Thread by @WallsOther

1) A little analysis of Thomas's decision that my unlegal mind can muster:
2) In reviewing the "two-step" process that developed after Heller, the Court holds this is "one step too many."
3) First, Thomas asks what the Heller decision means & he states Heller . . .

3) contd . . . —“guarantee[s] the individual right to possess and carry weapons in case of confrontation” that does not depend on service in the militia". In other words, "keep and bear arms is an INDIVIDUAL right not related to the militia clause. Which we all knew.

4) Next the justices dug into history to confirm that the right to bear arms "has
always been widely understood that the Second Amendment . . . codified a pre-existing right.”

5) To that end, the justices found that HISTORY says that the Second Amendment "conferred an individual right to keep and bear arms."

6) But they didn't stop there. They looked at the state constitutions BEFORE the Bill of Rights and found that history included the “analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment."

7) Then here comes bomb #1: the “examnation of a variety of legal & other sources to determine the public understanding of a legal text in the period after its enactment or ratification” was “a critical tool of constitutional interpretation."

I.e., you cannot ignore context

8) Then the justices looked at the original legal views of the 2nd Amend at the time; at 19th century cases about the 2nd Amend., [VERY IMPORTANT] a review of "public discourse" (i.e., what did it mean to people?] and last to post Civil War commentators.

9) Thomas noted that even going back to the early 1800s the right to carry any weapon at any time for any purpose was NOT considered a right by early jurists, but only use of weapons that are “‘in common use at the time.’” This seems to open another case that would . . .

9) contd . . . define what "common use" would be. It certainly wouldn't be a bazooka or a nuke. The question is, would the Court find an AR-15 to be "common use?" Thomas says the Court wasn't weighing in on anything beyond the DC handgun ban in its earlier decision.

10) As to a "means test" (i.e., can only certain people be trusted with a handgun?) We then concluded: “A constitutional
guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

11) Thomas then moves to a comparison of the 2nd Amend. to others. "This Second Amendment standard accords with how we
protect other constitutional rights." He uses free speech cases to show that the gubment faces the burden of showing the constitutionality of its actions."

12) Reliance on HISTORY to determine the nature of the right is more reliable than relying on judges man-made standards, especially if they are not "experts in the field."

13) They find no special modern circumstances that would have overridden the founders' obvious assent to individual gun ownership.

14) He argues that "arms" doesn't just apply to "arms" that existed in 1789 or 1868.
“Just as the First Amendment protects modern forms of . . .

14) contd. . . communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to ALL INSTRUMENTS THAT CONSTITUTE BEARABLE ARMS, even those that were not in existence at the time of the founding.” Hello, AR-15.

15) The right regulate arms in "sensitive places"---schools, courts, polling places--- historically was upheld.

16) The Court defined "sensitive places" as places where the government may lawfully disarm law-abiding citizens as including all “places where people typically congregate and where law-enforcement and other
public-safety professionals are presumptively available.”

17) Note that under this logic, schools are NOT "sensitive places" because of the abject failure repeatedly of "law-enforcement and other public safety professionals" to respond.

18) "Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department."

Correct. Indeed one would question their protection

19) Thomas admits they are dodging some of these questions, and pleads tradition--that the Court does this all the time.

20) Turning to the question of "bear"ing arms, Thomas writes: The Second Amendment’s plain text thus presumptively
guarantees petitioners Koch and Nash a right to “bear” arms in public for self-defense."

21) Thomas also says, basically, just because England STOPPED doing it doesn't impact us at all. "And English common law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution."

22) "Strictly speaking, New York is bound to respect the right to keep and bear arms
because of the Fourteenth Amendment, not the Second."

23) Thomas says basically NY has not done its homework: "We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper cause requirement. Under Heller’s text-and-history standard, the proper-cause requirement is. .

23) contd . . therefore unconstitutional.

24) Thomas then returns to the application of English law to America: "this Court has long cautioned that the English common law “is not to be taken in all respects to be that of America.”

25) After a long detour into English law related to daggers/arms/etc., the Court concludes At the very least, we cannot conclude from this historical record that, by the time of the founding, English law would
have justified restricting the right to publicly bear arms suited. ..

25) contd . . .for self-defense only to those who demonstrate some special need for self-protection."

26) Looking at early colonial use, New York could only find three instances of regulation, two of them nearly identical, and none of them related to weapons "of common use."

27) They then looked at post Constitutional state laws, and found NO regulatory standard except if it were proven a person was carrying a weapon for the express intent "to strike terror into people."

"Those who sought to carry firearms publicly and peaceably in . . .

27) contd . . . antebellum America were generally free to do so."

28) "These antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment
or state analogues."

29) In what seems like a deliberate gig at liberals, Thomas cites Roger Taney in the Dred Scott case: "If blacks were citizens, Taney fretted, they would be entitled to the
privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” I

30) That, my friends, is an in-your-face BOOM SHAKALAKA!

31) Thomas then reminds everyone that South desperately attempted to curtail the right to bear arms by free blacks.

After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted. This Court has already recounted some . . .

31) contd. . .of the Southern abuses violating blacks’ right to keep and bear arms." "Witnesses before the Joint Committee on Reconstruction also described the depredations visited on Southern blacks,
and the efforts they made to defend themselves."

32) Thomas cites a pair of Texas cases (the "English" case, for ex.) that did constrict the right to bear arms, but argues those two cases, when weighed against the whole history of the West, are not indicative of general sentiment.

33) Thomas cites the very sparse population of the Western territories as further evidence that the right to bear arms was an individual right, as the pop wasn't sufficient for a militia.

34) In conclusion, Thomas writes "The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions."

35) Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the
general community” in order to carry arms in public."

36) We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need."

37) "That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. . . .

37) contd . . . "And it is not how the Second
Amendment works when it comes to public carry for self defense."

Wow.