Out to Lunch?

When a challenge to California’s Roberti-Roos Assault Weapon Ban, Silveira v. Lockyer, reached the Ninth Circuit Court of Appeals in 2002, there was an appeal for an en banc review of the decision that supported the ban. That appeal was denied. In one of the dissents to that denial the very eloquent Judge Alex Kozinski wrote:

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon – a sawed-off shotgun – was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller‘s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

Well apparently you can. In New York’s Goldstein v Hochul case, a suit to remove New York’s ban on firearms in synagogues, citing the Supreme Court’s Bruen decision I have cited here before, the Federal judge has denied an injunction of the ban while the case is being decided. His reasoning?

The Bruen test “is considered by many to be an impractical and intellectually flawed approach.”

AKA: The Supreme Court was “out to lunch” when they last visited a constitutional provision.

His justification?

There were also restrictions on firearms access and ownership by Black people and Native Americans unrelated to whether they were law-abiding. See generally Adam Winkler, Racist Gun Laws and the Second Amendment, 135 Harv. L. Rev. 537 (2023). The implications of firearm ownership in both the founding and reconstruction eras was thus dramatically different from those in 2023, and thus, answering the question of whether statutes and regulations from those respective time periods are “relevantly similar under the Second Amendment”, Bruen, 142 S. Ct. at 2132, is an enormously difficult task that is likely to lead to inconsistent decisions that are untethered to reality, and is considered by many to be an impractical and intellectually flawed approach.

So because certain groups were previously denied the privileges and immunities of citizens under color of law, it’s OK to still do it now?

This fight is long from over.