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Notes -
The other four cases I didn't get to before:
Erlinger v. United States
6-3. Opinion by Gorsuch, joined by Roberts, Thomas, Sotomayor, Kagan, and Barrett. Roberts and Thomas write concurrences. Kavanaugh dissents, joined by Alito and by Jackson in part, and Jackson has another dissent.
This case is about the application of the fifth and sixth amendments in the right to a jury. The case is over whether the determination whether several past offenses are on separate occasions or one occasion requires a jury, or whether it can be judged by a judge.
There are two main relevant background cases to the various opinions, though several others are cited. In Apprendi, in 2000, they ruled that in general, facts affecting "the prescribed range of penalties" in a way that harms the defendant must be judged by a jury. In Almaendarez-Torres, in 1998, they ruled, including Thomas, that judges could find facts regarding whether past sentencing, like checking whether they had a past conviction, without the jury needing to rule that. They disagree on how broadly these apply.
Gorsuch, writing for the majority rules that this case requires a jury. He argues that Almendarez-Torres is only a narrow exception, and seems kind of open to overturning it anyway. He addresses the practical concern that bringing up past offenses would prejudice the jury by mentioning the option of bifurcating the trial, where first they would judge innocence and guilt in the present case, and then, for the purposes of sentencing, consider whether he committed the previous crimes on different occasions. He acknowledges that jury trials are not the most efficient, but thinks that it is important.
Roberts notes in a one paragraph concurrence that in the case of violations of this, they should bring up harmless error review, where it must be considered whether any harm is actually broght about by the violation of this.
Thomas writes briefly to argue that Almandarez-Torres should be overturned. He was the deciding vote in that case, but has since changed his mind and repeatedly argued against it.
Kavanaugh dissents, with Alito, and Jackson, in part. He reads Almendarez-Torres more broadly, making it about recidivism in general, rather than more narrowly about whether cases exist. He cites all 12 circuits in agreeing that judges may decide whether they were different occasions. He brings up that the harmless-error rule will mean, at least, that people already convicted don't need to be released just because their right to a jury had been infringed, as presumably in most cases, a jury would come to the same decision, as it's often rather obvious that they were on different occasions. (Even in this case, the three felonies were committed on three different days of one week, at different locations, etc.—which definitely seems like different occasions.) It's this third part about it being harmless that Jackson refuses to sign onto, which is kind of crazy. Does she want a ton of people released, when she thinks it's right? I don't get it. Kavanaugh then spends the remainder of his opinion arguing that Almendarez-Torres should not be overruled, turning to history to argue that it's not egregiously wrong, and then also arguing that even were it wrong, even were it egregiously wrong, and it's still of little enough harm, and bad would come of it (like bringing up prejudicial matters), that, by stare decisis, it should stay. (Kavanaugh also at one point cites some of Barrett's work on Stare Decisis before she was a justice, which I found interesting.)
Jackson writes to argue that Apprendi is bad, that more should be able to be done by the judge. She turns to some history. (It should be noted that Apprendi does not strip discretion from judges in sentencing. It only requires the jury to determine which sentencing scheme should apply—the judge still often has some level of discretion, of something between maximum and minimum sentences. Apprendi only rules that the jury is needed to decide which scheme.) She argues that fact-finding at sentencing is different from what the jury does—for example, they can consider more factors—and that juries only really have to decide things about guilt or innocence, not what sentence it should receive. She also points out that judges cannot. Jackson argues that Apprendi is harmful, in that it limits legislatures' ability to lay down sentencing rules, leaving more discretion with judges. She points to as particularly sobering that there are greater racial disparities in sentencing between "similarly situated Black and White male dependents" since Apprendi was ruled, and so she concludes that it might hinder having a fair sentencing system. (My own thoughts briefly: my snap reaction was to point to racial disparities in crime, to make what she is saying laughable, but that is less obviously the case since she says that it is for "similarly situated" defendants. I would have to read the paper, but don't care enough to do so. I'm still inclined to think that it's most likely due to differences in behavior, though, if they are more or less likely to have factors that make a more or less lenient sentence better—the legislative rules probably weren't considering as much as the judges were.) Turning from Apprendi to the court's judgment in this case, she argues, like Kavanaugh, but at greater length, that it would be prejudicial, and seems to think that that would be the case even in a bifurcated trial. Jackson also thinks that there are practical limitations, because the judge is more used to considering things than juries, claiming that this is "unworkable."
Texas v. New Mexico and Colorado
Opinion by Jackson, joined by Roberts, Sotomayor, Kagan, and Kavanaugh. Gorsuch dissents, joined by the rest.
This case is a little different from others in that it isn't the result of appealing things up to the court, but the Supreme Court has original jurisdiction. This case is about the water rights of Texas and New Mexico over the Rio Grande. More groundwater has been pumped in New Mexico, which effectively ends up lowering the amount of water that Texas receives. Texas and New Mexico came to a consent agreement. The question now is whether the United States can keep that agreement from going into place.
Jackson's analysis, with the majority, is fairly straightforward: the consent agreement tries to get rid of the US claims. The United State's claims are valid, because it requires use in the Rio Grande Project and Downstream Contracts, and must supply water to Mexico. Further, it was granted a place in this in 2018, and nothing has changed. But a consent agreement can't get rid of the claims of other parties, so it should be fine.
