Is SCOTUS Retreating on Second Amendment?

Is the Supreme Court retreating from its landmark vindication of the Constitution in New York State Rifle & Pistol Association v. Bruen? Today’s ruling upholding Biden-era regulations on so-called “ghost guns” gives one pause, especially because it features a dissent by the author of Bruen, Justice Clarence Thomas. The high court’s senior justice decries the majority for backing “the Government’s overreach” in regulating homemade gun kits.The homespun firearms — largely untraceable and assembled from what the ATF calls “weapon parts kits” — recently made headlines when the accused assassin of UnitedHealthcare’s chief executive reportedly used a ghost gun in the crime. Some 27,000 ghost guns were recovered by authorities from crime scenes in 2023, the Justice Department says, compared with less than 1,700 in 2017. President Biden sought to regulate ghost guns in 2022.That attempt, though, was challenged in federal courts on the grounds that the bureaucrats had exceeded their authority under the Gun Control Act of 1968 when they drafted the regulation. That law, Justice Neil Gorsuch’s majority opinion notes, “requires those engaged in importing, manufacturing, or dealing in firearms to obtain federal licenses, keep sales records, conduct background checks, and mark their products with serial numbers.”The Biden-era rules, which require serial numbers on many homemade gun kits — as well as background checks and age verification when selling the devices — are not “facially inconsistent with the statute,” Justice Gorsuch concludes. That’s hardly a ringing endorsement, and he concedes that the merit, per se, of the rule, could warrant a closer look: “Future cases may present other and more difficult questions about ATF’s regulations.”The two dissenters today, Justice Thomas and Justice Samuel Alito, take a more skeptical look at the ATF’s rule. “Unlike a disassembled firearm,” Justice Thomas reckons, “a weapon-parts kit requires more than merely assembling the parts to become a functional gun.” He notes that “special tools and an indeterminate amount of time” are needed to make the kit into a weapon, and therefore the kits do not constitute a weapon falling under the law’s ambit.“Congress could have authorized ATF to regulate any part of a firearm or any object readily convertible into one,” Justice Thomas explains, “but, it did not.” In other words, if Congress wanted to treat ghost guns, or homemade gun kits, like regular guns, it could pass a law to that effect. He laments the fact that “the majority charts a different course that invites unforeseeable consequences and offers no limiting principle.”The high court ruling on ghost guns contrasts with the decision in June to overturn another federal gun regulation — the ban on so-called bump stocks. That case found Justice Thomas writing for the majority after another attempt by federal bureaucrats to short-circuit the lawmaking process and in effect legislate by regulation. Yet Justice Thomas was the sole dissenter when the Nine recently upheld a law barring domestic abusers from owning guns.At the time, these columns, though carrying no brief for domestic violence, applauded Justice Thomas’s lonely stand. His dissent was a reminder that “owning and carrying a firearm is a liberty possessed by all Americans — even those whose conduct is deplorable.” That freedom, “like the rights to speech, peaceable assembly, or religious free exercise, is vouchsafed to the constitutional bedrock.” As a result, that right cannot be voided by any law — or regulation.That view echoes Justice Joseph Story, who said “the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic.” In short, it is the freedom that enables the Constitution’s other liberties to be preserved. All the more reason to mark the concern that the Nine could be backsliding on Second Amendment’s scope or, worse, when it comes to the right to keep and bear arms, giving up the ghost.

Is SCOTUS Retreating on Second Amendment?

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