Commentary
The Supreme Court’s decision in New York State Rifle and Pistol Assn. v. Bruen (
pdf) was a signal victory for the right to keep and bear arms. Reading Justice Clarence Thomas’s opinion for the court is a rich journey through constitutional law and history. The opinion may become a SCOTUS classic.
However, the case has implications more important still—implications that go well beyond the Second Amendment. Amid all the noise surrounding the court’s holding, you probably won’t read about those implications anywhere but here.
First, though, I’m delighted to report that Thomas gave due credit to the work of
Dave Kopel, my Independence Institute colleague who is probably the leading Second Amendment scholar on the face of the planet.
Challenging ‘Progressive’ Constitutional Method
Most of the Supreme Court’s constitutional-rights precedents date from the 20th century, when “progressive” justices dominated the bench. Those justices usually didn’t pay adequate attention to the historical meaning of the Constitution’s words and phrases. They usually didn’t inquire, for example, into the historical meaning of terms such as “the freedom of speech.”
Instead, they usually applied balancing tests. An early example was the 1944 case that upheld the mass detention, without charges or trial, of tens of thousands of American citizens of Japanese extraction—a case I
discussed in an earlier column for The Epoch Times.
The Constitution says explicitly that the government shall deprive no person of “liberty ... without due process of law.” It also says that before the writ of habeas corpus (the traditional remedy for unlawful imprisonment) is suspended, certain conditions have to occur. Yet, in Korematsu v. United States (
pdf), the court balanced away all those rights. It did so under what we now call the “strict scrutiny” test: Government may override even an explicit constitutional right with a law “necessary” to further goals that the justices think are strong enough.
After Korematsu was decided, the justices applied this balancing approach to free speech, free exercise of religion, and other constitutional liberties. Occasionally, as in some pornography cases, this approach shielded conduct the Constitution didn’t really protect at all. More often, the balancing approach privileged government over individual citizens.
As for rights that liberal justices didn’t think as important as free speech (such as economic liberties), the court applied balancing tests that empowered government even more.
To be sure, some parts of the Constitution do call for balancing. One example is the Fourth Amendment ban on “unreasonable” searches and seizures. But most parts of the Constitution reflect the document’s own balances and compromises. There is no call for justices to replace those balances and compromises with their own notions of what is and isn’t important.
Despite all the misleading ballyhoo about the Supreme Court now having a “conservative majority,” the current justices generally have continued to apply the precedents and methods invented by their liberal predecessors.