Gorsuch argues that: first, the consent decree, in setting where it should be measured and how much water to be delivered, is consistent with the Compact. Second, "the consent decree does not impose any new improper duty or obligation on the federal government or deny it to the ability to pursue any valid claim it may have." That is, it does bind the federal reclamation authorities in their use of water, but it does the same thing as they have been doing for decades, so this can't be improper, and the government doesn't argue that it would prevent it from doing anything that it needs to. It also doesn't get rid of claims from the federal government. He accepts the recommendation to "dismiss them without prejudice"—that is, so they can be relitigated—which Gorsuch says is appropriate and the preferred way to address remaining questions after an interstate pursuit. (Recall that, because this was a case between states, this is part of ordinary jurisdiction. Dismissing them without prejudice would allow them to go through lower courts, instead of straight to the supreme court.) He cites another case to back up that dismissing without prejudice is fine. Gorsuch argues that the majority is wrong that this would dispose of federal claims, that they show no reason not to follow their ordinary practice in original jurisdiction cases, they do not really show in what capacity the US has claims, that the majority ignores the usual water law jurisprudence in that the federal reclamation projects are supposed to comply with consent decrees, and that it doesn't follow the principles of consent decrees, because this compact grants what the US had originally sought in this case. Gorsuch then argues that the majority is wrong in its turn to the majority's past admittance, as they were asked in the 2018 case not to reach the question then as to whether the US could independently bring claims, and that the reasons that they had taken the unusual step of allowing them to participate then no longer apply.
I found Gorsuch pretty convincing. As a side note, it's not clear to me why this ended up roughly along the left/right split. Are the liberals, Roberts and Kavanaugh more sympathetic to the federal government having more power in general?
Department of state v. Muñoz
6-3 conservatives vs. liberals. Barrett's opinion, joined by all conservatives but Gorsuch. Gorsuch concurs in the judgment. Sotomayor dissents, joined by the liberals.
Sandra Muñoz and Luis Asencio-Cordero are married. Muñoz is a US citizen, and Asencio-Cordero was here illegally. There is a process for him to enter, but it requires him returning to his home country, and applying for a visa with the consulate. He was declined, claimed to be a member of MS–13. Muñoz filed to challenge the decision, claiming that she has a right to live with her spouse, protected by "liberty" in the fifth amendment, that the visa denial "deprived her of this interest, thereby triggering her right to due process; the consular officer violated her right to due process by declining to disclose the basis for finding [her husband] inadmissible; and this, in turn enables judicial review, even though visa denials are unreviewable."
Barrett argues that that fails at the outset: there's no right to bring her noncitizen spouse to the United States. Some relevant background she gives: visa denials are generally nonreviewable, with the exception of when it is alleged to burden the constitutional rights of a U.S. citizen (hence why Muñoz is the one to bring up the challenge), but even then, it's constrained, as the courts can only look at whether they gave a "facially legitimate and bona fide" reason for denying it (under Mandel), not checking whether it's right. The question, then, is did this burden any of Muñoz' rights here.
Under the due process clause of the fifth amendment (note, not the fourteenth amendment), due process is needed before deprivation of life, liberty or property. This includes "heightened protection against government interference with certain fundamental rights and liberty interests." But unenumerated rights of this sort—that is, substantive due process—need, per Glucksberg, "a careful description of the asserted fundamental liberty interest" and it protects only those rights "objectively, deeply rooted in this Nation's history and tradition." The claim here, as formulated by Barrett, is "the right to reside with her noncitizen spouse in the United States," though this is articulated less distinctly by Muñoz. Muñoz asks only for a right that "cannot be unduly burdened without procedural due process." Barrett describes this as unique, "a substantive due process right that gets only procedural due process protection." Barrett thinks that Muñoz fails the second step, as this is not "deeply rooted in this Nation's history and tradition." She cites Madison saying that immigration was "of favor [and] not of right," (Edit: I've since seen something saying that this was not a very strong quote from Madison, as it was in a hypothetical) and cites also various acts which made throughout the country's history which do not have any exception for spouses. Barrett concedes that several acts do involve making it easier for spouses, but rejoins that this is not as a right, but as "a matter of legislative grace. She cites especially Knauff, where the court upheld denying a wife entry, with no hearing given, and the reason confidential.
Further, the right would be odd: a right to intervene in someone else's legal proceeding? Could a spouse challenge a prison sentence, or a deployment overseas? Barrett exposits O'Bannon to show that the court has ruled in the past that indirect burdening of rights do not prevent governmental action. Barrett finishes by explaining Mandel, which had been cited by the pro-Muñoz side. Mandel had involved some professors challenging under the first amendment a visa denial of a Marxist, who came to speak. SCOTUS then said that because they were given a "facially legitimate and bona fide reason," for denying it under the specific provision, "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." Barrett clarifies that Mandel's citation is actually about avoiding having to adjudicate a question of statutory interpretation, not about procedural due process.
Gorsuch argues that the constitutional questions should not be under discussion, as the information, which is what Muñoz asked for, has been given, and so there is no need.
