Thought y'all might find this article interesting. Quite a few wins for gun owners' here lately.
https://www.wsj.com/opinion/thomass...7R&reflink=desktopwebshare_permalink Court watchers pay attention to what Justice Clarence Thomas writes, even in solo dissents. For almost 35 years, he has been on a mission to resurrect, clarify and strengthen neglected constitutional principles. Nowhere has he had greater success than in re-establishing the right to keep and bear arms. Wolford v. Lopez, this week’s Hawaii ruling, was written by Justice Samuel Alito, but is Justice Thomas’s triumph.
Younger Americans might not appreciate how long gun owners lived in constant worry that their rights would erode into nothing. By 2000, numerous circuit courts had held that the Second Amendment was only a “collective” right, bound to militia service. The federal government had banned whole categories of firearms. States and locales enacted their regulations on permits, specific guns and ammunition. Municipalities sued gun manufacturers hoping to drive them into bankruptcy.
Those fears began to recede in 2008 with D.C. v. Heller, in which the high court held that the Second Amendment protects an individual’s right to own firearms. That groundbreaking decision, written by Justice Antonin Scalia, didn’t come out of nothing. Scholars point to a brief solo concurrence 11 years earlier, in Printz v. U.S., which held the federal government couldn’t compel state officers to conduct background checks, on grounds it violated the 10th Amendment’s “anticommandeering” provision. Justice Thomas asked: Wasn’t there a “substantive right safeguarded by the Second Amendment”? Shouldn’t the court at some point “determine whether Justice [Joseph] Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic’”?
In Heller, the court did. Two years later, it held in McDonald v. Chicago that the right to bear arms limited the power of states too. Constitutionalists felt they were on a roll.
But liberal jurisdictions argued that the government’s interest in safety justified a broad array of rules about what types of guns can be owned, by whom and under what circumstances. Courts began rubber-stamping existing and new bans and regulations. The justices stayed mute, the majority apparently having lost its nerve to go further. The court was almost completely dark on guns for 12 long years.
Justice Thomas wasn’t. He never missed an opportunity to chide his colleagues for their failure to apply their own precedents. In 2015, he knocked his colleagues’ failure to hear a challenge to a San Francisco rule requiring that handguns be stored in locked containers. He issued another dissent the same year over a so-called assault-weapons ban. In 2017, he rapped the court for dodging a California law restricting concealed-carry permits. In 2018, he issued his most famous scolding, decrying the court’s failure to take up California’s 10-day waiting period. He famously declared the Second Amendment had become a “disfavored right in this Court” en route to becoming a “constitutional orphan.”
These dissents rallied gun owners and constitutional groups, who piled on the court. They also helped educate a new generation of conservative justices operating in a post-Heller environment. Justice Thomas’s campaign bore fruit on June 23, 2022. He wrote the 6-3 decision in New York State Rifle & Pistol Association v. Bruen, which established standards for evaluating the constitutionality of gun laws. Henceforth, any modern gun law must be consistent with the country’s historical tradition of firearm regulation.
Justice Alito’s opinion in Wolford shows how powerful that Bruen standard is. Hawaii knew the rules but tried to be clever. Hawaiians were finally allowed to get permits to carry concealed weapons. The rub? A state law made it near impossible to carry them anywhere by flipping the common-law rule about accessing private property. Under the old reading, anyone can enter places open to the public like gasoline stations, convenience stores, restaurants, or coffee shops with a gun—unless the owner expressly prohibits it. Under the new read, you were prohibited from entering said sites with a gun without express authorization.
The Wolford opinion demonstrated how unsupportable this is under Bruen. It laughed off Hawaii’s citation of colonial and early state laws prohibiting the hunting of game on someone else’s property—noting this was targeted at unauthorized hunting, not guns. It made short work of a random 1893 Oregon law about guns in “enclosed premises.” And it skewered Hawaii’s (embarrassing Hail Mary) justification based on an 1865 Louisiana statute designed to disarm black citizens: “Hawaii’s claim that this tainted artifact from Louisiana’s Black Code illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”
But the court can be taken seriously now. That’s the import of Wolford. This was the Supreme Court providing a case study in the scrutiny it expects lower courts to use in weighing gun laws under Bruen, and a warning that legal shenanigans at the expense of a disfavored right won’t be tolerated. That’s been a long time coming. Justice Thomas, take a bow.