Supreme Court invents rule that presumes gun regulation is unconstitutional and then undermines Miranda rights

Handgun permits

The Supreme Court ruled 6-3 Thursday that states may not limit who can carry a handgun for self-defense outside the home, creating a new legal test in the process.

The case, New York State Rifle and Pistol Association v. Bruen, involves New York’s law that to obtain a concealed carry permit, an individual needs to prove an elevated need for self-defense (e.g. specific threats against a person’s life). This kind of statute is not unique to the state; California, Hawaii, Maryland, Massachusetts, and New Jersey—encompassing a quarter of the U.S. population—also have such a law (and the lowest firearm mortality rates in the country).

In New York’s case, the law has been on the books for over 100 years. This was not long enough for the conservatives on the Supreme Court, however. The majority opinion, written by Justice Clarence Thomas, held that any gun control law must be “consistent with this nation’s historical tradition of firearm regulation.”

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

In practice, this means that empirical evidence cannot be used by the courts to uphold gun control laws. The lethality or proliferation of a certain type of weapon, for example, no longer has any bearing on the legality of gun control. Real-world impact means nothing, because the majority is only looking backwards. What time frame does Thomas want us to live in? The courts must ask if there is a “historical analogue” from 1791 (when the Second Amendment was ratified) or 1868 (when the 14th Amendment was ratified).

Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late 19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper cause requirement.

Further, if a law targets a social problem that existed at the Founding but in a different way for today’s world, that’s evidence in support of a claim that gun regulation is unconstitutional:

For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.

Now, lest you think the court is freezing gun rights in the 18th and 19th centuries like it is gun control, Thomas added that “even though the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.”

Justice Breyer, writing a dissent joined by Kagan and Sotomayor, notes that the Court invalidates all modern deaths and injuries caused by gun violence:

In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms…At a minimum, I would not strike down the law based only on the pleadings, as the Court does today—without first allowing for the development of an evidentiary record and without considering the State’s compelling interest in preventing gun violence.

Justice Alito, in his own concurring opinion, snidely asks Breyer if New York’s handgun permitting law would have stopped the Buffalo massacre:

Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.


The Supreme Court also ruled Thursday that individuals cannot sue law enforcement officials for using a statement obtained without a Miranda warning at trial.

The case, Vega v. Tekoh, involves a Los Angeles County sheriff’s deputy who questioned a suspect, Terence Takoh, for an alleged sexual assault. The deputy, Carlos Vegas, obtained a “written statement apologizing for inappropriately touching [a] patient’s genitals,” but without informing Tekoh of his Miranda rights. Tekoh was arrested and charged but acquitted in both instances. He then sued Vega for violating his constitutional rights.

  • Note that, according to Tekoh, Vega also used threats and intimidation to extract a confession. “Vega threatened Tekoh with violence, flashing his gun,” a brief filed with the Supreme Court detailed. “He warned Tekoh, an immigrant, that he and his family members would face deportation back to the country he and his family had fled in fear of persecution. And he called Tekoh a ‘Jungle Nigger.’…Vega would not permit Tekoh to leave the room, and he ignored Tekoh’s pleas to see a lawyer or talk to his co-workers and supervisors.”

The Ninth Circuit held that the “use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment and may support a §1983 claim” against the officer who obtained the statement.

The Supreme Court disagreed. Justice Alito, writing for the conservative majority, held that “[a] violation of Miranda is not itself a violation of the Fifth Amendment.” This is in direct opposition to the origin case for Miranda rights, Miranda v. Arizona. As the Court wrote in 1966, individuals questioned by police must be given “a full and effective warning of his rights at the outset of the interrogation process” as a “safeguard…to secure the Fifth Amendment’s privilege against self-incrimination.”

…the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

Justice Alito’s opinion expresses clear disdain for Miranda rights, calling it “a bold and controversial claim of authority” for a “judicially crafted rule.” He adds that the Court will follow Miranda’s rationale only “for the purposes of deciding this case.”

Justice Kagan, joined by Sotomayor and Breyer, dissented:

Today, the Court strips individuals of the ability to seek a remedy for violations of the right recognized in Miranda. The majority observes that defendants may still seek “the suppression at trial of statements obtained” in violation of Miranda’s procedures. But sometimes, such a statement will not be suppressed. And sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? The point of §1983 is to provide such redress—because a remedy “is a vital component of any scheme for vindicating cherished constitutional guarantees.” The majority here, as elsewhere, injures the right by denying the remedy. [emphasis mine]

North Carolina legislature

In 2018, North Carolina legislators passed Senate Bill 824, which required voters to present photo ID in order to vote. The Democratic governor vetoed the bill and the legislature overrode the veto, enacting the bill into law. The NAACP filed a lawsuit seeking to have the statute thrown out, maintaining that it discriminated against and disenfranchised a significant portion of African American and Latino voters.

As is required, the Democratic attorney general, Josh Stein, defended the law in court. The Republican leaders of the state Senate and House, however, sought to intervene, not trusting the attorney general to adequately defend the Republican-created law.

The Supreme Court sided 8-1 with North Carolina’s legislative leaders, allowing them to also represent the state against the NAACP.

Justice Sotomayor was the lone dissenter, writing that “the Court errs by implying that the attorney general’s defense of the constitutionality of the voting law at issue here fell below a minimal standard of adequacy.” Crucially, allowing the Republican-controlled legislature to defend the voter ID law ensures that the attorney general will not settle the case without their approval.

Death penalty

Michael Nance was connected and sentenced to death for a 1993 murder in Georgia. Nance filed a civil rights suit against the state seeking to challenge Georgia’s only method of execution, lethal injection. Instead, he sought to be killed by firing squad, believing it “would significantly reduce the risk of severe pain.” The 11th Circuit Court of Appeals ruled that Nance must bring a habeas petition, not a civil rights lawsuit, because preventing Georgia from executing Nance by lethal injection would mean that he could not be executed at all (since the state only approved of lethal injection).

The Supreme Court ruled 5-4 in favor of Nance, with Chief Justice Roberts and Justices Kagan, Sotomayor, Breyer, and Kavanaugh in the majority. The appellate court’s ruling, Kagan writes, would doom inmates’ petitions to fail, cutting off any chance of relief from the courts:

The approach of the Court of Appeals raises one last problem: It threatens to undo the commitment this Court made in Bucklew. The Court there told prisoners they could identify an alternative method not “presently authorized” by the executing State’s law. But under the approach of the Court of Appeals, a prisoner who presents an out-of-state alternative is relegated to habeas—and once there, he will almost inevitably collide with the second-or-successive bar. That result, precluding claims like Nance’s, would turn Bucklew into a sham.

Justice Barrett, joined by Thomas, Alito, and Gorsuch, dissented.