Sotomayor opens by citing Obergefell. Rather than framing it as a more narrow right, she frames the question as about the right to marry—whether this is a burden of Muñoz's marriage rights. She claims that the majority's claim in Dobbs v. Jackson that that case did not undermine other substantive due process is evidently false, by this result. In their going through the history, Sotomayor dwells more on the entire process that led to this case, with the husband leaving the country, while Barrett had focused more narrowly on the application to reenter (Barrett critiques some of what the dissent does as just going after immigration policy and the competence of immigration officials, which is not something for SCOTUS to judge). Sotomayor exposits the marriage rights given in past precedent. (Among which, she chooses, for some reason to cite Roe v. Wade) She notes, citing Obergefell, that the marriage rights are in these cases evaluated expansively, not as separate individual rights, as Barrett did in this case. (E.g. Loving is about the right to marriage, not to interracial marriage.) She takes it as a given that Muñoz' rights are burdened, as in Loving and Obergefell, the couples were not bound to stay in the places where their marriages were, to that point, legal. Sotomayor argues that Mandel grants Muñoz the "substantive due process right that gets only procedural due process protection," as Barrett characterized it, and so she is entitled to a "facially legitimate and bona fide reason." Sotomayor argues that the majority's concerns about prisons, or removal proceedings, would be limited by the rights already inherent in those persons, and so this ruling would have no effect, unlike this case, where the husband has no due process protection. Sotomayor finishes by turning to Knauff to point out the larger context: public outcry, bills from congress, and eventual admittance. (Barrett responds in a footnote that Knauff was still "good law" that has been "repeatedly affirmed.")
The most meaningful response to the dissent from Barrett is footnote 9, in full:
Assorted thoughts: I think Thomas is opposed to substantive due process altogether; I'm surprised he didn't bring that up. This case is sad; it feels like the people got screwed over. Also, this didn't really belong in the summary above, but at one point Sotomayor included the word "Latinx" in a quote, which was silly.
United States v. Rahimi
8-1. Opinion by Roberts, signed onto by all the justices but Thomas. Sotomayor (joined by Kagan), Gorsuch, Kavanaugh, Barrett, and Jackson all file concurrences; Thomas dissents.
Yes, that's seven people writing, all but Alito and Kagan. The case is about whether prohibiting individuals who are under a restraining order for domestic violence may be prohibited from possessing a firearm. It is especially interesting for the jurisprudence of the various judges and their attitude towards history and originalism.
Rahimi had a restraining order put on him due to domestic violence. (And it's pretty bad: including threatening to shoot his girlfriend.) The restraining order made it illegal to possess a firearm. Rahimi afterwards committed at least six (nonlethal) shootings, and was indicted for possessing a firearm despite being under that restraining order. He here argues that such a restriction is unconstitutional under the second amendment.
Two years ago, Bruen ruled significantly expanded gun rights, striking down New York's "may-issue" carry permitting laws. Moreover, and more significantly for this case, Bruen changed the governing principle from a two-part test to historical arguments. That is, Bruen argued that the proper lens is not by looking at various competing interests, but looking simply at what the right contained in the second amendment involves, and doing so by looking at historic laws around firearms. Likewise, other courts are to subsequently judge gun laws along the same lines: is this in some way infringing upon the second amendment, or would this right be understood as an exception, with the rule of judgment being historical.
In this case, then, the court attempts to rule in accord with Bruen, though with some dispute over how exactly to do so: the author of Bruen, Thomas, dissents against all the other justices, as they, including those who agreed with Bruen, apply it to this case, while most of them present their own arguments giving their views of constitutional analysis and history.
Alright, let's get into it.
After going briefly over the facts of Rahimi, Roberts turns to interpretation of the second amendment. Having explained that the Second Amendment "is not unlimited" (quoting Heller), he explains the bar: constitutional text and history, and, as per Bruen, examination of the historical tradition of firearm regulation. He clarifies that these do not make there to be "a law trapped in amber" (which iconic phrase four of the five concurrences go on to cite). More regulations are permissible. The correct analysis involves looking at "the principles that underpin our regulatory tradition," and so judges are to look whether the law is "relevantly similar," "applying faithfully the balance struck by the founding generation to modern circumstances." Both why and how the regulation burdens the right are central. Finding historical regulation does not require that there be a "historical twin," but it must be analogous. All this was an exposition of Bruen.
Now, in application:
Rahimi challenges the section 922(g)(8) on its face. That is, the defendant must "establish that no set of circumstances exists under which the Act would be valid," so, to defeat Rahimi's challenge, it only must be constitutional in some application. In this case, it is constitutional as applied to Rahimi. Section 922(g)(8)(C)(i) makes possession of a firearm illegal if the restraining order says that he "poses a credible threat to the physical safety" of a protected person.
Roberts turns to look at the history: while there existed firearms regulations in England, by the time of the founding, these were mostly, but not entirely gone. There were still regulations against people threatening others. They were often done through non-firearm specific law, such as prohibitions on fighting, or suits against people who threatened others. But in the time frame that all agree is relevant, there were two "legal regimes" targeting firearms violence: surety laws, and affray laws. Surety laws could be demanded by private citizens, where an individual could be obligated to post a bond, which would be forfeit if they failed to keep the peace. In their application to firearms, someone with reasonable cause to fear could complain to the judge, who could, if he judged cause, summon the accused, and require a bond for up to six months, of someone who went about armed with any "offensive and dangerous weapon". The person could get an exception if he needed them for self-defense or "some other legitimate reason." The second sort of laws were affray laws, which (besides some prohibiting fighting) prohibited outright "riding or going armed, with dangerous or unusual weapons, [to] terrify the good people of the land."
