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Exclusive: Guns and Judicial Protection of Constitutional Rights that Put Lives at Risk



Guns and Judicial Protection of Constitutional Rights that Put Lives at Risk

#Guns #Judicial #Protection #Constitutional #Rights #Put #Lives #Risk

In his dissent to today’s Supreme Court Second Amendment ruling in New York State Rifle and Pistol Association v. Bruen, Justice Stephen Breyer reiterates his longstanding argument that gun regulations deserve special deference from courts because guns endanger human life. He argues that the Court’s decisions is wrong because it “severely burdens” States’ efforts to “address some of the dangers of gun violence…. by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds.” It isn’t just that Breyer believes courts must take these “dangers” into account. He contends they justify near-total judicial deference in gun rights cases – deference far-reaching enough to uphold the New York law at issue in this case, which presumptively bans carrying of guns outside the home by nearly all law-abiding citizens, thereby effectively gutting the “bear” part of the right to “keep and bear arms.”

In his dissent in the Court’s last major gun rights ruling, McDonald v. City of Chicago (2010), Breyer argued that these dangers justified refusing to “incorporate” the Second Amendment against state governments at all, even though nearly all other parts of the Bill of Rights have been applied against state governments.

My 2010 critique of Breyer’s McDonald dissent is also applicable to his dissent today, and to similar arguments made by others. The Second Amendment is far from the only constitutional right that poses threats to human life, and may not even pose the greatest such threat. If potential threats to life justify near-total judicial deference, we would soon have few constitutional rights left:

In his dissent in McDonald,… Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.

But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party…., millions of lives would have been saved. The same goes for the Weimar Republic and the Nazis. Closer to home, many black lives could potentially have been saved if the federal government had suppressed neo-Confederate and segregationist political speech in the South in the aftermath of the Civil War, thereby preventing “Redeemer” forces from regaining political power in the region and suppressing black rights.

One could argue that these other rights don’t endanger lives as directly as guns do. Action, not speech or procedural rights, is what really kills people. Perhaps the life-threatening effects of procedural rights and political speech can be forestalled without restricting these rights themselves. However, one could say the same of guns. As the NRA famously puts it, guns don’t kill people, people kill people.


Whether we are talking about guns, speech, or other rights, there are going to be cases where, as a practical matter, it is impossible to prevent death by measures short of restricting the right itself. For example, allowing Nazi speech in the Weimar Republic may have greatly increased the risk that the Nazis would come to power, by which point it was too late too prevent them from killing large numbers of people. Similarly, once free speech by Redeemers and ex-Confederates allowed them to seize control of southern states, it was politically impossible for the federal government to protect black rights against them – at least not without much greater violence than might have sufficed to prevent the Redeemers from organizing in the first place.

In making these comparisons, I do not mean to suggest that judges should allow severe restrictions on constitutional rights any time there is a plausible argument that doing so might save lives. To the contrary, I think judges should generally avoid doing so. The trade-off between lives and constitutional rights is one better made by the framers and ratifiers of the Constitution than by judges. Moreover, there are often risks to life on both sides. For example, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Similarly, strong enforcement of the Fourth Amendment could sometime prevent abusive police behavior that itself endangers lives.

If we allow government to set aside constitutional rights whenever they “put… others’ lives at risk,” we soon won’t have many constitutional rights left. I also object to Breyer’s and Scalia’s more selective invocation of risks to life in cases involving rights for which they have little sympathy, while simultaneously ignoring very similar considerations when the right at stake is one they value more highly…

Breyer tries to limit his argument to “substantive liberty rights,” which may exclude procedural rights such as those protected by the Fourth Amendment or habeas corpus. However, it’s not clear why life-threatening procedural rights should be any more vigorously enforced than similarly risky substantive rights. After all, the purpose of most of the procedural rights is to provide indirect protection for “substantive liberty.” Moreover,…. freedom of speech is surely a “substantive liberty right,” and it sometimes poses serious dangers to life as well.

Since I wrote the above, we have seen more examples of how other constitutional rights can create risks to human life. For example, anti-vaxxer speech might lead people to forego vaccinations that would save their lives. Bogus claims that the 2020 election was “stolen” from Donald Trump pretty obviously inspired the violence of January 6, 2021. Left-wing rhetorical excesses in response to the death of George Floyd might have helped inspire the riots of the summer of 2020. And this list could easily be extended.

Examples like the above have led some (wrongly, in my view) to call for government-imposed restrictions on political speech that spreads various types of “misinformation.” But, even so, few advocate the kind of near-total deference to government speech regulations that Breyer defends in the case of guns. At the very least, government would have to meet a high burden of proof to show that the speech in question really is “misinformation,” and really will have harmful effects that can only be prevented by censorship.

