Clarence Thomas's time machine
America today is going to be run how white men ran things back in America's first days. Also, your Miranda rights aren't ~really~ rights.
It’s been a Supreme Court-heavy day, with the court having released four decisions on Thursday — see my Twitter thread here — and releasing one or more decisions of the nine cases remaining on Friday.
It is not, however, expected to be the last day of opinions, so we will almost certainly be getting some of those nine opinions next week as well.
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GUNS BLAZING: The Supreme Court, in a 6-3 decision by Justice Clarence Thomas, struck down New York’s “proper-cause requirement” concealed-carry handgun registration law on Thursday. The three Democratic appointees dissented for the ruling, which could affect similar laws in five other states and Washington, DC.
As I said on Twitter, this is a dramatic expansion of gun rights in this country — particularly given how Thomas explained regulations are going to be reviewed going forward.
Yes, there are regulations still allowed. As Thomas acknowledges, the court has said and still says that there are limits. Primarily, if a law regulates something that is just simply “outside the scope” of the Second Amendment “as originally understood,” for example, it can be regulated. (What is “originally understood,” though, is what the Supreme Court says it is and, as such, could change with five votes.)
But under the court’s decision in New York State Rifle and Pistol Association v. Bruen, when it comes to regulating activity that falls within the scope of the Second Amendment, the limits are far more exacting. The way the court is going to consider whether those gun regulations are constitutional, Thomas wrote, is by looking at whether the colonies and first states had those types of regulations.
That’s truly basically what it is.
Here’s Thomas describing the rule:
(Heller was the court’s 2008 decision striking down Washington, DC’s handgun ban, but that decision was a case about a total ban and the opinion focused on guns as needed for self-defense in your home. Despite that, a big part of the opening of Thursday’s decision in Bruen is Thomas telling the lower courts that they didn’t go far enough in expanding the reach of Heller in its aftermath when looking at other gun regulations.)
So, Thomas says that such gun regulations can be upheld only if they are “consistent with the Nation’s historical tradition of firearm regulation.”
Thomas goes on to explain that, if the problem addressed by a gun regulation in current times is longstanding, then “the lack of a distinctly similar historical regulation is relevant evidence” the the regulation is unconstitutional today.
Already, this means it is a constitutional rule that, as long as it’s an old problem, changes in the nation since our founding are effectively irrelevant to how we consider those firearm regulations.
What does that mean for New York?
!["New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller: “handgun vio- lence,” primarily in “urban area[s].” Ibid. Following the course charted by Heller, we will consider whether “histor- ical precedent” from before, during, and even after the founding evinces a comparable tradition of regulation. Id., at 631. And, as we explain below, we find no such tradition in the historical materials that respondents and their amici have brought to bear on that question. See Part III–B, infra."](https://substackcdn.com/image/fetch/f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fbucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com%2Fpublic%2Fimages%2Fbb8da7ef-20af-42d0-abfe-2fd107ef2a66_1110x482.png "\"New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller: “handgun vio- lence,” primarily in “urban area[s].” Ibid. Following the course charted by Heller, we will consider whether “histor- ical precedent” from before, during, and even after the founding evinces a comparable tradition of regulation. Id., at 631. And, as we explain below, we find no such tradition in the historical materials that respondents and their amici have brought to bear on that question. See Part III–B, infra.\"")
Ah, yes, the “urban” areas of the post-Revolutionary War, and the level of “handgun violence” faced in those oh-so-heavily-populated cities.
Thomas does provide a slightly different rule for “regulations that were unimaginable at the founding.” Even there, though, to be constitutional the regulation must find its basis in a “relevantly similar” olden times regulation.
The remainder of Thomas’s opinion — nearly 40 pages long — is engagement with the past, looking at regulations from throughout history that supporters of the New York law put forward as being similar to New York’s law (in order to attempt to pass muster under the court’s originalist approach to the Second Amendment). This section includes, somehow, a positive reference to then-Chief Justice Roger Taney’s infamous Dred Scott opinion.
There is not, however, an examination of what has changed since the Second Amendment was adopted — or even since the Fourteenth Amendment (which makes the Second Amendment applicable to the states) was adopted — and then consideration of what past regulations might look like if updated to meet those changes. (This is an approach that would be appropriate even granting, and not fighting with, the premise that we’re going to interpret the Second Amendment from an originalist perspective.)
Instead, this lengthy review is just a bland look at historical regulations and how they directly compare to New York’s law, with no consideration for the changed times.
