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The thing about grievance culture is it never ends. There’s always something else to cry about when your whole identity is wrapped up in the idea that someone — usually someone who doesn’t look like you — is out to get you.
Unsurprisingly, the people who think the woke mob is responsible for everything from their layoff to little Katie turning them down for prom are big gun fans. Self-esteem with a handle.
As it happens, these folks have “won” everything they wanted. In Bruen, the Supreme Court went ahead and fulfilled the promise of Heller and found an individual right to guns grounded in the Second Amendment. But rather than take the W, they’ve embraced the Orwellian “we’ve always been at war with Eastasia” approach and will launch into conniptions if you point to the world before Heller.
It all started with a citation to a 2006 piece by law professor Adam Winkler:
This claim shouldn’t be controversial unless you’re against “counting” and “linear time.” Professor Winkler wasn’t even talking about federal cases in this article because it was pretty well-established that the Second Amendment did not give people a federal right enforceable in their state. These challenges all involved state constitutions with language mirroring the Second Amendment and of THOSE hundreds of cases, only six struck down a regulation.
I retweeted this same observation with more provocative language, but the same conclusion:
Which also shouldn’t be controversial. It’s cliché at this point to recognize that the far-right of the Supreme Court agreed on this as recently as the 1990s, but clichés achieve that status for a reason.
You can believe the words of the Second Amendment support an individual right to guns if you want, but you can’t pretend that existed before Heller.
But gun folks went BONKERS over the mere suggestion that there was a history of law and jurisprudence before 2008. Not gonna lie, watching the gun freak meltdown over this tweet has brought me tremendous joy.
To reiterate, neither of these tweets even suggest that Heller or Bruen are wrongly decided. The sole claim here is that reading an individual right to possess guns regardless of state regulation is a new reading of the Second Amendment.
This is important because literally no one ever responds to this point.
A more representative sample of responses:
* “What an unbelievably wrong takr”
* “This is a fucking lie”
* “How did you pass high school?”
* “Erroneous”
All fascinating, yet not exactly impeaching the original claim.
Perhaps the folks with big followings are bringing the meat of the challenge:
Mind you, this is not the beginning of a thread. There’s nothing after this. The words “it just is” represents the sum total of his argumentative acumen. Actually, that’s not fair… the GIF is.
In a tragic development, his 280 characters got swallowed by all those adverbs, which prevented him from actually presenting any substantive factual, intellectual, historical, legal, or academic argument. Maybe when Elon buys Twitter he’ll up the limit so this guy can find literally anything to say.
Unfortunately, this is the state of the discourse: sound and fury signifying nothing trying to drown out anyone citing evidence.
Why do these people care so much? Well, they love to live by the sword of vague originalism when it’s stripping away civil rights, but really hate dying by the sword when anyone pokes into why George Washington lead an army to crush the Whiskey Rebellion for stockpiling weapons outside the aegis of the state militia. Originalism has them tied in knots and it’s just not enough that the right exists now… it had to always exist. And where the past can’t support that, it must be suppressed.
Expunge the ratifying statements explicitly identifying the right as a matter of protecting states from a federal army (the army ship — ironically — has sailed)! Forget the contemporaneous gun regulations in place that the amendment’s framers accepted! Ignore that George Mason — as the primary author of the text — didn’t support this reading and expressly rejected the Jeffersonian proposal (suggested for the earlier Virginia Constitution) of an individual right! Erase the caselaw… including the hundreds covered by Professor Winkler’s article. Justice Stevens laid out all this history in Heller, the folks complaining on social media just wish that record wasn’t there.
While the sad trolls are fun to laugh at, a few people actually tried to bring something to the discussion. Unfortunately, none seemed to have a grasp of the material they cited. One posted a third-party summary of Presser v. Illinois (1886) — a case about a law banning people from forming private militias — that said “the Second Amendment right was a right of individuals, not militias, and not a right to form or belong to a militia, but related to an individual right to bear arms.” These words, of course, are found nowhere in that opinion. In reality, the opinion reaffirmed that the Second Amendment “has no other effect than to restrict the powers of the national government” and that state and municipal regulation is allowed. The only wrinkle it added to the Second Amendment landscape was the observation that states can’t pass gun laws “so as to deprive the United States” of a reserve military force. Not only is this not particularly relevant today — since warfare is no longer BYOG — it certainly isn’t laying the groundwork for an individual right.
Another cited a legal treatise written in 1824 by William Rawle, who had served in the legislature that ratified the Second Amendment:
In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent…
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
The thing about cherry picking is that it only works if you assume the other person won’t go back and check your work. But I will!
A practice pointer for young lawyers: be wary of an ellipse. This particular ellipse cuts out some pretty important stuff! Like Rawle’s explanation that “well regulated” is expressly included in the text because it imposes a duty upon state governments to regulate guns for the purpose of “mak[ing] good soldiers.” Likewise, if this person then read for TWO MORE PARAGRAPHS, they’d have found that Rawle believed states can impose any regulation on guns necessary to avoid “the disturbance of the public peace,” and that open carry provides sufficient cause for authorities to stop anyone and warrants “imprisonment” if that cannot prove good intention.
I guess this is why the more seasoned responders restricted their comments to “you’re just wrong.” As superficial as that may be, support for their position just goes downhill from there.
Earlier: Gun Ruling Proves Supreme Court Just Coasting On Vibes At This Point
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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