One can argue that guns inherently threaten life, while only a small percentage of exercises of free speech rights or criminal procedure rights do the same. But it is equally true that only a small percentage of gun owners ever use them to commit crimes. In both situations, the case for regulation rests on the theory that we must restrict a wide range of people in order to forestall the relatively small minority who cause great harm.

Like most other constitutional rights, Second Amendment rights are not completely unlimited, and threats to public safety can potentially be weighed in considering whether  particular regulation should be upheld. Justice Clarence Thomas’s majority opinion notes that a wide range of gun regulations are permissible under its reasoning, particularly “shall-issue regimes” – currently in force in 43 states “which often require applicants to undergo a background check or pass a firearms safety course, [and] are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” This point is emphasized even more forcefully in Justice Kavanaugh’s concurring opinion, joined by Chief Justice Roberts. Their concurrence is likely to be influential, because they are the key swing voters on this issue.

Thomas’s opinion also holds that gun regulations are constitutional if they are within “consistent with the Nation’s historical tradition of firearm regulation.” What counts as consistency with “historical tradition” is far from entirely clear. But one factor noted by Thomas is whether the weapons in question are “dangerous and unusual” and whether they are being wielded in ways that create “terror.” But the government will have to actually prove that the weapons in question really are “dangerous and unusual” or that the defendant has wielded his or her gun in a way that terrorizes. Mere assertion and conjecture should not be enough.

There is plenty of room for debate over whether Thomas’ reasoning draws the line between constitutional and unconstitutional regulation in the right place. Here, I just want to make the more limited point that the mere fact that a constitutional right potentially threatens lives doesn’t justify near-total judicial deference of the kind advocated by Breyer and others. If taken seriously, this theory would gut a wide range of constitutional rights.

Even if you reject Breyer’s argument about threats to life, one can still argue for broad judicial deference on gun rights on the ground that the Second Amendment isn’t an individual right at all, but merely a “collective right” of states to organize militias. Alternatively, you can argue that many types of guns simply are not the kind of “arms” protected by the Amendment. Whatever the merits of such arguments, they don’t threaten to undermine a vast range of other constitutional rights. Breyer’s theory, by contrast, does.






Exclusive: Atlanta Fed Tracker Suggests U.S. Is In Recession –




Compelling Television

#Atlanta #Fed #Tracker #Suggests #Recession

“A Federal Reserve tracker of economic growth is pointing to an increased chance that the U.S. economy has entered a recession,” CNBC reports.

“The Atlanta Fed’s GDPNow measure, which tracks economic data in real time and adjusts continuously, sees second-quarter output contracting by 2.1%. Coupled with the first-quarter’s decline of 1.6%, that would fit the technical definition of recession.”

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Exclusive: Farewell to Footnote 3 of Trinity Lutheran –




No Pseudonymity in Challenge to Federal Vaccination Mandate

#Farewell #Footnote #Trinity #Lutheran

Trinity Lutheran v. Comer was decided in June 2017. At the time, Justice Kennedy was still the Court’s swing vote, and Justice Gorsuch was the junior justice. And Roberts made a decision. He included Footnote 3 in his opinion:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

Footnote 3 crafted some sort of distinction between “religious identity” and “religious uses.” That is, Trinity Lutheran only involved a case where the state excluded an institution because of its religious identity, or status. But the funding would buy tire scraps for a playground, which was not a religious use.

Justice Kennedy, as well as Justice Kagan joined Roberts’s opinion, including Footnote 3. But Justices Gorsuch and Thomas refused to join Footnote 3, thus depriving the Court of a majority opinion on that point. Gorsuch wrote a concurrence that cast doubt on the dichotomy in Footnote 3:

Second and for similar reasons, I am unable to join the footnoted observation, n. 3, that “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing.” Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion.

Justice Sotomayor dissented in Trinity Lutheran, joined by Justice Ginsburg. She observed that the status/use line will not hold up:

In the end, the soundness of today’s decision may matter less than what it might enable tomorrow. The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use. See ante, at 1–3 (GORSUCH, J., concurring in part); see also ante, at 1–2 (THOMAS, J., concurring in part) (going further and suggesting that lines drawn on the basis of religious status amount to per se unconstitutional discrimination on the basis of religious belief).

