Editorial | 2022.06.25

Neural dall-e George Washington Supreme Court riots

Back in November I mused that Chief Justice Roberts was being duplictous in claiming, "[the Supreme Court], I think, generally don't reinvent the wheel" regarding the distinction between self-defense at home and in public (Heller):

Me Me I have a sinking suspicion the 'generally' qualifier was purposeful - like "we're gonna overturn Roe v. Wade" purposeful.

It was part of an investment discussion (RGR up 8% since Thursday) and seems to have been proven true as the Supreme Court struck down both may-issue concealed carry and Roe.

Band-pass filter

This week has felt significant enough to reflect on - like January 6th was and Ukraine was and GME was.

News and social media are currently awash with political and ideological discussions. The discussions are largely moot; the rulings have been made and the candy isn't going back in the pinata. I have no intention of joining the fray here or elsewhere, but I am interested in spitballing what's coming next. And one other thing:
Roe and the fall of the Supreme Court

Reddit Photoshop Battles Supreme Court coathanger
From Reddit's /r/photoshopbattles.

In the defense of the justices representing the majority opinion, I think a lot of people are calling their decision politically-motivated simply because they disagree with the decision. It's pretty normal to attack someone's motivations because you don't like their conclusion.

That being said said, the Dobbs v. Jackson ruling was the death of the apolitical Supreme Court.

Calling the Supreme Court historically apolitical might sound like the most naive perspective in the entire controversy. But it's what's taught in schools (even universities) and it's a point that the justices themselves have consistently reinforced to the public. And there's reason to believe them. Supreme Court decisions provide lengthy and heavily-scrutinized justifications - they can't simply bail on an interview or call dissent 'fake news'. Supreme Court justices are theoretically insulated from political coercion by having a lifetime appointment. Even the Trump appointees ruled against him in the National Archives case.

The fall

Neural dall-e supreme court on fire devil triangle
A Devil's Triangle, per Dall-e.

The media hasn't dropped the ball on the critical element here: they've run clips of each of the concurring justices (and Roberts) lying in their confirmation hearings about their opinion of Roe. Some have focused on the personal drama, "you lied to the American people and perjured yourself". Some have used less severe terms, "you dodged providing a direct answer to the question with phrases like, 'I believe it's settled law'".

Does the distinction between weasel words and an outright lie matter? No. These are Supreme Court nominees we're talking about. They are held to a different standard from used car salesmen. Probably all of them claim a religion that has doctrine for lies of omission. However you want to get there, they lied under oath.

Does the distinction between weasel words and an outright lie matter? Yes, it absolutely does. That last paragraph was right, but also wrong. If Alito and Gorsuch and Coney Barrett had simply lied about their intentions, their own reputation might be shattered but the court's reputation could be preserved. But they didn't just lie. They used crafted non-answers to circumvent telling a clear lie while intentionally misleading the American people.

"I believe Roe is settled law" was, simply, electioneering.

The campaign

Neural dall-e Supreme Court tank

While Justice Roberts is content to simply sound the death knell of the apolitical Supreme Court, Justice Thomas seems to have gone full General Sherman on his opponents' agenda. If you'll recall, Thomas was the only dissent in Trump v. Thompson. In Dobbs, his concurring opinion sets an agenda for future reversals of civil liberties.

So much for not "reinventing the wheel".


And there really isn't anything that can be done. Impeaching a Supreme Court justice requires 2/3s of a Senate that has spent decades practicing how to circle the wagons. So cases will continue to be escalated to the Roberts court and they can continue to rule based on their agenda (or that of the political powers that installed them).

The only out for the pro-choice crowd seems to be the end of the filibuster; something that brings a host of collateral effects. And even ending the filibuster to be too little/too late for this particular issue. SCOTUS has ruled that abortion (pregnancy-related privacy) is not a constitutional right. So the only way to get it back is a constitutional amendment, something that's even more difficult than impeachment.

Neural dall-e US map pistol supreme court

Friday's ruling stole almost all of the headlines and discussion from the one handed down the day before; the Bruen ruling on concealed carry. The nuances of this one may be unfamiliar to some, so here's the TLDR:

What changed on Thursday

Musketman in front of United States map drawing neural dall-e

The ruling bans may-issue and thereby forces states to allow people to obtain CCW permits with standards reflecting Bill of Rights-era regulations. The decision lays out the Court's rationale and guidance for lower courts, largely providing a constitutional originalist policy toward gun control.

To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

Originalism, so only muzzle loaders are covered in the decision?

Neural dall-e Clarence Thomas Antonin Scalia

The [cited historical] statutes essentially prohibited bearing arms in a way that spread "fear" or "terror" among the people, including by carrying of "dangerous and unusual weapons." Whatever the likelihood that handguns were considered "dangerous and unusual" during the colonial period, they are today "the quintessential self-defense weapon." Thus, these colonial laws provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

Those three sentences are quite a trip, leaning heavily on "quintessential" and "common" while totally ignoring the fact that human mortality hasn't kept pace with the lethality of firearms. The next paragraph may be the wedge for the next big 2A case:

Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it Indeed, the Court recognized in Heller at least one way in which the Second Amendment's historically fixed meaning applies to new circumstances: Its reference to "arms" does not apply "only [to] those arms in existence in the 18th century."

So can I finally exercise my constitutional right to defend myself on an airplane?

Neural dall-e pistol American flag

Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of "intermediate scrutiny" often defer to the determinations of legislatures. While judicial deference to legislative interest balancing is understandable?and, elsewhere, appropriate?it is not deference that the Constitution demands here.


The constitutional right to bear arms in public for self-defense is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need.

Probably no planes and no courthouses in the same way that there are specific exceptions to free speech.

What's next

It seems that the (Heller) concept of separating self-defense at home and in public has been upended. Regardless of where you fall on 2A issues, the risk calculation has changed in formerly may-issue states. It's really easy to not go to someone's private property if you don't blindly trust strangers with weapons. Public places are both completely unavoidable and more populated than a private residence or business.

Like with Roe, Thomas seems to be laying the foundation for a rather substantial agenda.

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