Thread by @TCBurrus

Today, the Supreme Court correctly decided that the Second Amendment means what it says.

A #CatoSCOTUS 🧵 on New York State Rifle & Pistol Association v. Bruen…. 1/18

The “right to keep and bear” arms protects not just keeping but bearing.

That means a law-abiding person who can legally possess a gun cannot be unduly prohibited from carrying that gun in public.

2/18

While this decision will be criticized by many as a “radical” expansion of gun rights, it is actually a modest decision that only strikes down discretionary licensing laws that limit issuing carry permits to those who can demonstrate specific threats against them.

3/18

The Second Amendment protects the natural right to self-defense.

That means that Americans shouldn’t have to convince a bureaucrat that they are sufficiently threatened to be allowed to bear arms.

4/18

When the NY solicitor general was asked in oral argument whether an ordinary person could receive a permit if she walked home from work at night in a crime-infested area where muggings are common, he said "no." That's how restrictive the NY law was.

5/18

Imagine having to demonstrate to a bureaucrat that you had something sufficiently important to say in order to throw a rally or a protest. This would be a blatant violation of the First Amendment.

6/18

The 2nd Am. is just as much in the Constitution as the 1st, & that means that those who ratified the amendments chose to put those values above other values. We protect speech even though it can be harmful. We protect the rights of the accused even though they may go free.

7/18

And we protect the right to keep and bear arms even though people do horrific and terrible things with guns.

But people also defend themselves with guns about 2 million times a year.

8/18

If ratifying the 2nd Am. was a bad decision, or it is a bad thing now, then the only way to legitimately change that is through a constitutional amendment.

9/18

Unfortunately, few people are able to disentangle their policy preferences from their constitutional interpretation. Any good judge/justice/scholar should be able to name something he thinks is a bad idea, but is nevertheless constitutional, as well as the reverse.

10/18

More than a decade ago, the Supreme Court declared that the 2nd Am. guarantees an individual right to keep arms for self‐​defense.

Heller was about "keep," this is about "bear."

Since then, lower courts have tried to restrict the right as much as possible.

11/18

Courts have evaluated the Second Amendment under a watered‐​down form of intermediate scrutiny and balancing tests that are unthinkable in other constitutional contexts.

12/18

#CatoSCOTUS filed an amicus brief detailing how Second Amendment claims have been handled throughout the country and urging the Supreme Court to use this case to establish clear rules for evaluating Second Amendment claims.

The rules now are definitely clearer.

13/18

The Court adopted our approach and has now clarified that the 2nd Am. should be interpreted according to history & tradition (is this the kind of regulation the ratifiers would have found ok?) rather than complex and judge-empowering balancing tests.

14/18

That now comports with other amendments, like the 1st, where we ask whether the speech is the type that was understood by the ratifiers to be protected, like political speech. Even though many types of speech can be harmful, courts generally eschew balancing tests.

15/18

That "balancing" was done when the amendments were ratified. The ratifiers chose protecting speech over regulating for the harms of speech. They chose protecting property over the ability of bureaucrats to just take it for anything.

16/18

They chose to protect the rights of the accused and all of our rights against unreasonable search & seizure even though that can make criminals harder to catch.

And they chose to protect gun rights despite the clear harms guns can cause.

17/18

If you'd like to read the Cato brief in the case, you can find it here:

FIN 18/18

cato.org/legal-briefs/n…