I’ve written about how certain phrases in the Supreme Court opinions seem to leave an opening for the gun infringers to attack. I noted, shortly after Bruen that Justice Kavanaugh concurring opinion mentioned “sensitive places” and as such I thought it would lead to the gun infringers attempting to make as many places “sensitive” as possible.

I did not understand how we ended up with means-end after Heller.

Heller was notoriously opaque about the standard of review it was applying, which was curious given the amount of time the parties spent sparring over the issue in their briefs and at oral argument. Perhaps anticipating that his opinion would be
criticized for not being explicit about the standard of review, Justice Scalia said, in essence, “hey, Rome wasn’t built in a day.” Early on, a consensus began to emerge, based on Justice Scalia’s explicit rejection of some form of rational basis review, the refusal of the Court explicitly to embrace strict scrutiny and the Heller safe harbor listing presumptively lawful regulations, that some form of intermediate scrutiny was appropriate. Lower courts then began to apply that test in various forms and upheld all the major regulations that came before them. In just a few paragraphs, however, Bruen essentially overruled a decade’s worth of Second Amendment jurisprudence and reopened previously-settled questions about the constitutionality of laws ranging from the prohibition of possession by individuals under a protective order to assault weapons bans to bans on high-capacity magazines.
Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen

Note that I disagree with large parts of the article cited above. They are arguing that Bruen was a huge departure from Heller and that when Justice Thomas said that the lower courts got it wrong it was in fact the Supreme Court that was wrong.

They argue that the Supreme Court was wrong in that they did not explicitly tell the courts how to adjudicate Second Amendment cases and that even though they mentioned text, history, and tradition, the Heller Court didn’t actually say that was the standard to be used plus the discussion by Justice Scalia of levels of scrutiny meant that the Heller Court intended inferior courts to use means-end levels of scrutiny.

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By awa

3 thoughts on “How we end up in poor positions after Supreme Court opinion”
  1. On the counter though, each one of these cases then strengthens the individual rights model and permanently enjoins another set of anti-gun laws. Yeah, they’re going to make more but they’ll do that anyway. It just gets more difficult and the curtain slips a little more each time like the DC racism makes it constitutional argument and that imbecile for the CA(?) case stating that .223 blows people in half.

    1. That guy in Rupp v. Bonta is Col. Tucker(Ret). David Kopel had a great take down of him this week. The interesting part to me is that the state tried to get Tucker’s “expert” opinion into Duncan v. Bonta and got caught. Yeah, Tucker’s testimony is that bad.

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