The Courage of a Justice

Yesterday’s oral arguments at the U.S. Supreme Court in Wolford v. Lopez were messy. Uncharacteristically, emotionally messy. The Hon. Justice Ketanji Brown-Jackson couldn’t contain her pain. The Hon. Clarence Thomas quietly remarked to no one in particular that he had already covered it in his prior decision. Justice Gorsuch resorted to a garlic and vampire analogy. And in true Kavanaugh Style, he asked whether the case wasn’t being over-analyzed.

The emotional fall-out was caused by the submission of the Washington, D.C. based attorney, representing Hawaii, who asserted that overtly discriminatory historic statutes are appropriate antecedents for purposes of a Bruen evaluation of a modern statute that limits the carrying of firearms onto private property open to the public.

The official court reporter transcript is already available this morning. I’ve uploaded it HERE on my website to make it easy to you to access the 140-pages (double-spaced, generous margins). It’s so critically important to our Heller - McDonald - Bruen - Rahimi discussion that I am printing it out today, and will start annotating it tonight. You’ll see it next week in my submission in the Gazzola v. Hochul case, as we submit our Bruen analysis on the NY ammunition background check and the SAR license requirement.

Let’s go to where Justice Jackson began her attempted drill-down into the question I’ll rephrase further down this blog. It was clear from my many, many hours spent analyzing oral arguments of the U.S. Supreme Court across decades of available recordings that the Justices had come in hot. There was already a deep divide in the back that spilled out into the spectacular beauty of the U.S. Supreme Court courtroom. Oh to have been there!

Justice Jackson said:

“Let me just ask you about the black codes. Justice Gorsuch raised it. And I guess what I’m wondering — your — your answer to him was they can’t be and shouldn’t be used. And I guess I’m wondering whether that doesn’t signal a problem with the Bruen test, that to the extend that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account, I — I think there might be something wrong with the test. So can you speak to that?” [TR34:5-15]

What I would have said is that the problem is not with the Bruen test, which well structures an analysis of implication of the Second Amendment with a burden upon the government to demonstrate a history and tradition consistent with the modern law, but, rather with the manner in which Hawaii’s attorney is holding up discriminatory laws as an appropriate antecedent for modern discrimination. The attorney for Hawaii is advancing a theory that the Equal Protection Clause of the Fourteenth Amendment can and should be sacrificed for the political end game of disarming Americans using a distortion of the Second Amendment to do so.

Justice Jackson then rephrased, and her point started to come into view:

“No, I understand why you’re saying they can’t be used, but it’s because we’ve moved away from that history, not because that history didn’t exist. And so, to the extent that the test today is tying us to historical circumstances, it would seem to me that all of history should be on the table. And if we start taking pieces off, whether it’s because we’ve moved away from it or we don’t agree with it anymore, I think there’s — there’s going to be a problem with respect to the accuracy of our test.” [TR34:21-TR35:8]

She is correct. Whether it is the Second Amendment or any other American civil right using a history and tradition threshhold, it is the Rahimi case that instructs us to look at the “how” and the “why” of the historic laws. In my own words, put the law into the context of the day.

One of the consequences to avoid is a reading of history of minorities - however defined, whether race, ethnicity, religion, etc. - as being “outlyer” laws is that you repeat the discrimination. In Justice Jackson’s words, “To — to people other than the people in this small segment that you’re talking about, who were a part of society, but I guess you’re saying that for the purpose of this test, we’re not going to consider what happened to them?” [TR35:16-21]

Which brings me to what Justice Thomas said: “Well, actually, there was quite — as I said in my McDonald opinion, quite a bit of discussion…” [TR114:13-19] His remark was the understatement of the two-hour orals. If you are not familiar (I do think that folks generally do not know the McDonald case as well as they know Heller and Bruen), Justice Thomas’ opinion in McDonald contains an extensive, detailed, and well-cited walk through the relevant history of disarmament of African-Americans. It is an enduring cautionary narrative of why we must remain vigilant to civil rights under the Second Amendment for all Americans, which can only be achieved through a Fourteenth Amendment check on state and local governments.

On his part, Justice Alito was sage in his observation to the attorney representing Hawaii: “Mr. Katyal, you’re just — you’re just relegating the Second Amendment to second-class status. I don’t see how you can get away from that.” [TR92:1-4]

I will have much to share on this subject across the next few weeks. The NY Attorney General’s argument in Gazzola v. Hochul includes overtly discriminatory laws targeting multiple other segments of subjects of the British Crown in the Americas, Native Americans, Papists, those required to swear Revolutionary War militia oaths, and more.