From these, Roberts draws the principle that "When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed." In this case, Section 922(g(8)(C)(i) applies to those threatening others' physical safety, and unlike the law struck down in Bruen, applies only to demonstrated threats of physical violence, not just anyone. Further, like the surety laws, Section 922(g)(8)'s restriction is temporary, and the penalty is less severe than the affray laws' imprisonment. Roberts goes on to address how the surety laws are different in relation to this instance than in Bruen, where they were not a good analogue to the regulation there struck down.
Roberts addresses Thomas' dissent and the Fifth Circuit, which comes to the opposite conclusion. He says that Thomas accepts the "why", but objects to the "how." Roberts notes that a historical twin is not necessary, and that the fifth circuit did not treat that it was a facial challenge correctly, looking at the law considering cases where it might be more constitutionally questionable, instead of at the most constitutionally sound ones. Roberts also rejects the Government's argument that Rahimi may be stripped of his weapons merely for not being responsible.
Now to Thomas, to give the contrasting view, before we turn to the evaluation from the concurrences. In his opening section, he describes the regulation as fairly broad: not requiring that a person has actually committed a crime of domestic violence, not from a conviction or criminal history, not distinguishing "contested orders from joint order", without due process, as though there is process for the underlying restraining order, the firearms prohibition itself has not process. And the prohibition has sizable penalties.
Thomas gives his own recounting of Bruen, noting that "while a historical law need not be a 'historical twin," it must be 'well established and representative' to serve as a historical analogue." Further, when a regulation addresses a long-existing societal problem, the lack of a similar regulation addressing the matter, or a regulation addressing the problem through "materially differnt means" could indicate unconstitutionality.
Thomas argues that there is no evidence that it is consistent with the country's "historical tradition of firearm regulation," but rather they were addressed through the "materially different" surety laws.
All can agree that the regulation goes after something protected by the Second Amendment's text, as it prohibits possessing or using firearms. So then it is necessary that the government show that it's fine anyway due to the historical tradition, which, Thomas argues, it fails to do. Thomas runs through the various claims of the government that restrict firearms. First, he addresses English precedent, which are not relevant because the Second Amendment originates in resistance to these English laws: because of their use, Englishmen came to want to keep arms, and, at the time of the Glorious Revolution, secured to Protestants a guarantee against disarmament (Speaking from my own Protestant self, obviously the correct conclusion from this is that only Protestants should be allowed to be armed.). And so it would be "passing strange" if the very laws in resistance to which the tradition leading to the second amendment originated were an argument to limit its scope. But even supposing that they were, they aren't the same, because those laws were about rebellion and so forth, not private threats. Second, the government points to "historical commentary referring to the right of 'peaceable' citizens to carry arms," referring mostly to two failed constitutional proposals. But Thomas cites precedent that relying of drafting history is questionable, and points out that both of these were rejected, and in the case of Adams' proposal, caused alarm. And peaceable seems to be interpreted again in relation to rebellion, not private violence. Third, the government cites firearm storage laws that forfeit improperly stored firearms. But Thomas argues that those did not "impose a comparable burden" to the law now in question, as they allowed people to keep other, properly stored firearms and buy new ones. It still leaves the people with some Second Amendment rights, not none. And he rejects the government drawing from that that people who would not be 'responsible' can have firearms removed, comparing it to when, in Bruen, New York argued, from the history of firearms being banned in certain sensitive places, that the entirety of Manhattan is a sensitive place. And so, he concludes, the government failed.
Thomas cites surety laws as something with a common justification, that is, addressing the same issue, but a materially different burden, pointing out that they did not alter an individual's right to keep and bear arms, as he could continue to do all of that once providing a surety. But section 922(g)(8) strips it altogether. (And is sweeping, including even the constituent parts of ammunition. He also notes in a footnote that, though this isn't the issue at hand, he does not expect it would be legitimate under a commerce clause challenge.) This makes them fairly different: surety laws preserve a right and punishing subsequent infringment with a fine, versus stripping of the right, and punishing infringment with a felony, and permanent revocation of a second amendment right.
Thomas then addresses the court. He argues that Bruen, contrary to the court's portrayal, treated the surety laws as fairly different from a ban. Therefore, they do not impose an equivalent burden. Thomas argues that affray laws are different because they are fundamentally public, involving bearing arms in such a way as to "terrify the good people of the land," and so did not cover domestic violence. They also have a non-analogus burden, in that they only prohibit "dangerous and unusual weapons" carried in a "terrifying" manner, in public, whereas 922(g)(8) is far more expansive, banning all Second Amendment-protected activity. Thomas rejoins to Roberts' argument that they are lesser than imprisonment, and so a lesser burden, by saying that that highlights a difference: they penalize past behavior, versus seeking to prevent future behavior. And they occur with far more process, versus merely a hearing.
Thomas argues that the Court's "stich[ing] together" the two is illegitimate, as there must be a single historical law. He cites Bruen, saying that the two regulation must be relevantly similar, and says that what the court does "defeats the purpose of historical inquiry altogether. Since imprisonment, which involves disarming, existed, the government will always satisfy the comparable-birden requirement, so they now only need to find a law with a comparable justification. And so, he argues, laws fining some behavior could, by such stitching, justfiy disarming someone from that behavior, which is a "regulatory blank check" that the Second Amendment is meant to prevent.
He also rejects the government's attempt to make things about whether a citizen is "responsible" and "law-abiding." He also rejects the government's suggested dangerousness test, which is not historically viable as he argued previously. He cites the government's evidence as evidence against approaching it based on "generalized principles," pointing to the colonial disarming of "classes of people" considered threats, which he analogizes to the seizure of firearms from freedmen after the civil war. Citing such examples, he argues that their admittance would allow for the disarming of minority groups now.
