I’ve Read the SCOTUS Gun Case, and It’s Great! (posted 6/24/22)

The firehose of current events continues apace, and it’s hard to decide what to try to write about first.

Should I mention that Biden’s approval numbers continue to drop?  (He’s now slid below periodontal disease and Brian Stelter, and is currently nestled between chlamydia – just a few points below! – and Que Mala – just a few points above!)

Should I discuss his plan for a federal gas tax holiday for 3 months, which even his own party has given the thumbs up their bottom?  (Ask Imhotep Pelosi and her leftist co-religionists if the feds should even temporarily tax people less, and guess what answer you’ll get.)

Sorry, that’s “thumbs down,” not “thumbs up their bottom.”   Honest mistake.

Anyway, in light of today’s Supreme Court decision on the second amendment, guns and crime and the proper role of courts are on my mind.

Now a Supreme Court decision is not justified solely because it drives malicious lefty dim-bulbs like Keith Olberman, Whoopi Goldberg, Joy Behar et al. crazy with poorly thought-out rage. 

But to paraphrase an old Yiddish saying, “It doesn’t hoit.” 

Beyond the entertainment value of watching halfwits acting out their half-wittedness, though, the SCOTUS decision slapping down NY state’s arrogant “prove to us you need a gun and maybe we’ll allow it” law is a thing of beauty.

It’s actually pretty easy to read and understand.   And I say that as someone with all of the legal acumen of Lionel Hutz, the famously incompetent lawyer from the Simpsons, voiced by the late, great Phil Hartman.

(My favorite Hutz scene was when he rested his case, only to have the judge point out that Hutz wasn’t wearing any pants.  Hutz, startled, then prompted this immortal exchange:

Hutz: “I move for a bad… court… thingy.” 

Judge: “You mean a mis-trial?”

Hutz: “Yeah!  That’s why you’re the judge, and I’m the… law-talkin’ guy.”

Judge: “The lawyer.”

Hutz: “Right.”)

Believe it or not, I spent a few hours today actually reading the text of this Supreme Court ruling, and it was fascinating. 

Here’s the text of the entire ruling, if you’re interested:  https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rUqQgvi13_8U/v0  

Here’s my quick overview: The entire document is 135 pages long.  The first 5 pages are background (descriptions of the parties and the case).  The opinion, written by Clarence Thomas, takes up pages 6-68, following by concurring comments by Alito (69-77), Kavanaugh (joined by Roberts, 78-81) and Barrett (82-83).  Then comes the dissent written by Breyer and joined by Kagan and Sotomayer, which takes up pages 84-135.   

Clarence Thomas writes the opinion, and it’s a model of clear, logical, sometimes acerbic prose.  I’ll give one quick example.

The supporters of NY’s position — that citizens must get permission from government officials to carry a gun outside of their home – listed a bunch of historical precedents for restricting arms, going all the way back to The Statute of Northampton (England) from 1328.   

Conservative originalists generally respect long-standing custom and traditions, and the web of law and precedents that have grown out of them over the centuries; their goal is to understand and follow the original intent of our Founders, and the clear meaning of the constitution.

“Living constitution” lefties, on the other hand, tend to cavalierly dismiss old timey laws that they believe originated in more benighted times, and favor adapting laws to our modern political ideas and desires.   (This tendency has led to such steps as “discovering” a right to abortion in a document that was read for almost 200 years as being silent on that topic, for example.)

Which is to say THEIR political ideas and desires.

By citing old English laws and traditions, the NY gun restrictionists tried to box the originalists in, and use their deference to earlier custom and tradition against them.  

Thomas responds deftly, and sarcastically.  First he turns the “living constitution” crowd’s habitual disdain for tradition against them: “Notwithstanding the ink the parties spill over this provision, the Statute of Northampton—at least as it was understood during the Middle Ages—has little bearing on the Second Amendment adopted in 1791.”

Then he follows with a chronological list of events that happened after the cited statue was enacted:  Northampton took effect “20 years before the Black Death, more than 200 years before the birth of Shakespeare, more than 350 years before the Salem Witch Trials, more than 450 years before the ratification of the Constitution, and nearly 550 years before the adoption of the Fourteenth Amendment.”

Take that, goofballs who whine that we shouldn’t pay attention to the constitution because it was written soooo long ago!

But Thomas goes one step further, showing how to analyze a legitimate historical precedent. (I picture Thomas cracking his knuckles above his keyboard and thinking, “You want to get medieval with me?  Okay, let’s get medieval!”)

He cites details that demonstrate that Northampton’s concern with people “going armed” focused on practices like wearing armor or using lances, since those were “generally worn or carried only when one intended to engage in lawful combat or – as most early violations of the Statute show – to breach the peace.”  

