The one thing that Vox correspondent Ian Millhiser gets right in his coverage of the Supreme Court’s oral arguments over Hawaii’s “vampire rule” is that he anticipates the law will be struck down when the Court issues its opinion in Wolford v. Lopez.
Almost everything else in his column, however, is so colored by his animosity towards the Second Amendment that it defies reality, like his claim that the oral arguments show the Court’s framework for Second Amendment cases is falling apart.
The Supreme Court’s Republican majority spent much of Tuesday morning trying to figure out how two mutually exclusive principles can both be true at the same time. One principle is that all Second Amendment cases must be judged using a bespoke legal rule that only applies to the Second Amendment. The other principle is that the right to bear arms must not be treated differently than other constitutional rights.
I can’t help but wonder if Millhiser is living in an alternate reality, because the oral arguments that I listened to didn’t feature justices wrestling with how to reconcile the “text, history, and tradition” test with the principle that the Second Amendment isn’t a second class right. There was debate over a number of topics, including the level of generality that can be used when looking for historical analogues to modern gun laws and whether or not patently unconstitutional laws from the past can or should be used as analogues, but the conservative majority didn’t express any consternation with the test laid out in Bruen.
This bespoke rule for Second Amendment cases is so vague and ill-defined that judges from across the political spectrum have complained that it is impossible to apply. But, in Wolford, Hawaii’s lawyers made a very strong argument that their law should survive Bruen. Their brief names an array of old laws that are very similar to the Hawaii law at issue in Wolford.
A 1771 New Jersey law, for example, barred people from bringing “any gun on any Lands not his own, and for which the owner pays taxes, or is in his lawful possession, unless he has license or permission in writing from the owner.” A similar 1763 New York law made it unlawful to carry a gun on “inclosed Land” without “License in Writing first had and obtained for that Purpose from such Owner, Proprietor, or Possessor.” And these are just two examples of the kinds of laws that existed in the 1700s that resemble Hawaii’s law.
But it turns out that none of this history actually matters, as all six of the Court’s Republicans — including Justice Amy Coney Barrett, who did have some tough questions for lawyers on both sides of the case — signaled Tuesday that they are likely to strike the law down.
The only two analogues offered by Hawaii that the Ninth Circuit found appropriate were the 1771 New Jersey law Millhiser mentions, and an 1865 statute from Louisiana that barred individuals from carrying guns onto a plantation without the owner’s express permission. Those two laws don’t suffice to prove a national tradition of banning guns by default on all private property open to the public, for several reasons.
First, two laws aren’t enough, in and of themselves, to show a national tradition, no matter how closely they resemble Hawaii’s law. And these statutes don’t bear much resemblance to the law in question. Both of the laws dealt with private property that was typically not open to the public, and as plaintiffs’ attorney Alan Beck noted, at least one of the statutes had an exemption for carrying a firearm for the purposes of self-defense.
So yes, it does appear that none of this history matters to a majority of the Court, and for good reason. Millhiser, though, insists that the justices are engaged in a double standard.
One of the Republican justices’ primary arguments against the Hawaii law was that the law would be unconstitutional if, instead of applying Bruen’s historical test, the Court were to apply a more normal approach to constitutional interpretation.
Chief Justice John Roberts, for example, suggested that the First Amendment does not permit a state to forbid people from knocking on a private property owner’s door and asking for their vote. So why should the Second Amendment be read to allow states to bar this person from carrying a gun? As Roberts argued, one of the “motivating concerns” behind decisions like Bruen is that the right to bear arms has historically been treated as a “disfavored right.” And thus there shouldn’t be disparities between how the Court treats the First Amendment and how it treats the Second Amendment.
Similarly, Justice Samuel Alito accused Neal Katyal, the lawyer for Hawaii, of “just relegating the Second Amendment to second-class status.”
But if Roberts and Alito don’t like the fact that Second Amendment cases are treated differently than First Amendment cases, they have no one but themselves to blame. Again, Bruen announced a bespoke legal test, which fetishizes history, and which applies to no other constitutional right. So a court that fairly applies the Bruen test will sometimes reach different results than they would if they applied the legal rules that apply in First Amendment cases.
If Roberts and Alito don’t like this reality, the obvious solution is to overrule Bruen.
Roberts made the First Amendment comparison because Justice Ketanji Brown Jackson was arguing that this was really a case about property rights, not the Second Amendment. The Chief Justice was simply pointing out the scope of those property rights when they conflict with other rights, while correctly noting that the Second Amendment is just as important as other enumerated rights.
Millhiser confuses the fact that Roberts, Alito, and other conservative justices rightfully believe the Second Amendment is just as important as the First Amendment with his belief that the Bruen test is unworkable; a position echoed by Hawaii’s attorney Neal Katyal during oral arguments, when he argued that it forces governments to find a historical basis for virtually every law that touches the right to keep and bear arms. But as both Brett Kavanaugh and Amy Coney Barrett pointedly reminded him, that’s exactly what the Supreme Court has said.
Is it true that the a court that fairly applies the Bruen test will sometimes reach a different conclusion than it would if it used the tiered-scrutiny test applied to First Amendment cases? Yes, because most courts that used tiered-scrutiny to examine gun laws deployed an “intermediate scrutiny” test that allowed for virtually every challenged gun law to be upheld so long as the government declared that the law was adopted to promote the government’s interest in public safety. Under the Bruen test it doesn’t matter why a particular law was passed. What matters is whether or not it comports with the Founders’ view of the right to keep and bear arms.
Millhiser’s argument is all over the place. He says that the Bruen test is unworkable and should be overturned, but also claims that “[i]f Bruen were applied honestly, this web of old laws seems to require courts to uphold Hawaii’s law.”
Milhiser’s real position is that the Second Amendment doesn’t protect an individual right at all. As he wrote in 2022:
One of the most consequential choices by policymakers to choose gun rights over sensible policy came in 2008, with the Supreme Court’s decision in District of Columbia v. Heller. By a 5-4 vote, the Court held, for the first time in American history, that the Second Amendment protects an individual right to possess a gun. Among other things, Heller gave special constitutional protection to handguns.
Millhiser’s going to have a problem with any Supreme Court decision that respects the right to keep and bear arms, no matter what test is used to reach that conclusion. His anti-2A zealotry has blinded him to reality, and has put him the position of writing gun control fan-fiction about the justices wrestling with an incompatible position that simply doesn’t exist.
Editor’s Note: The mainstream media continues to lie about gun owners and the Second Amendment.
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