The Bruen Case Part II: Red Flag Laws and Judicial Activism
This is a final look at the Court’s decision in New York State Rifle and Pistol Assoc., Inc. v. Bruen. Part I, analyzing the majority opinion, is here. This Part II will first examine the Bruen opinion’s likely impact on state Red Flag Laws, a key component of Congress’s recent gun legislation. Two, this part will show that, while the majority opinion in Bruen holds that the sole basis for interpreting our Constitution and its Amendments is originalism, the dissent in Bruen is a cri de coeur from Breyer, Kagan, and Sotomayer for a return to wholly unconstitutional progressive judicial activism.
Red Flag Laws
The federal government has long had a law in place, 18 U.S.C. § 922(d), to limit individuals’ ability to purchase a weapon. The requirements of that law are often mirrored in states with “shall issue” licensing for a permit to carry weapons in public, providing a reasonable objective standard:
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year [i.e., a felony];
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance . . .;
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who [is an illegal alien or admitted into the U.S. on a non-immigrant visa]
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.
As Justice Kavanaugh explains in his concurrence to Bruen, nothing in the Court’s decision disturbs the states’ use of such objective criteria. Beyond that, nothing in the Bruen decision explicitly speaks to the latest gun-grabbing craze sweeping the U.S. Nineteen states and Washington, D. C. have adopted so-called Red Flag laws in one form or another.
Ostensibly, the goal of such laws is to take weapons away from people otherwise lawfully able to possess them when it is shown to a court that the person has become a danger to himself or others. It certainly sounds laudable and at least one professor has made a back-of-the-envelope calculation that such laws save several thousand lives each year. But it also sounds like such Red Flag Laws are tailor-made for abuse, a point driven home by Tucker Carlson in his opening segment several days ago.
The logic of the Bruen decision dictates that state Red Flag Laws will only pass muster if they strictly comply with due process, allowing for notice and a hearing with the court applying a “beyond a reasonable doubt evidentiary standard.” That does not appear to be the case with many of the existing Red Flag laws, and suggestions to “improve” such laws do nothing to remedy Constitutional defects.
For instance, Holman Jenkins, writing at WSJ, would “improve” Red Flag Laws by having Google write an algorithm that would be admissible in court to identify people who are otherwise law-abiding but who Google’s algorithm marks as a threat to themselves or others. What kind of idiot would trust anything as important as a primary constitutional right to the tender ministrations of the hyper-partisan ideologues in big tech? Do you think they would routinely find anyone to the right of Chairman Mao a threat to themselves or others?
At any rate, the logic in Bruen would appear to foreclose any Red Flag Law applied ad hoc to strip people of their Second Amendment rights. As Justice Thomas writes:
We declined to engage in means-end scrutiny because “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U. S., at 634. We then concluded: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”
For another take, Prof. Eugene Volokh gives his assessment of this issue at Reason:
What does all this mean for “red flag” laws? Here’s a passage that deals with historical precedents for restricting gun ownership by people based on court orders finding a heightened risk of misconduct on their part, though such statutes required only posting a monetary bond, not surrendering one’s guns altogether:
In 1836, Massachusetts enacted a new law providing: “If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.” [Some states had similar rules. -EV] …
[T]he surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.” As William Rawle explained in an influential  treatise, an individual’s carrying of arms was “sufficient cause to require him to give surety of the peace” only when “attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them.” Then, even on such a showing, the surety laws did not prohibit public carry in locations frequented by the general community. Rather, an accused arms-bearer “could go on carrying without criminal penalty” so long as he “post[ed] money that would be forfeited if he breached the peace or injured others—a requirement from which he was exempt if he needed self-defense.”
Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee rather than a ban….
The Court also noted that the laws were only lightly enforced: “[O]ne scholar who canvassed 19th-century newspapers—which routinely reported on local judicial matters—found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement.”
Originalism versus the Unconstitutional Judicial Activism of Justice Breyer (Joined by Justices Kagan and Sotomayer)
Justice Thomas’s Bruen opinion is a purely originalist opinion for he states explicitly that the test for determining the contours of the Second Amendment right is “the Second Amendment’s text, as informed by history.” Originalism is the sole legitimate means to interpret the Constitution because, as the late Justice Antonin Scalia explained:
. . . [The Constitution] is not a living document, but a dead one.
The Supreme Court’s conservative torchbearer says he believes the Constitution’s meaning cannot change over time. It was meant, he says, to impose rigid rules that cannot be altered, except by the difficult process of constitutional amendment.
“If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you’ve eliminated the whole purpose of a constitution. And that’s essentially what the ‘living constitution’ leaves you with,” Scalia says.
. . . [Justice Scalia] takes an “originalist” view of the Constitution, that its meaning today is the same as when it was drafted, . . .
Justice Breyer’s dissent, in which Justices Sotomayor and Kagan join, is notable for contesting originalism as a means to announce constitutional law. Breyer wanted to adopt the two-step test the Courts of Appeals have used, a test he described in his dissent thusly:
At the first step, the Courts of Appeals use text and history to determine “whether the regulated activity falls within the scope of the Second Amendment.” . . . If it does, they go on to the second step and consider “‘the strength of the government’s justification for restricting or regulating’” the Second Amendment.
His baseline argument for adopting the two-part test is quite curious.
The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law’s objectives (its“ends”) against the methods used to achieve those objectives (its “means”). Judges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians. Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.
Right. So how then can any lawyer so devoid of research skills hope to accomplish step one of the test Breyer wants to adopt, namely, “to use text and history to determine ‘whether the regulated activity falls within the scope of the Second Amendment'” Wow, what disingenuous b.s.
Breyer is saying that he doesn’t want history to restrain him. He would announce new constitutional law from on high, paying nothing more than lip service to the original intent of the people who ratified the Second Amendment. He does not care what the Americans who adopted the Second Amendment intended nor does he care that Article V of the Constitution provides only two means for amending the Constitution. Neither of these methods — which require that the people act through their elected legislators — involves any Supreme Court Justices. Breyer, however, wants to simply announce law by fiat, just as the judicial scum who have turned our Supreme Court into a mini-Politburo have been doing since before the days of Roe v. Wade, making fundamental changes to our nation. It has been tolerated for the past century, but it is nothing more than an obscene assault on our Constitution.