Thomas contrasts those items with knives or daggers, which contemporary documents show that most people carried for, among other purposes, “self-protection.”  Then Thomas twists the knife, as it were, into his opponents’ argument: “Respondents point to no evidence suggesting the Statue applied to the smaller medieval weapons that strike us as most analogous to modern handguns.”


I thought Breyer’s dissent – the first half of which I read, and the last half I skimmed – was pretty weak.  He’s not the writer that Thomas is, but the problem is not the writing, it’s the thinking.

He cited some details of relevant laws, as Thomas did, but the lion’s share of his energy is devoted to current social issues which are outside the scope of the law he’s supposed to be interpreting.  He cites pages of statistics on the number of guns and gun crimes there are in America today, the trends in gun violence, and contexts in which guns have been used illegally (mass shootings, road rage incidents, etc.).

After a lot of that, he does admit that guns are also used legitimately (for sport, security jobs or self-defense) and that legislatures and the democratic process – not courts – should be the ones to determine the proper balance between legitimate and illegitimate gun ownership. 

But he doesn’t clearly explain why the clarity of the 2nd amendment should be trumped by the convoluted inconsistencies that New York uses to undermine it.  Or why the democratic process to change gun laws shouldn’t take the path specified in the constitution, i.e. passing a constitutional amendment.

The only logical inference to explain Breyer’s dissent is the Occam’s Razor one: he agrees with the political/social perspective of New York politicians.  And that’s not how Supreme Court rulings are supposed to work.     

Alito’s concurrence is a masterful rebuttal.  In transparent, forceful prose, he takes apart Breyer’s dissent at the joints!  Where Breyer is foggy and rambling, Alito is incisive.

He comes out swinging: “Much of the dissent seems designed to obscure the specific question the Court has decided…”  After summarizing the ruling, he says, “In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section.”

What follows is a series of concrete, pointed questions that lay bare the insubstantiality of Breyer’s diffuse musings:

On the relevance of recounting recent mass shootings: “Does the dissent think that laws like New York’s prevent or deter such atrocities?  Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home?”

(He points out the obvious: the New York law was in place when the Buffalo mass shooter committed his crime last month.  That law didn’t stop him.)

On the relevance of suicides by gun: “Does the dissent think that… people [with guns at home] will be deterred from shooting themselves if they cannot lawfully take them outside?”

Perhaps most tellingly, Alito answers Breyer’s stats about the 400 million guns already in private hands in America: “And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.”

Yes!  New York’s law doesn’t keep violent criminals from possessing the tons of guns they have now – it only makes sure that law abiding citizens are prevented from defending themselves against those criminals.

Would-be gun grabbers – both the well-intentioned and the power-hungry Machiavellians – often rely on emotional anecdotes.  They cite the victims in Uvalde and Buffalo and Columbine, as if disarming law abiding citizens would have saved any of them.

Alito demonstrates that anecdotal evidence works both ways, by citing equally moving anecdotes on the other side.  He points to the story of two gay guys in Arkansas who were charged by 4 gay bashers with bats and pipes, and who drove them off by firing a shot in the air. 

He follows that with the story of a woman who was being beaten and strangled in a parking lot in Tennessee, but was rescued by a citizen with a gun, who held the woman-beater at gun-point until the cops arrived and arrested him.

For honest anti-gun Americans, Alito’s examples should provoke serious reflection.  For partisan anti-gun activists who fancy themselves particular champions of women and gays, his examples are powerful shots to the ribs.

Reading this case re-affirmed my faith in the wisdom of the originalist approach and the strengths of its arguments.  Reading the leftist reaction confirmed my low opinion of them and their arguments. 

I’m not just talking about the dullards on the View or on CNN/MSNBC/MSM.  I’m also thinking of the likes of lawyer and lefty commentator – and, judging from his name, Dr. Suess character — Preet Bharara. 

Preet tweeted, “SCOTUS read neither the room nor the constitution correctly.”

Nice tweet, Preet.  But you’re wrong about the second part, and off your rocker on the first. 

The court’s job is not to “read the room,” like Hillary Clinton trying to see if the crowd she’s in front of will fall for her terribly fake Southern accent (“Ah ain’t no ways tie-urred… CAW CAW…”).  It’s to interpret the law as it is written.  Full stop.

This column is getting pretty long, so I’ll save some more thoughts on crime and guns for Monday.

One final thought: Clarence Thomas turned 74 yesterday.  Joe Biden is only five years older than him.

Read Thomas’ cogent, persuasive ruling, and then watch Biden fall up the stairs, and off his bike, and then try to put three coherent sentences together and produce only f-ing commie gobbledygook (hat tip to Norm MacDonald)!   

I’m praying that Thomas will enjoy another 20 years of brilliant service to our country on the SCOTUS, and thanking God that Biden didn’t live to see the dumpster fire that his presidency has become.

It’s been a long 17 years, but it’s only 17 weeks until the mid-terms!

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