This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
It appears that by validating laws against "going armed in a way to spreads fear", they have sub silentio overruled Bruen in its entirety. But only sub silentio, so the Second Amendment is still valid for debate purposes, just not for bearing arms.
I don't share the blackpilled reading of this case that I'm seeing here. The vast, vast majority of gun owners have nothing to worry about from the narrow holding of this case. Even defendants who are similarly situated to Rahimi can plausibly argue for a different result in future cases.
First, Rahimi raised a facial challenge to the law. The only question before the Court, therefore, was whether the statute was unconstitutional in every single conceivable application. This means any future defendant may still raise an "as-applied" challenge to the law and argue that it shouldn't apply to their case. Since Rahimi's case was basically as bad as it could possibly be, it should be relatively easy to distinguish.
Second, it seems Rahimi did not contest the evidence of his numerous violent crimes. Even if a future defendant is accused of similarly egregious conduct, if he asserts his innocence, that alone would meaningfully differentiate his case from Rahimi's. To the extent gun owners are worried about "red flag laws" eroding due process, that issue was not addressed in this case, so it is fair game for a future challenge to the statute. The Court explicitly makes this point in footnote 2.
Third, the Court is careful to explain that historical gun regulations like the "surety and going armed" laws presumed that people had a right to carry guns in public. Their prohibitions on gun possession were limited to temporary disarmament of specific individuals based on a particularized judicial determination of their dangerousness. Meaning legislatures cannot use those cases, or Rahimi, as an excuse to prohibit broad swathes of the public at large from possessing or carrying guns.
Fourth, the Court explicitly rejects the government's argument that the 2A only applies to "responsible" citizens, whatever that means.
In no way does this case overrule Bruen, sub silentio or otherwise. The historical "going armed" laws, as already addressed in Bruen, did not prohibit public carrying of weapons for self-defense, so merely "validating" such laws (their validity was never challenged, just the degree to which they supported modern regulations by analogy) won't change anything.
I know progressive judges in the lower courts will grasp at any straw to ban guns, but that was already true before this case, and the Court expressly leaves open enough roads to challenge anti-gun laws that I don't see this opinion as realistically improving the lower courts' ability to hollow out the 2A.
I totally agree. But I think there's a subtle additional thing going on, similar to what happened with the left wing courts in the 1960s. There you had an opinion like Griswold whose central holding held on for a while (at least 60 years) but whose reasoning and implied test did not survive. I don't think we have a good word for this -- a case whose holding stands but whose reasoning and methodology were replaced later. It wouldn't be right to say it was overruled or distinguished.
So by analogy, I think there is a strong majority on the Court for the central holding of Bruen (or the Bruen/McDonald/Heller line, if you will) but there may be a subtle shift in the specific test that it endorsed. I don't think there's 6 votes for a balancing test or anything like that, but I think there a few pro-Bruen-the-holding votes that would rather endorse a different test than the historical test that it laid out.
If I'm playing legal realism, I think the right wing of the court made a mistake assigning Bruen to CT rather than Roberts or Alito just like Griswold should not have been to Douglas. Not because I think CT is the lesser jurist, just because his opinion doesn't command 6 votes for its method, only its conclusion.
EDIT: Allegedly Roberts and Kav wouldn't even sign on to the original Bruen until it was changed. We'll never know what was in the draft or what the changes were, but it seems to me that having either Roberts or Kav author the majority opinion (to which CT could concur in judgement-plus-I-would-go-much-further, as he does) would have been better.
[ And if I may, ping /u/gattsuru for his usually insightful thoughts. ]
Griswold made contraceptives legal. Contraceptives are still legal in all 50 states. Bruen/McDonald/Heller did nothing. In New York City, you went from not being able to carry a gun because you couldn't get a carry permit, to perhaps being able to get a carry permit (though it's not clear that they're actually issuing them) but it no longer allows you to carry a gun. Griswold may have suffered some damage; Bruen was dead on arrival and Rahimi is its quiet burial.
More options
Context Copy link
More options
Context Copy link
No? You don't think every appeals court save the Fifth Circuit is going to read into the court's endorsement of the historical significance of laws against "going armed the the terror of the public" justification for a general prohibition on bearing arms publicly? Because I think it's pretty clear from recent history that it's exactly what they'll do.
The court said that the prohibition was justified if the court made a finding that the person subject to the injunction had committed domestic violence or if the court enjoined him from committing domestic violence (even if he had not committed it). That's sufficient to cover essentially all applications of the law. A court orders a man (and yes, 90+% of the time it will be a man, except in jurisdictions where such injunctions are automatically reciprocal -- and the courts will indeed carve out an exception for that case, if it comes up) to not do something already illegal, and he loses his Second Amendment rights.
The appeals courts will simply split hairs and say that those laws support not a complete prohibition, but whatever prohibition is on the table in the given case. Can't carry openly in one case (terrifies the public). Can't carry concealed in another (carrying concealed indicates you're up to no good). Can't carry this or that gun (too terrifying). Can't carry more than so much ammo (terrifying again). And the Supreme Court will respond to this with cert denied, as they have been doing.
Edit: When I, a citizen of the United States and the state of New Jersey, can walk into a gun store, buy a modern handgun and rifle, and carry both of them, loaded, across the state of New Jersey and to my office in New York, using either my own private transportation or public transportation, without running afoul of any laws, THEN I will believe the Supreme Court takes the Second Amendment seriously. Not until then.
Well, it turned out that putting all the “conservative” Catholics on the Supreme Court actually meant they only cared about that one Catholic issue (abortion) and issues related to that issue (religious freedom) and not, in fact, any other conservative policies.
The right confused the zealotry with which devout Catholics hated abortion and were willing to do anything, study anything, join any political movement and climb any hierarchy to restrict it for actual commitment to any other aspect of American conservatism. Now it turns out they’re just libs who hate abortion and have a mild (though likely not enough to rock the boat) distaste for gay marriage, but are otherwise pro-DEI, pro-immigration, pro-gun control and so on. Shocked Pikachu indeed.
Ah, Gorsuch is the most consistent conservative on the court.
More options
Context Copy link
It turns out that, save Justice Thomas, and perhaps Eugene Volokh, there are no elite conservatives in the field of law.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link