Five years later, with Carson v. Makin, Footnote 3 is gone. Since it was never actually the opinion of the Court, technically, there was no need to overrule any precedent. But Chief Justice Roberts’s majority opinion stealthily eliminates the status/use distinction:

In Trinity Lutheran, the Missouri Constitution banned the use of public funds in aid of “any church, sect or denomination of religion.” We noted that the case involved “express discrimination based on religious identity,” which was sufficient unto the day in deciding it, and that our opinion did “not address religious uses of funding.” . . . Maine’s argument, however—along with the decision below and Justice Breyer’s dissent—is premised on precisely such a distinction.

That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Our Lady of Guadalupe School v. Morrissey-Berru (2020).

Farewell to Footnote 3. Roberts does it so effortlessly. Blink and you’ll miss it.

In the very next paragraph, Roberts endorses the reasoning from Gorsuch’s concurrence–that the distinction between status and use was always illusory:

Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the “nonsectarian” requirement. That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well.In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.

Justice Sotomayor dissented in Carson. And she has a see-I-told-you-so moment:


As Justice Breyer explains, this status-use distinction readily distinguishes this case from Trinity Lutheran and Espinoza. I warned in Trinity Lutheran, however, that the Court’s analysis could “be manipulated to call for a similar fate for lines drawn on the basis of religious use.” That fear has come to fruition: The Court now holds for the first time that “any status-use distinction” is immaterial in both “theory” and “practice.” It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.

And I have to think that Justice Kagan had some buyer’s remorse. She joined the Trinity Lutheran majority, including Footnote 3, perhaps in the hopes of forestalling a bigger defeat. Five years later, we get Carson v. Makin.

So many precedents have been overruled this term that the demise of Footnote 3 has flown under the radar. Red Flag June was one for the ages.

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Exclusive: Marjorie Taylor Greene Says Putin Just Wants To Be Our Friend And Ally –




Marjorie Taylor Greene christian nationalism

#Marjorie #Taylor #Greene #Putin #Friend #Ally

This seems to be a good time to remind ourselves that MAGA has always been a Russian-backed operation to weaken every facet of classic Western liberalism in the United States, especially our adherence to democracy. Putin and his allies found a Republican party that doesn’t want to face the changing demographics and values in the modern United States. Trump can cite “No collusion” all he wants but it is a fact that the Russians dumped money straight into the NRA, fully backed Trump in 2016, surely did it again in 2020, still uses Tucker Carlson as propaganda on Russian television, and – as Marjorie Taylor-Greene becomes more influential than even John McCain might have been at his peak, Russia uses MTG to make Putin’s case here in the United States that it is Joe Biden who is responsible for all those Ukrainian deaths.

Had we just left Ukraine to its own defense, we could have had Russia as an ally, according to Marjorie but we blew it. We helped Ukraine and now Ukrainians are dying. It is Joe Biden’s fault.

Before you guffaw and say “No one will believe her,” just this morning there is a new YouGov poll out showing that 68% of Fox viewers believe that January 6th was primarily instigated by the Left to make Trump look bad.

So, despite the fact that Marjorie’s minute-long diatribe is self-contradicting and unprincipled, it represents the thinking of many MAGA voters. Putin has no agency in this at all. The United States is responsible for the horrors in Ukraine, according to Marjorie:

MAGA was born as an updated version of long-held KGB doctrine that America could be destroyed from within if the Russians could just obtain control of one American political party. From the 1950s to the 1970s, Russians focused on the American left. By the early 21st Century, Russia was dumping money into the NRA, and the control was near-cemented in the 2016 Republican party convention when the Trump team demanded only one change to the Republican platform, that portion that opposed the 2014 Russian invasion of a portion of Ukraine. MAGA was Russian-produced then, MAGA is Russian-produced now.

In 2020 the GOP didn’t have a platform. Autocrats don’t have “policy beliefs,” they believe in power.

We would all do well to accept the fact that the leaders of the Republican party look to the Russian government and see what they want. A one-party state, run by the right people, without time for your niceties, and classic liberalism. Fascism is a much better system when the primary goal is keeping wealthy conservative white men at the top. Despite yeoman’s work by the Select Committee, things continue to fall into place to ensure that we get there, even if Trump goes to prison, see our newly freed SCOTUS. Getting rid of stare decisis will be essential to instilling a new type of American government, one that is constitutional in name only.


Marjorie Taylor-Greene doesn’t have the intellectual ability to set out her argument in any sort of believable way, but she’s giving us the main gist here. We should never have stood up for democracy. We could have been allies with Russia (wouldn’t that have been great) but now she worries we won’t be allies for a long time. We blew it. The United States could have been lucky and been Putin’s friend, instead we chose to destroy Ukraine.

Putin couldn’t tell the story better.


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