Assessing the constitutionality of modern-day gun restrictions using “historical analogues”

Both of these articles by Mark Stern are good reads. He gets the point across without using the typical legalese in explaining his stance. It is interesting, how Judge Reeves places the responsibility right back in SCOTUS and Thomas’s lap. In other words, they have to decide how to work through the history quagmire created by Thomas. The court is not deciding based upon Constitutional interpretation which the Nineth Amendment covers. The court is attempting to decide based upon what was in the writers of the Constitution heads at that time. Judges and lawyers are not trained in history, neither do they have library of historical knowledge, and finally this goes well beyond legal interpretation.

SCOTUS decision in New York concealed carry law is a nightmare for gun control,” (, Mark Joseph Stern.

Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791. This is when the Second Amendment was ratified. Thomas’s directive results from New York State Rifle & Pistol Assn., Inc. v. Bruen (06/23/2022) (, June 2022.

Thomas, J., delivered the opinion of the Court, in which Roberts, and Alito, Gorsuch, Kavanaugh, and Barrett joined. Alito filed a concurring opinion. Kavanaugh, filed a concurring opinion, in which Roberts joined.

From what I am reading in the article, it appears the District Federal Judges are struggling with “historical analogues.” What a surprise. One can only wonder what COA judges are thinking. The weight of the decisions rests with the District Judges. Everyone else interprets and critiques the District Courts finding.

In striking down New York’s restriction, the justice also established a new standard for evaluating gun control measures. First, Thomas asks whether a law interferes with rights protected in “the plain text” of the Second Amendment. Specifically, the right to self-defense (which is not actually in the amendment’s text). If so, that law (state) is presumptively unconstitutional. The government may only save it from invalidation if it can prove that the regulation “is consistent with this nation’s historical tradition of firearm regulation.”

Here again, this becomes a matter of interpretation of what was intended which takes it a step further away from factual knowledge of the topic being guns.

Courts may no longer consider empirical evidence in upholding gun control laws. They cannot, for instance, cite an heightened increasing lethality of particular weapons. Such data is now irrelevant and times have changed since 1791 to which the constitution was written so as to be a living document. Judges can only ask whether there is some “historical analogue” from 1791 (Second Amendment was ratified) or 1868 (14th Amendment was ratified, applying the Second Amendment to the states).

One might assume this analysis would only shield weapons in common use in 1791 or 1868. Nope, Thomas clarifies; “any modern instruments facilitating armed self-defense” is also protected. Even if they did not exist until recently. This defies logic and what the founding fathers had intended in a “living” and dynamic constitution.

Thomas’s approach overrules the test used in many courts of appeals in assessing gun restrictions. The approach creates a new demanding standard for the courts to satisfy. Previously, courts engaged in what Thomas dismisses as “means-end scrutiny.” The approach asks courts to determine whether the law is carefully tailored to promote an important state interest. Countless other rights are assessed under this standard.

Thomas declared such an approach is an inappropriate test for firearm laws. “The people” already decided they hold a presumptive right to bear arms when ratifying the Second and 14th amendments. Ahem, and the Nineth Amendment?

Fast Forward

A Federal Judge Calls Clarence Thomas’ Bluff on Gun Rights and Originalism (Slate), Mark Joseph Stern.

Last Thursday, Southern District of Mississippi Judge Carlton Reeves charted a different course: He proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions.”

This to be used in deciding the constitutionality of a federal law barring felons from possessing firearms. His proposal is the first positive development in Second Amendment law since the Bruen revolution. Potentially, Reeves request will demonstrate the absurdity and impossibility of Thomas’ dictate. At best, it will restore sanity to an area of law and jurisprudence that is going completely off the rails.

Reeves wrote:

“The justices of the Supreme Court, distinguished as they may be, are not trained historians. Federal judges “lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.”

Putting oneself in the mindset of a rich, white men in the 18th century requiring training and practice.

“Yet we are now expected to play historian in the name of constitutional adjudication.”

In his Thursday order, the judge wrote that he did not want to “cherry-pick” facts. If this is the foundation of decisions, Judge Reeves states he requires a comprehensive analysis of firearm regulation in 1791. That approach is especially wise in this context, since challenges to the ban on felon possession of a firearm have proliferated after Bruen

Gee, what a surprise, challenges on the ban!

Judge Reeves, who is Black, will not pretend that he can divine the intentions of dead white men from the 1790s. His candor—respectful and eloquent as it is—puts Justice Thomas’ fake history to shame.

When the Law is Part of the Problem,” Angry Bear, Ken Melvin.

Guns, Murders, and the Rule of Law: Running the Numbers,” Angry Bear, Steve Roth.

Why Do Republicans Allow the Slaughtering of Children to Protect Guns?” Angry Bear, run75441.