Then, because Thomas decided that the regulations in the past were not similar enough to New York’s registration law or weren’t common enough, he concludes that it is unconstitutional.
What does this mean?
Applying Thomas’s opinion for the court, many regulations that wouldn’t have been needed in the past but that elected officials and their constituents support now because of changed times and circumstances could nonetheless be held unconstitutional by the current court. Specifically, if a provision regulates Second Amendment-covered activity and that type of regulation wasn’t in wide use back when the Second Amendment was added to the Constitution in 1791, it’s likely to be struck down by this court.1
Put simply, Thomas’s rule for comparing gun regulations that existed in the past with those around today doesn’t allow for actual consideration of changed times.
WHEN A RIGHT’S NOT A RIGHT: In one of the other cases announced on Thursday, Justice Samuel Alito — in another 6-3 decision, with the same partisan-split vote — held that when a law enforcement officer fails to provide someone with their Miranda rights that we all know from TV and movies (that get their name from a 1966 Supreme Court decision), that person isn’t able to sue the officer under a law (Section 1983) that allows private lawsuits to address officials’ constitutional rights violations.
The court reached this decision in Vega v. Tekoh despite the fact that Miranda exists because the Supreme Court — as even Alito acknowledges — “concluded that additional procedural protections were necessary to prevent the violation” of the Fifth Amendment right against compelled self-incrimination. Alito, however, concluded Thursday that because past decisions made clear Miranda was a “prophylactic” ruling aimed at protecting a right, the Miranda protections are not themselves a “right” that a person can sue over under Section 1983.
I asked Emily Galvin-Almanza — a former public defender, former colleague of mine at The Appeal, and the executive director of Partners for Justice — what she thought the effects of the ruling would be.
“On a day-to-day basis, I think the big fear is an expansion of what we already see in the [qualified immunity] context,” she said, referring to the court-made rule that prevents public officials from being able to be sued unless it can be proven that they violated a “clearly established” constitutional right. (That itself is a moving target that prevents officials from facing liability for even similar unconstitutional actions if an official can get a court to agree that their rights violation is different enough from a past case that it’s not “clearly established” that their action was unconstitutional.)
The fear, Galvin-Almanza told me, is “that the prevention of civil [lawsuit] consequences against individuals and agencies that violate individual rights will increase the rate at which these violations happen.”
In the court’s ruling, though, Alito noted that statements given in violation of Miranda can generally be suppressed — not allowed — at trial, and that, he concluded, serves the “prophylactic” goals of Miranda.
Galvin-Almanza questioned that, telling me, “Suppression, as a remedy, is hit-or-miss: police lie a lot, and on the ground there are a lot of judges inclined to believe them.” Specifically relevant here, she added, “many more in criminal court than there would be in the federal trial court that would hear a 1983 claim.”
Because of those differences, she told me, “the audience for suppression is different, and the consequences are perhaps less felt by police” because you are talking about the difference between “a weaker prosecution” if a statement is suppressed as opposed to “actual money damages” under a civil rights lawsuit.
Galvin-Almamza also pointed to another area where this decision could make a difference: When defense lawyers are challenging officers’ claims in later criminal cases. “Suppression doesn’t create any record over time that allows people to identify who the bad actors are, inform the fact-finders [criminal juries and trial judges] of that, and let them weigh that accordingly,” she said, in the same way that a 1983 action can.
In other words, if there are records — through 1983 cases, particularly findings or settlements — that an officer has violated constitutional rights in the past, that can be used in later cases to question the officers’ credibility.
Ultimately, the Supreme Court’s decision not to allow 1983 actions for Miranda violations “could increase impunity in criminal court” for officers who repeatedly ignore people’s Miranda rights, Galvin-Almanza told me, “allowing more abuses of individuals on the street, all while weakening our ability to show the truth to fact-finders.”
ONE LAST THING: Rudy Giuliani. (I didn’t get to watch most of the latter part of Thursday’s Jan. 6 Committee hearings about Donald Trump’s efforts to influence the Justice Department in the waning days of his presidency, but here’s my Twitter thread of the part I did watch.)
Justice Brett Kavanaugh, joined by Chief Justice John Roberts, did write a concurrence that purports to address their understanding of the limits of the ruling. Given that they are two of six votes supporting the majority opinion, and five votes are needed to form a majority, this would seem to limit the application of the ruling on the two points their concurrence addresses. (Caveat: When I noted this on Twitter, though, I did receive pushback from people who said that their concurrence, in effect, was irrelevant since they joined Thomas’s majority opinion.)