Trump Judge Rejects Lily-Livered Wokeness Of Antonin Scalia
Kansas judge rules that Second Amendment covers unfettered access to machine guns... something Scalia was very clear it did not.
The Batman movies taught us that you either die a hero or live long enough to see yourself become the villain. Justice Antonin Scalia appears to have managed the former, passing in 2016 before seeing the most recent spate of conservative federal judges rail against the pinko cuck liberalism of Scalia’s jurisprudence.
And so Scalia, who explicitly wrote in Heller v. DC –articulating a Second Amendment protection for an individual right to bear arms for self-defense — that nothing about the Second Amendment would prohibit a law against machineguns has become the villain as Trump judge John Boomes struck down the law against machineguns. Dismissing soy boy Justice Scalia and his Heller argle-bargle along the way:
Calling All Biglaw Pros! Your Dream Job Awaits—Take Our Survey
Yes, Antonin “Sca-liberal” was apparently wrong in the majority ruling in Heller v. DC, when he noted that it “would be a startling reading” if the Second Amendment could “mean that the National Firearms Act’s restrictions on machineguns… might be unconstitutional….” Scalia, as his clerk John Bash explained in a New York Times article envisioned a number of constitutional gun regulations:
Justice Scalia — the foremost proponent of originalism, who throughout his tenure stressed the limited role of courts in difficult policy debates — could not have been clearer in the closing passage of Heller that “the problem of handgun violence in this country” is serious and that the Constitution leaves the government with “a variety of tools for combating that problem, including some measures regulating handguns.” Heller merely established the constitutional baseline that the government may not disarm citizens in their homes. The opinion expressly recognized “presumptively lawful” regulations such as “laws imposing conditions and qualifications on the commercial sale of arms,” as well as bans on carrying weapons in “sensitive places,” like schools, and it noted with approval the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Heller also recognized the immense public interest in “prohibitions on the possession of firearms by felons and the mentally ill.”
L.O.L.
Anyone sufficiently distanced from the intoxicating air of the Supreme Court inner circle knew Heller was only the opening act for a broad rewriting of the entire framework of gun laws that would eventually arrive in Bruen. Would Scalia have actually upheld his “sensitive places” logic were he around for Bruen or would he have swiftly and disingenuously cast it aside as meaningless puffery intended to move the Overton Window closer to the vision of Bruen? I have suspicions, but for now let’s play textualist and take Scalia at the words he actually wrote as opposed to those he might have signaled, and assume he was at least serious that the history and tradition of the Second Amendment could not countenance a ban on regulating machineguns.
Sponsored
Calling All Biglaw Pros! Your Dream Job Awaits—Take Our Survey
Biglaw Professionals: We Want To Know About Your Dream Job
Raising The Bar in Bar Prep
How To Maximize Productivity With Westlaw Precision With CoCounsel
So far Bruen has proven to be a rewrite that’s so disastrously ill-conceived that every justice save Clarence Thomas ran from its outer limits like grade schoolers fleeing a mass shooter at the first opportunity — ruling that, “well, sure, um, teehee, we obviously think we can dispossess Grand Theft Auto NPCs of their guns even though there’s no “historical” basis for this.” But Rahimi‘s fact-specific retreat the framework of Bruen left the framework untouched guaranteeing more needless clutter on federal dockets as interest groups seek clarification that the “historical tradition” of the Second Amendment covers BFG9000s.
The opinion from Trump judge John Broomes takes Bruen and runs with it, laughing off that wild-eyed hippie Scalia as a crank who let his dicta get away from him:
The Heller language cited by the government is unavailing. First, the government’s interpretation of Heller relies exclusively on dicta (and circuit authority that predates the historical analysis mandated in Bruen)—machineguns were not at issue in Heller.
There is, of course, a wild circularity to the idea that a precedent from 1939 should be ignored for predating the “history” invented by Bruen in 2022, but logic is the hobgoblin of serious people.
As Professor Charles noted on social media, every circuit that has taken up the constitutionality of the machinegun law — including those that have addressed it post-Bruen — has rejected the cockamamie theory that the Second Amendment contemplated such a wholecloth rejection of regulatory authority:
Sponsored
Attention Buyer: Not All Legal AI Models Are Created Equal
How To Maximize Productivity With Westlaw Precision With CoCounsel
As he notes, Broomes has walked far enough out on the ledge that even the craziest of appellate courts are unlikely to follow. And yet, as we read the ramblings of recent circuit appointees from across the country — and particularly from the neighboring Fifth Circuit — one suspects that it’s only a matter of time until one of these cases slips through and forces the Supreme Court into another reckoning with the mess they made with Bruen.
A reckoning that will again, doubtless, end with a narrowly tailored exception leaving lower courts just as aimless as before.
In any event, here we are in 2024… with Antonin Scalia’s explicit language earning eye rolls from the conservative legal movements new foot soldiers.
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 or Bluesky 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.
