Once Again, An Analysis Of A SCOTUS Decision Is Distorted By Emotion And Ignorance

This is a problem. And I’m just talking now about the previous SCOTUS ruling that launched a freak-out yesterday. As you probably know by now, the leaked SCOTUS ruling rebuffing Roe v. Wade is no longer a leak.

The Supreme Court ruled 6-3 to strike down a restrictive “needs-based” concealed carry laws in New York State Rifle & Pistol Association v. Bruen.  Even though Justice Thomas’s majority opinion was tight and clear as well as consistent with SCOTUS precedent as well as, of course, the Bill of Rights, such worthies as President Biden claimed that, in the President’s words, the ruling contradicted “common sense and the Constitution.”

What are the odds that Joe read the opinion before declaring that? I’d say “none.” Making such a statement while carrying the presumed authority of President without knowing what the Court’s analysis was is completely unethical and an abuse of position.

David Harsanyi, writing at RealClearPolitics, accurately writes,

The modern left doesn’t even bother pretending they believe the Supreme Court has a responsibility to act as a separate branch of government and adjudicate the constitutionality of law. Rather than even ostensibly offering legal reasons for their ire, Democrats simply demand the Supreme Court uphold public sentiment (or, rather what they claim is public sentiment), even though SCOTUS exists to ignore those pressures. The fact that that attitude has congealed as the norm in one of our major political parties does not bode well for the future of the Republic.

It is particularly disheartening that the three liberal justices in their dissent stooped to fueling this distortion of the Court’s role. Their arguments were almost all irrelevant to the  constitutional issues and the Court’s previous rulings regarding the Second Amendment. Instead, Sotomayor, Breyer and Kagan took the low road of evoking recent shootings and incidents of gun violence as if current events should permit the limiting of explicit Constitutional rights. 

The dissent was so egregiously political that  Justice Samuel Alito filed a a concurring opinion devoted entirely to pointing out how intellectually dishonest the dissenters were. I find Alito to be too much on an ideologue for my tastes, but he’s a deft jurist, and he shreds the logic of the dissent. Naturally, none of the opinion’s critics will read it.

Alito wrote in part,

Much of the dissent seems designed to obscure the specific question that the Court has decided, and therefore it may be helpful to provide a succinct summary of what we have actually held. In District of Columbia v. Heller, 554 U. S. 570 (2008), the Court concluded that the Second Amendment protects the right to keep a handgun in the home for self-defense. Heller found that the Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of resistance and self-preservation.’”  “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”  Although Heller concerned the possession of a handgun in the home, the key point that we decided was that “the people,” not just members of the “militia,” have the right to use a firearm to defend themselves. Andbecause many people face a serious risk of lethal violence when they venture outside their homes, the Second Amendment was understood at the time of adoption to apply under those circumstances. 

The Court’s exhaustive historical survey establishes that point very clearly, and today’s decision therefore holds that a State may not enforce a law, like New York’s Sullivan Law, that effectively prevents its law-abiding residents from carrying a gun for this purpose. That is all we decide. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561 U. S. 742 (2010), about restrictions that may be imposed on the possession or carrying of guns.

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post, at 1–8 (opinion of BREYER, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years?Post, at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator. What is the relevance of statistics about the use of guns to commit suicide? See post, at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?  The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in  this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home?Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1). The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home.

And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law. Each year, the New York City Police Department (NYPD) confiscates thousands of guns, and it is fair to assume that the number of guns seized is a fraction of the total number held unlawfully. The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City. Some of these people live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.

Ordinary citizens frequently use firearms to protect themselves from criminal attack. According to survey data, defensive firearm use occurs up to 2.5 million times per year. 

I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional. 

Well done. It’s too bad that 95% of those emoting about the ruling won’t read it, and couldn’t understand Alito’s explanation if they did.

Meanwhile, Gallup released a poll yesterday showing that public “confidence” in the Court has hit a new low. Those opinions are based virtually entirely on spin, misinformation and propaganda from the mainstream media as well as irresponsible pronouncements from politicians. In using false standards to criticize their own colleagues’ majority ruling, the dissenters not only fed the public’s lack of confidence, but, ironically, justified it. At this point, I have no confidence in the Court’s Left Wing to stick to the law rather than to its progressive mission.

25 thoughts on “Once Again, An Analysis Of A SCOTUS Decision Is Distorted By Emotion And Ignorance

  1. At this point, I have no confidence in the Court’s Left Wing to stick to the law rather than to its progressive mission.

    What’s remarkable to me is that it took this long for you to become convinced of this. We have seen just this type of insane, agenda-driven jurisprudence from the Left, including the Supreme Court’s left, for a long time. Heck, the confirmation hearings of both Sotomayor and Kagan were sufficient to convince me that their judicial opinions were unmoored from the Constitution’s text. Breyer, well, I can understand how you might be inclined to defend him — he has occasionally authored some opinions that were at least within shouting distance of Constitutional sanity.

    This one, however, either places him firmly in the ideologue camp, or in a place where he felt his legacy required him to defer to the two Obama ultra-liberals. Either way, he removed all doubt with that op-ed couched as judicial scholarship.

    It will be interesting to see how the Left responds. I predict it will include actual violence, and lots of it, to go along with insane rhetoric and possibly a Constitutional crisis.

