Hey everyone, it’s time for “Mark Joseph Stern is a shameless hack who doesn’t know anything about the law.” This is one of my favorite programs. He published a breathless, hysterical hot take on the Wolford decision yesterday in a Slate piece titled, The Supreme Court’s New Expansion of the Second Amendment Is Genuinely Deranged.
Let’s take a look!
Oh? Why then did unanimous (Dem-appointed) panels of the Second Circuit, Third Circuit, and Fourth Circuit all strike down New York, New Jersey, and Maryland vampire rules? Are those judges just a bunch of freewheeling gun nuts, too?
Did Stern even research other rulings before spouting this drivel?
Wait…what violence? Homicide has hit record lows in the US since Bruen, contrary to what some of the very smartest people like Stern predicted.
Also…shot to death? The Obama-appointed district court judge in Wolford cited an amicus brief I wrote confirming that those with CCW permits almost never commit crimes. Hawaii, like California in our case, had no response to the data we presented.
Hey Mark…the vampire rules in those states were already invalid because courts had struck them all down. Even in decidedly liberal circuits like the Second and Fourth.
Stern seems to have no grasp on the Bruen decision at all. The level of generality discussion pertains to the historical analysis, not whether the plain text applies.
Sorry, Mark, those statutes were, in fact, limited to poaching. They also were concerned with property theft or damage…arising from poaching.
They also only applied to private lands not held open to the public. If Hawaii wants to pass a law that says you can’t carry onto fenced private property without permission, maybe those 18th century poaching laws would then be relevant support, but they have no relevance at all as to whether you can carry in a Starbucks by default.
This is why the only relevant analogues to the analysis are those that applied to citizens of the time, not those aimed at only marginalized groups. Plenty of gun laws of the time applied to everyone, and those are the relevant ones to look at. For example, the surety and “going armed” laws the Court examined in Rahimi.
Because if there is one thing Stern believes in, it’s expansive states rights! His tirade here about “preferred outcomes” is textbook projection. That’s what courts did for decades under interest balancing. He just liked those results more.
Oh, and I overlooked that the image they hilariously use to illustrate Stern’s piece includes a “No Firearms” sign. A sign that is still allowed in Hawaii. Nothing in the Court’s ruling prevents property owners there from posting a sign and prohibiting access by anyone who’s carrying a gun.
I guess if the Slate’s resident legal genius wasn’t able to grasp the Court’s ruling, I really shouldn’t be surprised that their graphics guy didn’t either.
What Wolford was actually about was whether Hawaii could impinge on its citizens’ Second Amendment rights by prohibiting the carry of a gun even if you have a permit…unless business owners gave verbal consent or put up a “Guns Allowed” sign. That’s a reality that seems to be too complex for someone like Mark Joseph Stern to grasp.
Kostas Moros is Director of Legal Research and Education for the Second Amendment Foundation.
Stern is indeed an incompetent hack. His thesis that Hawaiian history and tradition has any application to a Bruen analysis is embarrassingly stupid.
Bruen’s historical test goes to what the traditions and laws were **in the United States** at the time of the passage of the Second Amendment (or arguably when the 14th amendment was passed), as a way of understanding the Founders’ intent. That Hawaiian law and society historically was hostile to private firearms is immaterial to this analysis, just as would be an analysis of pre-Louisiana purchase French law, Mexican or Spanish law pre-annexation of Texas, California, Arizona, etc., or Iroquois or Cherokee law / traditions (in various areas that later became US states). English / British law prior to adoption of the 2A is potentially relevant *only* because British common law had generally been incorporated into the common law of all the states in the union at that time, making potentially relevant an inquiry as to whether the states had in fact adopted an aspect of older British common law concerning firearms (and often the answer is no).
Further, when areas not in the union in 1789 were annexed or otherwise joined the union, they became subject to the constitution as it existed when they joined — the constitution did not somehow morph to accommodate the laws and traditions of the new areas. For instance, the Kingdom of Hawaii had a longstanding tradition of slavery . . . does Stern believe that somehow means Hawaii is somehow exempt from following the 13th Amendment because its history and tradition somehow trumps the Constitution? Or that its longstanding traditions of monarchy mean Hawaii could dispense with the constitutional requirement of a republican form of state government, and reinstitute monarchy as its form of state government?
Further, as Justice Alito points out, the Bruen test goes to what the *prevailing* history and traditions were — one-offs do not satisfy the test. So even if Hawaiian history and tradition could possibly be material (they’re not), it’s at best a one-off that is outweighed by the prevailing history and traditions of the rest of the country, and thus like the Louisiana slave code provision Justice Jackson so loves it does not satisfy the second element of the Bruen test.