Thomas closes by saying that states can still prosecute those who use a firearm to threaten physical violence, but that this law is not consistent with the second amendment.
To summarize briefly, then, Roberts was more in favor of interpreting laws broadly and accepting principles, while Thomas was more narrow and needed closer and more complete analogues.
Let us, then, turn to some of the concurrences, to hear their various opinions. First, Sotomayor's (which Kagan joined). To quote, "Even under Bruen, this is an easy case," agreeing with the court that disarmament of those posing a credible threat is permissible, from the surety and affray laws, taken together, and that disarmament is permissible. She highlights that Roberts referred to finding the "principles" behind the regulatory tradition, and characterizes this as clarifying for courts the way to interpret Bruen: by means of principles. She rejects the dissent's approach, in its "strictest" interpretation, "viewing any basis for distinction as fatal." Sotomayor thinks that the societal problem has materially changed (in that guns are more dangerous now), and that we have changed in what we consider necessary, including, for example, the law being "more likely to protect husbands who abused their spouses than offer some measure of accountability." (I should note, since I don't think I did before, both Roberts and Thomas had cited that surety laws could be granted to women against their spouses in the case of domestic violence.)
With that note of gladness at the less strict way in which Bruen is interpreted, Sotomayor then expresses her displeasure with Bruen's historical approach overall: she would view the Second Amendment as allowing "legislators to take account of the serious problems posed by gun violence," not just looking at the past. She would prefer the means-end scrutiny, which the court "regularly use[s]…in cases involving other constitutional provisions." That is, courts considering the State's interest in preventing gun violence, the effectiveness of the contested law, the degree of burdening the Second Amendment right, and less restrictive alternatives. This was what happened for the second amendment prior to Bruen. In this case, the Government has an interest in keeping firearms from domestic abusers (and she cites that they are more likely to murder). Section 922(g)(8) is tailored specifically to guns, and so should be acceptable at any level of scrutiny.
Jackson writes also to complain about Bruen's history-and-tradition test. She notes Robert's brief comment that some court's have misunderstood, saying that "the blame may lie with us, not with them." Jackson notes that legal standards are not in a vacuum, but must be applied by lower court's. And so, the court should keep in mind the common-law tradition of "promoting clarity and consistency in the application of our precedent." And so, confused courts should be a reason for concern. She cites in a footnote twelve instances of judges in lower courts complaining about it. She contrasts that with "relative harmony" prior to Bruen, though she characterizes Heller, which first granted individual keeping of arms for self-defense, as somewhat disruptive. As Bruen rejects the two-step method that followed in favor of a one-step historical approach, the legislators must find and produce, and courts examine "troves of centuries-old documentation" for evidence. She casts doubt on their qualification to do so. She thinks further that this is a good example of such confusion: that the Fifth circuit had come to the opposite conclusion as SCOTUS did. She characterizes the evaluation of all this as "exceedingly difficult." It depends on what sources, and what level of generality, which have not been clarified, as well as several other questions. (In another footnote, she says that the founders new that new solutions to traditional problems would be needed, and so adopted principles allowing for flexibility.) And so she thinks that there are serious issues with application of these, which makes this a bad standard. (But agrees that the majority, in this case, applied it accurately.)
Now to the three concurrences of the three Trump appointees, which articulate three distinct judicial philosophies.
Kavanaugh writes a 24-page concurrence "to review the proper roles of text, history, and precedent in constitutional interpretation." "The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood." "In many important provisions, the Constitution is a document of majestic specificity with strikingly clean prose." He cites over 20 examples. One is the four-year presidential term. In cases where the text is clear, "resort to collateral aids to interpretation is unnecessary and cannot be indulged in." But others are more vague, and not "specifically worded but…couched in general phraseology." This is especially the case for "the broadly worded or vague individual-rights provisions," like the first or second amendments. It has long been recognized that there are exceptions: in the case of the first amendment, there are restrictions in a few limited areas, such as obscenity, defamation, fraud, and incitement. Likewise, the second amendment was recognized by Heller not to be unlimited; there can be restrictions on manner and purpose.
One question, then, is how to interpret such provisions. He notes in a footnote that this can be framed in two ways: as "(1) determining the exceptions to a constitutional right or (2) determining the affirmative scope or contours of that constitutional right." They are ultimately the same question, as they look at whether the constitutional right permits the law, but he prefers here to refer to them as exceptions, to highlight what the baseline is: protection of the right. Aside from precedent, there are two main ways to decide: history, or policy. History looks at things before and after ratification to help discern the meaning and principles embodied in that text. Policy depends on the philosophy or policy opinions of the judge. History, not policy, is the proper guide. History has long been the thing to turn to for the court. It supplies evidence of the original meaning. It is far less subjective. It better befits the neutral judge—an umpire, not someone who fabricates constitutional meaning. So without precedent, if there is ambiguity in the constitutional text, history is the proper guide.
