This is for Ben.

The history of the Second Amendment has been an odd one. For decades, even centuries, it was lumped together with other “anachronistic” rights in the Bill of Rights, largely ignored and underdeveloped as a legal concept. Just like there were few if any cases interpreting the 3rd Amendment (Quartering Troops), until Heller, there wasn’t much Second Amendment case law either.

This is largely because there was no political interest in the Second Amendment until around the mid 1970s early 1980s. The parties were famously united in have limitations on who could possess firearms. Here is a famous quote from a Republican governor:

There is absolutely no reason why out on the street today civilians should be carrying a loaded weapon.

That Republican governor was none other than Ronald Reagan. It was said in 1976 in response to Black Panthers bringing guns to the California state capital. But over time, Republicans recognized the value of being pro-Second Amendment. It was largely an historical accident that it was the Republicans and not Democrats. In the 1980 election gun control advocates pushed Ted Kennedy as the Democratic nominee for President over Jimmy Carter, noting that Carter was “afraid of the militant minority of Americans who will stop at nothing in their misguided efforts to stop handgun control.” The difference between the two parties on this point was, in fact, pretty slight.

But in the last quarter of the 20th Century, the differences sharpened. While it has usually been true recently that Second Amendment advocates tended to be more conservative, this issue, like many, was part of the positional shift between the two parties through the 20th Century whereby the Democrats, favoring segregation in the South in the first half of the 20th Century, switched to an urban and more inclusive party which included embracing gun control, while Republicans launched the famous Southern Strategy in the early 1970s, becoming more conservative and, in turn, opposing gun control. Want a quick synopsis of the switch? Atticus Finch, fictional civil rights icon and classic Southern Gentleman lawyer, was “the best shot in the county.” There is no space politically for liberal gun proponents or their reverse, conservative gun opponents. They exist, but they don’t show up at polls in numbers that make politicians care about their points of view.

For years, while all this political position shuffling was going on, Second Amendment advocates were looking for a test case that would give teeth to the Second Amendment. They found that test case in Heller, which placed the Second Amendment on the same footing as rights like the Fifth Amendment (the right to be free from self-incrimination) and the Fourth Amendment (which bars unreasonable searches and seizures). In Heller the US Supreme Court held, for the first time in the history of the country, that the Second Amendment confers on individuals a right to own and possess arms. McDonald held that this right was a core right and therefore incorporated into the fabric of rights that impact all states. Caetano broadened the scope of protection to include less lethal arms (both Heller and McDonald dealt with guns only). There was still one piece missing—how the individual right to bear arms applies to daily life. That is, does the Second Amendment allow people to carry arms on their person on a daily basis? New York Rifle and Pistol Association v. Bruen, 597 US 1 (2022) answered this question definitively.

Before I get to the case itself, I want to acknowledge the problem of legitimacy on the US Supreme Court. The author of Bruen, Clarence Thomas is the Alpha and Omega of problematic Supreme Court justices—ushering in the modern era of distrust and being at the forefront of the Court’s most recent legitimacy crisis. Having delved deep into his personal history through numerous books and podcsats, I feel compelled by Clarence Thomas’s story of overcoming personal adversity and the lessons his grandfather imparted upon him. He is clearly a smart judge and a good legal scholar. But he has no business still being on the US Supreme Court after his financial problems were disclosed. Any other court in the country would have removed him from the bench, but our US Supreme Court is especially bad at self-reflection. As a lawyer, I am deeply concerned about the Court’s legitimacy, but with their recent half-assed ethics rules announced, I fear we are merely at the dawn of long dark period in the Court’s history, not unlike the one when the Court dealt with the aftermath of slavery, yet another time when politics played an outsized role in the Court’s direction and deliberations. All of this makes me deeply fearful for the future of 2A jurisprudence. I have already complained of the inherent instability in the Originalist jurisprudential approach, but having Thomas, perhaps the worst, most scandal-ridden justice in the Court’s history, author this opinion only draws a bullseye on it that it not need have. History shows us that landmarks decisions like Marbury v. Madison (authored by noted nonpartisan John Marshall) nd Brown v. Board of Education (authored by Earl Warren, a centrist who was nominated by a Republican President and who was, himself, a politican candidate on the Republican ticket) tend to last longer when written by centrist justices than those written by more extreme ones.

Bruen itself is a pretty simple case. New York was, at the time of the decision, one of 6 states and territories that required a special showing to get a permit to carry a handgun. This special showing obligated people seeking the concealed carry license to prove that they had a need for a handgun. General self-defense was not, under the New York licencing scheme, not enough. This directly impacted the rights articulated in Heller. Heller held that the Second Amendment provided for an individual right to carry a firearm. New York’s law limited that constitutional right in a very severe way. So the question the Court had to resolve was which won—the Heller version of the Second Amendment or New York’s licensing law.

It is important to step back here and talk about how “trump” works in our federalist system when dealing with different legal authorities. At the top of the stack is the US Constitution. Nothing trumps that. Below that are federal laws. Federal laws trump state laws. Below that are federal regulations. And then the same order but with state laws. The other rule of federalism is this—state constitutions and laws can give citizens MORE rights, but they can’t give them less rights than they would have under the Constitution. Put another way, the US Constitution represents the floor, the bare minimum of constitutional rights that a person has.

But the New York regulation wasn’t an outright ban on carry. If it was, the rules of federalism would have rendered it null and void immediately. It allowed carry, but with certain limitations. The question then is what limitatations are permitted when it comes to constitutional rights?

Thomas’s answer is extraordinary. There is literally no precedent for it in all of US history. Prior to Bruen the Second Amendment was one star in a constellation of constitutional rights. Post-Bruen it is the North Star, the brightest body in the constitutional heavens. Here is Thomas’s answer:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961).

This “presumptive protection” claim does not apply (yet) to other constitutional rights, such as the right to be free from searches and seizures (where all the police need is reasonable suspicion to pat frisk a person; see Terry v. Ohio). Additionally, in Second Amendment cases, unlike in Fourth Amendment cases, the Government must prove its intrusion is justified (whereas if the Government searches you you have to demonstrate there was an reasonable expectation of privacy; see Katz v. United States).

Bruen’s test then amounts to this:

First, restrictions on the Second Amendment right to bear arms are presumed invalid. Second, the Government can rebut this presumption by showing that there is a history of that particular arm or method of carry being restricted.

Unlike in Heller, in Bruen, there are specific references to knives. In defining “arms” the Court referenced an historical source that found that “almost everyone carried a knife or dagger on their belt” in the medival periods. Bruen at 41. Knives, then, seem clearly within the ambit of the Second Amendment.

Subsequent cases around the country, which I write about in Knife Magazine, have given Bruen a metric ton of force. Time and again restrictions on carrying arms have been struck down, proving that Bruen is what 2A proponents had hoped for—a sea change in the law. Perhaps, the Federal Switchblade Act is the next piece of law to be mauled to death by the bear that is Bruen.