Harriet Miers.
0:51:07.8 Michael: Yes.
0:51:08.1 Rhiannon: Yes. It's time.
0:51:14.1 Peter: The famous Bush Jr., appointee to the Supreme Court, not confirmed because she was too stupid. [laughter] We're gonna tell you all about it. Follow us on Twitter @fivefourpod, subscribe to our Patreon. Patreon.com/fivefourpod all spelled out for premium and ad-free episodes, Special Events, access to our Slack, all sorts of shit. We'll see you next week.
0:51:42.2 Rhiannon: Bye.
0:51:43.7 Michael: Bye-Bye.
0:51:46.5 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.
0:52:13.7 Rhiannon: When we were little growing up Muslim, so we didn't celebrate Christmas, so my family always had inside jokes about how we hated Santa Claus, and my Dad... My Dad, every year around the holidays would be like, "It's time to install my Scud missiles on the top of the house so that Santa never comes in."
0:52:37.3 Peter: Oh, man, you're setting Muslim-American relations back a few years with that one.