Pre-ratification history examines the intentions and understandings of the framers and ratifiers of the constitution and amendments. These intentions and understandings may serve to give "strong evidence of meaning," though it does not determine it. This includes history in the colonial era, "including pre-ratification laws and practices." For example, constitutional provisions match the articles of confederation, or state constitutional provisions, in which case the history of how those were understood can inform what they meant at the time of the passage of the constitution. They can also show what things do not mean, such as in the ways in which the Constitution remedies the defects of the articles of confederation. American objections to abuses of British laws and rule can inform the interpretation of the Constitution and bill of rights. Hence, English deprivations of rights in some circumstances are not good evidence that the same is true under American constitutional provisions, as the American instances were often in response to them, to prevent precisely those abuses. (Kavanaugh footnotes that English law also can provide background for provisions, as American law is derived from it, but we shouldn't assume that it's imported wholesale.) He cites also the Equal Protection Clause of the 14th amendment should be understood to prevent racial discrimination, not to incorporate it.
Post-ratification history is also relevant. When the text is vague, and pre-ratification history is "elusive or inconclusive," it becomes important. There is little to turn to otherwise, if you would avoid policy. National and state governments interpreted and applied, and these often "reflected and reinforced common understandings of the Constitution's authorizations and limitations." They can "be probative" of meaning, and the collective understanding "provide good guidance." (He footnotes that there are still questions about how to apply this, such as how widespread the historical practice should be.) "the Framers themselves intended that post-ratifcation history would shed light on the meaning of vague constitutional text." And Kavanaugh (which, I suppose is here close to an application of the very principle under discussion) points to, in McCulloch v. Maryland, where they judge a national bank permissible, they judge it could "scarcely be considered as an open question," due to the recognition of the legislatures, and exposition of the constitution by "legislative acts." Kavanaugh also cites Scalia to support his position here, saying that "traditions"—which is the term Scalia often used for it—are "paramount." And post-ratification has often been employed. (For which he cites thirty examples.) He footnotes also that history is also used for unenumerated rights under the due process clause of privileges or immunities clause, but this is "180-degrees different." There, there is no text expressly protecting it, but they are protected because the Fourteenth Amendment "specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition." (Citing Washington v. Glucksberg)
Third, Kavanaugh turns to precedent, which is "fundamental to day-to-day constitutaion decisionmaking" at both the Supreme court and every other court. The "judicial power" of article III incorporates stare decisis. "Courts must respect precedent," but it may also be appropriately overturned "on occasion." And so often there is reference to that precedent. But text and history, even in those situations matter: they determine how broadly or narrowly to read it, whether to extend, limit, or narrow a precedent, or, somewhat infrequently, when overruling a precedent, to consider how it fits with the Constitution's text and history. The text and history function as a "gravitational pull" on the interpretation of precedent. But precedent is still the first place to turn.
Kavanaugh turns to a discussion of policy: some would "uphold a law if it is a good idea; strike it down if it is not." This is not said explicitly, but is fundamentally what is happening in the balancing approach known as means-end scrutiny, or various other names. This is different from the historical methodology, and did not exist before the 1950s, and were adopted by accident, not from considered judgment. It has only been applied in some specific areas. He does not support overruling it, but does not consider it the ordinary interpretation, and opposes its expansion. (He doesn't mention it, but compare that Sotomayor had characterized it as the default.) He considers it "highly subjective," and they act more like legislators, than judges who "say what the law is." And it is ill-defined, with differences in whether there is a presumption of deference to the legislature, or to the right in question. (Though he does not mention this, recall that Jackson was concerned with applicability and consistency from lower courts.) And there is a danger of it being due to their own predilections. The historical approach is not perfect, but it is the best available.
And then he notes that interpretation is still developing for the second amendment, and that the cases in which it has—Heller, McDonald, Bruen, and now Rahimi use, in their approach, the same longstanding approach as to the interpretation of vague text in the constitution.
Upon reading this, I like Kavanaugh significantly more than I did before, because I understand him better.
Barrett writes on originalism. She points out that the Second Amendment involved a pre-existing right, and so pre-existing limits are part and parcel of it, defining the scope of "the right to bear arms" as originally understood, and agrees that looking to the historical tradition of firearm, as Bruen said, is the proper way to identify those limits. Barrett identifies the basic premise of originalism as that the meaning of the Constitution is fixed, and, in most circumstances, legally authoritative. Upon being ratified, the constitutional text is law, and "remains law until lawfully altered." The history that matters most is the history prior to its ratification, as that "illuminates the meaning of the enacted law." History postdating ratification "does not serve that function." It can still be useful, in that it can "reinforce our understanding of the Constitution's original meaning," "liquidate ambiguous constitutional provisions" ("liquidate" here meaning "make clear"), "provide persuasive evidence of original meaning", and, "if stare decisis applies, control the outcome." (Barrett here cites her concurrence in part from Vidal v. Elster the week prior—that was the trademark one, where she disagreed with the majority on the reasons why it should be allowed. Part III-B of her opinion there is the most relevant.) "Generally speaking, the use of postenactment history requires some justification other than originalism simpliciter." Barrett asserts that in her concurrence in Bruen formerly, she did wonder what time period was relevant for determining meaning, but emphasizes that she definitively does not think that "tradition, standing alone is dispositive." "Evidence of tradition unmoored from original meaning is not binding law." The dispositive sort of history plays two roles: showing how contemporaries understood the text, and "determining the scope of the pre-existing right that the people enshrined in our fundamental law. This is the way that the court uses history in Rahimi. (Barrett footnotes that original meaning controls, expectations about its application do not. Contemporary governments could be mistaken about their own rule, or might not have "fully and faithfully" implemented it. So it helps, but requires care. "Particular gun regulations—even if from the ratification era—do not themselves have the status of constitutional law.") She calls it "original contours" history: looking at history to find the contours.
