Personal Gun Ownership Shall Not Be Infringed Has Lost Again

For many years now US Justice Clarance Thomas has been on a mission: to rewrite the Second Amendment of the US Constitution.

The Second Amendment is:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

What Clarance Thomas wants it to say is:

Personal Gun Ownership Shall not be infringed.

But it doesn’t. And it never has.

For 216 years the Supreme Court upheld that the Second Amendment was there to ensure the continued existence and effectiveness of the well regulated Militia. Then in 2008 the Supreme Court tried to redefine it, the opinion was written by Justice Scalina, but Justices Roberts, Alito — and Thomas agreed with it.

The new version of the Second Amendment, according to DC v Heller, went something like this:

The individual rights of the people to have weapons or armor and carry weapons for offense or defense just in case of conflict, shall not be abridged — just in case properly disciplined and trained males physically capable of acting in concert for the common defense are needed for any reason for a free country or polity.

In that case, they upheld that a handgun could be kept within the home for self-defense, and Thomas felt that personal gun laws had been deemed unconstitutional.

As the lower courts tried to uphold the Heller decision though, they interpreted it to mean that they should follow a two-step process to see if gun laws were constitutional. Step one is to check if the law in question falls within the scope of the Second Amendment. While explaining this step they also pointed out some problems with the Heller decision. Judge Scirica of The United States Court of Appeals, Third Circuit said:

We recognize the phrase “presumptively lawful” could have different meanings under newly enunciated Second Amendment doctrine.

The second step, if the law does fall within the scope of the Second Amendment, is to evaluate the law under some form of means-end scrutiny. This provided another incongruity between standard practices and the recommendations of the Heller decision.

The Government argues a rational basis test should apply to § 922(k), but Heller rejects that standard for laws burdening Second Amendment rights.

After a few of the lower court decisions upheld that gun laws did not violate the Second Amendment even when applying the new doctrine from the Heller Decision, another case came before the Supreme Court in 2022. This time it was Justice Clarance Thomas who was able to write the majority opinion.

He immediately shot down the two-step process which had been derived from the Heller decision.

In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many

Trying to get the Second Amendment closer to the “Personal Gun Ownership Shall not be infringed.” version he wants the Second Amendment to say, he redefines the Second Amendment again. This time he wants it to prevent any gun law from existing that hasn’t existed before, at least as long as they are as similar as two green things are both green.

For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”

Justice Thomas’s new version works like this:

To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

or

Personal Gun Ownership Shall not be infringed, unless there used to be a law similar to the gun law in question.

Now we reach June 21, 2024, and United States v. Rahimi. In this case, the court reviewed a federal statute that infringes upon the right to own a gun if the person in question is subject to a domestic violence restraining order and has threatened the use of physical force on their spouse or their spouse’s children. The case used the Bruen version of the Second Amendment… and the Federal Statute held up in an 8 to 1 decision, with Clarance Thomas as the only dissenting voice. Chief Justice Roberts delivered the majority opinion, in which he says

Since the Founding, the Nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms.

So yet again he was proven unsuccessful at twisting the Second Amendment into being a barrier to all personal gun ownership infringement. Perhaps Clarance Thomas should have researched historical laws a little before placing all his bets on the idea that there weren’t any.

Instead of simply making things up as Justice Scalia and Justice Thomas have tried, if the original wording of the Second Amendment is unclear perhaps we should just realize that what it amends is the militia clauses of Article 1 Section 8 of the US Consitution, and what it means is something like this:

A militia trained by the States according to the discipline prescribed by Congress, being necessary for a State to execute the law, repel invasions, and suppress insurrections; the right of the people to a well regulated State militia, shall not be infringed.

After all, that’s what the Supreme Court stuck with for the 216 years before the Heller decision. This is Justice McReynolds in US v Miller 1939:

The Constitution, as originally adopted, granted to the Congress power —

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Justice Clarance Thomas, it’s time you gave it up and went home. We don’t need Justices who are on quests to rewrite our Constitution, we need Justices who take the time to understand and properly interpret the one we’ve got.