At Slate, Saul Cornell (Fordham – History): The John Roberts Balancing Act Is Back, at Least for Guns. From the core of the argument:
Two interpretations of Bruen’s mode of analysis had emerged among federal courts. Some judges followed the maximalist version, a framework Thomas has now advanced in his Rahimi dissent. This approach relied almost exclusively on statutes, ignoring or misinterpreting the widespread use of common-law methods of protecting the peace and public safety. For these judges, answering the question of whether a law was constitutional involved compiling something akin to a spreadsheet of old laws and looking for something close to a historical twin for the modern law being litigated, an approach Bruen expressly disowned. The few laws that survived this artificial and ahistorical winnowing process were then read in a parsimonious fashion rendering nearly every type of modern gun regulation suspect. An alternative approach, more consistent with the method advocated by Roberts and Kavanaugh, also gained traction in the lower courts. This interpretation of Bruen was still highly solicitous of gun rights and hostile to modern legal tools that acknowledge that consequences matter. This reading of Bruen had the virtue of treating both sides of the rights-and-regulation equation in a consistent manner.
Now, with Rahimi, it’s clear that the Kavanaugh-Roberts school is markedly different from Thomas’ approach. Their method, not the dissent’s cramped vision, currently controls Second Amendment law. This correction is significant. Recent legal research has shown a shocking partisan pattern in the way lower courts have applied Bruen. Republican judges and virtually all Trump-appointed judges approach gun rights at a high level of generality but do not treat regulation in a similar fashion. Studies of the application of Heller in the lower courts, by contrast, found that the use of modern tools of constitutional analysis that take account of consequences was less prone to partisan bias, a fact that challenges the claims of the court’s originalists that their method is more objective. Turning Second Amendment law into a version of historical Where’s Waldo, rummaging around in old laws with no coherent historical method, is far more prone to manipulation of sources and unconscious forms of confirmation bias.
Posted at 10:17 PM