Courts have wondered how general to be in their use of history. Are historical twins, or at least a cousin, needed? Or do they yield principles marking borders of the right? Barrett notes that "many courts, including the Fifth Circuit have understood Bruen to require the former, narrower approach." But she cites Bruen, where it says that "analogical reasoning" is not a "regulatory straightjacket." Challenged regulations do not need to be "an updated model of a historical counterpart" to be "consistent with historical limits." Requiring "overly specific analogues" "forces 21st-century regulations to follow late-18th-century policy choices, giving us 'a law trapped in amber,'" and assumes that they used all their power to regulate, a "use it or lose it" approach. Rather, "analogical reasoning" has regulations "reveal a principle, not a mold." That shouldn't be at a level that it "waters down he right." But it's an ordinary part of legal reasoning to draw principle from precedent. Sometimes there will be disagreement over how broad exactly. But in this case, there is the appropriate level of generality.
Now, finally, to Gorsuch. He too clarifies what exactly he sees it as necessary in the approach here, though he does not articulate as explicitly as Kavanaugh and Barrett that that is what he is doing, and articulates the philosophy more through the lens of the case at hand.
He opens by pointing out the sort of challenge: a facial one, where there must be "no set of circumstances" where it can be applied without violating the amendment. The Constitution, is undoubtedly relevant, in the second amendment. Which amendment's contours are dictated by "text and history." And so, the question in this case (as all agree that there's no textual reason why it would not apply) is about history: is it consistent with historic regulations. It does not need to be a "dead ringer" for a historical analogue, but it must show that "imposes a comparable burden on the right of armed self-defense to that imposed by a historically recognized regulation," and that its burden is "comparably justified." These are needed because the Second Amendment "codified a pre-existing right," which then carries the same scope as when it was adopted. He notes that they would have understood that there were risks, but also that it was "vital to the preservation of life and liberty." And the court does not have the "authority to question that judgment." "As judges charged with respecting the people's directions in the Constitution—directions that are 'trapped in amber'—[their] only lawful role is to apply them in the cases that come before [them]." (Note the different use of "trapped in amber" affirming that that is, actually, the case of the people's decisions in the Constitution, as opposed to Robert's saying the opposite in legal choices beyond the Constitution's.) Any changes to the Constitution are to be made by the American people. And so it is usual to cite history (citing Kavanaugh's concurrence), and this should be done with care (citing a footnote of Barrett's concurrence). He compares the right of a defendant to confront accusers, as exposited in Crawford v. Washington—there too, to justify an exception they must point to a close historical analogue. "We have expressly rejected arguments that courts should proceed differently, such as by trying to glean from historic exceptions overarching policies, purposes or values to guide them in future cases. We have rejected those paths because the Constitution enshrines the people's choice to achieve certain policies, purposes, and values 'through very specific means': the right of confrontation as originally understood at the time of the founding." Courts may not extrapolate to values behind the right, and "enforce its guarantees only to the extent they serve (in the courts' views) those underlying values." That risks letting judges get rid of the right. Likewise here, they must be careful in historic comparisons.
Rahimi's challenge, Gorsuch judges, fails because surety laws and restrictions on "going armed" were understood from the start to all the government to "disarm an individual temporarily after a judicial determination that he likely would threaten or has threatened another with a weapon." And the statute does the same for the same reasons: disarms, only after notice and hearing, for physical safety, and onlyt for so long as the order is in effect. So, at least in some applications, it does not diminish any aspect of the Second Amendment right. He recognizes that Thomas disagrees whether it is analogous to practices outside the second amendment's scope, they agree that that is only proper question for the court. At least asking the question keeps justices where they in the station they ought to be, following the will of the people; not their own. Turning to the original meaning "offers surer footing" than any other method. "Come to this Court with arguments from text and history, and we are bound to reason through them as best we can…Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule." Adhere to the original meaning. Considering the lower courts before Bruen, with their "two-step test that quickly devolved into an interest-balancing inquiry." He cites some as saying that it let judges set policy, as a black box. In one circuit, the government won 50-0, undefeated. "Perhaps judges' jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges stray far from the Constitution's promise." (I assume that is in part a shot at Jackson.)
Gorsuch also clarifies that the ruling is only that there exist circumstances where it is legitimate, because of the facial challenge: they do not decide whether people can be disarmed without a judicial finding of a credible threat. They do not decide whether permanent disarmament is permissible. They do not determine whether it may be used against someone who uses a firearm in self-defense. They do not approve laws allowing firearms to be denied to those deemed "not responsible" (noting Thomas' comment that not a single member adopts that theory.) Article 3 requires judgment only of cases; and those are not of this case.
Alright, that's all, finally. So, thoughts: First, a little on judicial philosophy. There appear to be several relevant questions:
Is Bruen's originalist history better than a means-end analysis?
Yes: Thomas, Gorsuch, Alito, Barrett, Kavanaugh, Roberts
No: Sotomayor, Kagan, Jackson
The originalist justices think that the job is, essentially, to follow faithfully what the Constitution set down, in its original meaning. The non-originalist justices think that a significant factor in interpretation of its meaning should be contemporary needs.
Should judges try to draw out principles? Or instead look purely for historical matches?
