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05/21/2022

Saul Cornell on NYRPA v. Bruen
Michael Ramsey

At Slate, Saul Cornell:  The Horror in New York Shows the Madness of the Supreme Court’s Looming Gun Decision.  From the core of the argument (some rhetoric omitted):

... [T]he arguments and logic that Alito put forth in his leaked draft opinion in Dobbs v. Jackson Women’s Health Organization unambiguously support New York, not the gun rights group challenging New York’s law in [NYRPA v. Bruen]. Alito’s history, text, and tradition approach, if applied in a rigorous and neutral fashion, favors strict gun regulations such as New York’s [restricting the ability to carry guns in public]...

In his Dobbs draft, Alito drilled down into the history of regulation and rights during Reconstruction as the key to determining the constitutionality of abortion. In his earlier decision in McDonald v. Chicago, Alito correctly noted that the new state constitutions written after the Civil War abandoned the founding era’s obsession with militias and replaced it with a more individualistic language focused on self-defense. ... The same new arms-bearing provisions he cited as authoritative also expressly affirmed the right of legislatures to regulate guns in public. The original fear of British redcoats that had animated the founding generation had been supplanted by a new fear: gun violence.

Empowered by this recognition of express constitutional authority to robustly regulate arms in public, dozens of states and cities enacted laws limiting guns in public, including good cause permitting schemes similar to that in New York. ...