  2. In the meantime all the liberal women I know are changing their FB profile pictures to Handmaiden’s Tale ones.

    • Re Hand maidens Tale
      Has anyone considered that the corporatist community wants women with or without children in the workforce to depress wages for all by increasing the supply of labor. Seems to me these women are chained to their desks instead of the proverbial kitchen. The idea that old white men want women as baby factories that the men must support is one I cannot support. If anything, the idea of sex without cost especially financial costs seems to benefit men more than women.

      • Sooner are you referring to my comment? I was being serious such that the entire theme of the Handmaide’s tale was about subjugation of women using their uterus as a chain of bondage. Promoting abortion for economic and professional advancement reasons may not be rooted in the best interests of women when in fact the economics of abortion do have an impact on labor supply and wages which benefits corporate interests. Fewer women with children reduces the need for flexible working conditions, absenteeism, and lowers health care costs. Abortion also gives irresponsible males an avenue to escape the financial responsibilities of fatherhood. Is it possible that the learned behavior of males knowing they can escape responsibility over the last fifty years has exacerbated the problem of single unwed mothers who chose to carry the child to term? The highest predictor of childhood poverty is being born to a single parent. Lack of fathers has given birth to a generation of children who give no respect to others but demand it for themselves. This may sound like an argument for abortion. It is not . I simply am trying to demonstrate that third parties such as political parties, corporations and private entities gain substantial benefit from the concept of abortion on demand and gaslight women into believing it is only about bodily autonomy. My point is merely this ; do those pushing the notion of the Handmaid’s Tale as a metaphor for this decision gain economic or political benefit by keeping abortion on demand legal? I say they very well may.
        Prior to 1971 single earner families could buy a home and have some basic luxuries. Today, when one earner loses an income the economic well-being of all falls precipitously.
        I am simply approaching this issue from an economic perspective and not an ideological one.

        • Right now the Chyron on CNN is Corporations Taking Action on News of Roe v Wade being overturned.

          Why do they care??

        • My comment was supposed to be directed towards Steve O saying some of his Facebook friends are changing their statuses to a picture of the handmaids tail. I apologize if I made a mistake somewhere and accidently replied to you.

          • Not a problem. Sometimes when I try to advance an idea In this type of forum I tend to abbreviate the detail underlying the central theme. Occasionally, that abbreviated thought gets misconstrued

      • Shouldn’t these women be a little timelier in shouting, “Keep your hands (and other appendages) off my body?”

  3. Some of my liberal friends are pulling their hair, rending their garments and starting the old “I want to move to Canada” mantra (again). As always, I tell them, “Delta is ready when you are!”

    • One of my (very) liberal neighbors, fairly seething, expressed disappointment in today’s decision.
      I couldn’t think of anything to say that would assuage her anger and just when there was a two second opening, I blurted out ~~~> safe sex.
      Well for some reason that didn’t help and I ended up just walking away from her avalanche of disdain satisfied knowing I at least tried to be helpful.

      • It ain’t easy to move here. If a prospective immigrant has enough $$$, they can buy in under various immigrant investment programs but otherwise, the number of points one needs to come to Canada and the difficulty in achieving them is high. Then they face the sticker shock of how much it costs to buy a home or rent here.

        If Canada had a nickel for every (whinging) American who doesn’t like the result after an election or court decision and threatens to move here, Canada would still be broke. It’s the emptiest of empty threats. Hell, I’d speculate that most of ’em don’t even have a passport. How are they going to get here?

        A few actor types have done this over the years. Michael Moriarty, of Law and Order fame, did shortly after leaving the show, declaring himself a political exile. He is now a joint US-CA citizen.

        But the only real exodus that I can recall stemmed from the Vietnam War. Dodgers/evaders/resistors, choose your preferred name, came in large numbers. Canada didn’t grant political asylum then and certainly won’t now. No official estimates exist as to numbers but Wikipedia, the worlds most accurate source of all facts, says between 30000 and 40000 came. At least the cite at Wikipedia is to a government publication. Those numbers are quite significant, even if they are spread over quite a few years.

  4. Biden is on since 12:30 with a speech about the decision. I’m not watchiing it but I’m looking forward to some commentary and analysis here at EA to his speech.

  5. What are the odds that Joe read the opinion before declaring that? I’d say “none.”

    FJB has to finish his coloring book first.

    Instead, Sotomayor, Breyer and Kagan took the low road of evoking recent shootings and incidents of gun violence as if current events should permit the limiting of explicit Constitutional rights.

    This would be exactly like the Supreme Court upholding a law outlawing abortions absent a special need, on the basis that it threatens fetal life, even if there was a provision in the Constitution expressly stating that the right for a girl or woman to terminate her pregnancy shall not be infringed.

    This is one thing that disturbs me. The same people who argue that the Constitution somehow protects the right to an abortion even though the word does not appear in the text also argue that states can infringe on the Second Amendment because of the threat of mass shootings (note that these people no longer complain about gang violence.)

    In addition, the three dissenters could have instead concurred with the judgment on well-established equal protection grounds. The law not only gives cops discretion, it forbids state courts from reversing a denial if the police had a rational basis to deny the permit.

    As a matter of fact, in State v. Sum, the Washington Supreme Court pointed out that “implicit racial bias
    exists at the unconscious level, where it can influence our decisions without our
    awareness.” (internal citations omitted) And yet, these implicit biases did not matter to these three justices.

  6. It is possible for someone (probably not many people) to be in favor of the right to an abortion in reasonable circumstances and also to agree with the decision as a state’s rights issue, a federalism argument followed by an argument for a particular state to legalize abortion.

    I don’t personally hold that position, but the opinion itself does not require one to be for or against the practice generally.

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