Yes: Barrett, Sotomayor, Kagan, Kavanaugh, Jackson, Roberts
No: Gorsuch, Thomas
Roberts manages to say little enough on this to get Gorsuch to sign on, on the one hand, but Thomas, Sotomayor, and Jackson all read his reference to principles as significant. I think some of this question might be to what extent one sees the right as existing simply in the set of regulations and lack of regulations applicable, as opposed to whether the regulations and lack of regulations are instead expressive of an underlying right. Thomas and Gorsuch seem to think something pretty close to the former, while most of the others think something close to the latter. I'm not certain of that, but it seems right.
Judging by the opinion in Vidal and elsewhere, Barrett is significantly less comfortable with history as conclusive evidence in itself for the constitutionality of a thing, though she is certainly in favor of history. But for her, history, with few exceptions, must be in order to exposit meaning; not proof in its own right. I wonder whether we're going to see a long string of dissents or concurrences in part after the style of Vidal.
She would disagree with at least some of what Kavanaugh writes concerning post-ratification history. Gorsuch's cites Kavanaugh's concurrence on the use of history, including post-ratification. But I don't know that that indicates that he signs on. This gave me a sense of Kavanaugh being a good bit more principled, rather than just pragmatic, than I ever had a sense of before.
Additionally (now that I'm looking there again), Kavanaugh's concurrence in Vidal, which Roberts joins, seems mildly to support looking for principles in things, instead of plain application of history.
Gorsuch's disagreement with Thomas here is fairly narrow. His vision of what an analogue is is slightly broader, but I don't see much else of a divergence. It's narrower than that found by many of the other justices.
Overall, this case gave me a much, much better sense of how the justices approach these things. Which philosophy do I like best? I think probably Barrett's, but I also get Gorsuch's concern that turning to principles leads to reduction of rights. I'm sad we didn't get to see Alito, and that Roberts was only one that he had to get people to agree to, instead of just purely whatever he thought. But I'll happily take a much better view of the way six of the justices approach issues.
More generally, it would not surprise me if we see more challenges of this statute. I'm pretty sure Gorsuch would approve of striking it down in other cases. It is less clear to me what the other justices would do. I am glad for the court's reputation that it went this way. People would not like the headline "Supreme Court rules domestic abusers entitled to violent weaponry" or some such.
Also, wow, all these took quite a while to read through and write up. Rahimi was worth my figuring it out in more detail, though.
I think it's important to emphasize just how terrible the facts in Rahimi were. I know all the gun rights groups have hated it since it first popped up on the radar a couple of years ago (notice how none of them filed amicus briefs in support of cert, and how at least one or two of them wrote briefs trying to convince the Court to rule on non-2A grounds).
It's really unfortunate that this is the gun case SCOTUS decided to actually take: the case with an absolute scumbag plaintiff who should be in prison and a public defender who was simply trying anything he could to help his client rather than an activist team who planned the challenge from the ground up and actually know what they're doing. It's especially odd/frustrating that SCOTUS took this one because they couldn't even provide a single coherent statement of the law. Fractured 7-separate-opinion decisions are never looked kindly upon by posterity.
The Supreme Court took this case because they wanted to backpedal on guns. Except for Thomas, they do not want ordinary people to be able to go into a gun shop, buy a gun, strap it to their waist or put it on a sling, and go into a major city locked and loaded. To the other conservatives, the legal arguments are just a high-status game they're well-compensated for playing; they don't want them to make a difference on the ground because it's viscerally obvious to them that gun control is good.
Note there's another landmark case which had an absolute scumbag plaintiff. That's Miranda v. Arizona. In that one, the Warren court DID want their decision to make a difference on the ground. So they took a case with a bad plaintiff and said "See, even this asshole gets his constitutional rights". The Roberts court won't do such a thing.
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Yeah, the guy is legitimately terrible, and this is essentially the best possible case for those in favor of gun control.
I'm not sure how broad the implications are. The court only ruled that the statute was fine in some applications, not necessarily in general, and they didn't really address due process questions, as they weren't asked to. (Or, as Thomas pointed out, the commerce clause, but I wouldn't expect Roberts and Kavanaugh to be willing to start radically curtailing the extent of the commerce clause to what it actually means). It's entirely possible that we see more cases on the exact same provision.
Much of the frustration here is that we've had years of better cases on the exact same provision, and Gorsuch didn't even write a dissent from denial of cert. There's some firearms people who are really hoping that SCOTUS just wanted to have a Bad Guys Can't Own Guns case first, but it's very hard to see that as anything but copium, and I don't think even the copium will survive either if Range (where the lower court found that a complete ban on possession for a 95 conviction for food stamp fraud was found unconstitutional) gets GVR'd with a dissent this week or the next.
I think maybe this opinion leaves a "Second Amendment +" case, where someone brings a 'normal' right case that also includes gun ownership, and gets more deference than they would under the traditional guns-are-always-a-compelling-interest bullshit, a la Caniglia, but Roberts' decision is just way too permissive in its writing, and I don't see it allowing any meaningful circuit split to develop for them to review with the text it just handed the coastal circuits, and the court will always have an excuse without a circuit split.
Mai is settled law, today; Roberts just saved himself from having to write the opinion.
((EDIT : And today's social media censorship case dodging any substantiative questions by complaining that the plaintiffs didn't bring a time machine to prove standing, and the leak of a similar punt for the EMTALA case, point the same direction, point similar directions.))
Called it, at least on the GVR. We'll see how the copium goes.
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The court has a way of handling those: cert denied. If the Fifth Circuit actually gets defiant, they'll reverse the decisions without argument.
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