Here is
@JacobDCharles's article in Slate today, and my criticisms of it. I usually avoid tagging him because I don't want to be a bother, but as I'm launching into a criticism it would be cowardly not to let him know.
"Last month, in Carralero v. Bonta, a federal judge in Orange County declared it unconstitutional to prohibit guns in a host of places California had designated gun-free."
Never before in its history has California banned carry in the places our lawsuit challenged. It's misleading to not make clear from the start that the injunction preserves the status quo.
"Those spaces include not just quintessentially sensitive places like banks, playgrounds, and hospitals, but also the parking lots of schools and government buildings, even particularly sensitive ones like police stations, prisons, and primary and secondary schools."
Here, Jake sadly plays on the ignorance of his antigun readers. What makes these places "quintessentially sensitive?" Most of these places existed prior to 1900 without banning carry. As we pointed out in our briefing, NO STATE banned legal carry in banks prior to Bruen. And an Obama-appointed Hawaii judge agreed, issuing a similar ruling in August against that state's law. There was much less outrage about that injunction because when a Dem-appointed judge strikes down a law, it destroys the narrative of this being about out of control Republican appointees.
"The court rejected legislation like Texas’ 1870 law barring guns in any place “where persons are assembled for educational, literary or scientific purposes” as insufficiently similar or representative to support SB2’s ban on guns in museums, libraries, and hospitals. It found nothing to save the prohibition on bringing guns to “a playground or public or private youth center.”
Of course it did. Because that's what Bruen says to do, Jake. When a place existed in the past, and carry was not banned within it, that is evidence that the restriction is unconstitutional. Moreover, the Texas law was a huge outlier. This isn't about finding one single analogue and proclaiming victory, you need a REPRESENTATIVE historical tradition. It's arguable whether that means "majority" - perhaps a large minority of states can suffice. But it's not arguable that a couple outliers is insufficient. Bruen rejected that.
"You might think that this prohibition is both sensible and closely connected to the rationale for why gun prohibitions in schools are acceptable, like the need to protect vulnerable populations"
Protect them against who? We presented data, which the State did not even try to rebut, that those with CCW permits are overwhelmingly law-abiding. This betrays that Jake unconsciously assumes people with CCW permits are criminals, even with California's high level of vetting. And of course actual criminals are not going to be stopped by SB2.
"Carralero’s reading of Bruen and the historical record would guarantee more guns in sensitive spaces. Under its logic, parking areas connected to courthouses, jails, polling places, and legislative assemblies must now be gun-welcome zones. So too must be libraries, zoos, museums, playgrounds, parks, and public transit."
Parking lots are not sensitive places, and its silly to think otherwise. Some curtilage may be sensitive, like the White House lawn, but that is rare. And the "public transit" bit is especially malicious, because if carry can be banned on public transit, then you have effectively taken away a constitutional right from everyone who relies on public transportation. Justice Alito in oral argument had specifically singled out people who ride the subway late at night as needing the right to carry.
"Rather than stingily splice the historical sources, as the Carralero court did, those judges drew upon the historical principles that justified locational restrictions."
No, they bent over backwards to do as much damage to the right to carry as they could. If places existed in the past, Bruen DOES NOT allow for analogical reasoning, which is reserved for new problems and new technologies. To the extent people legally carrying in, for example, a bank is a "problem", it is not a new one.
Your law review article called for narrowing Bruen from below. Citing it as some kind of authority on how to properly apply Bruen just proved the Second Circuit was not interested in a faithful application.
"The challengers win on every claim they make, something I’m hard-pressed to recall happening in any other wide-ranging challenge to gun laws post-Bruen, despite reading hundreds of these decisions."
It happened in Wolford, for Hawaii's version of SB2. An Obama-appointed judge enjoined everything challenged. While they challenged less than we did, it still included banks, bars, parks, beaches, the vampire rule, and parking lots of most government buildings as well as the parking lots of every other place challenged.
"The court dispenses with all of the challenges to California’s law in a lean 43 pages, dwarfing the tome-length 261 pages it took the 2nd Circuit to review similar restrictions, or the 184 pages a New York federal district court took to assess that state’s post-Bruen sensitive-place law."
Well, half that New York ruling was permit issuance questions, it wasn't all sensitive places. But even so, Bruen is not a complicated analysis. YOU want to make it complex, so just about all gun control laws can be upheld.
"The irony here is that the great weight of empirical evidence suggests that the proliferation of guns in public places makes them less safe, not more. So, in an important sense, the ruling creates its own reality."
Again, we presented extensive evidence to the Court that people with CCW permits are the most law abiding demographic in this country, using government data from four different states. The court itself identified only four examples in over a decade of Californians with CCW permits committing violent crimes (over 100,000 have such permits). The State did not even try to rebut this data. You are the one "creating your own reality" here Jake.
The article concludes with the typical criticism of Bruen. Jake does not mention the vampire rule, which demonstrates the animus behind SB2. He also does not mention that the author of SB2, Senator Portantino, confirmed that his aim is to ban carry everywhere but streets and sidewalks. Does that sound like a "general right to public carry"?
I like Jake personally. He's a thoughtful guy, and some of his criticisms of Bruen are fair (though not really the ones here). But just as I don't hide that I am a Second Amendment rights activist, he and most others in academia should stop pretending they are anything but gun control activists.
slate.com/news-and-politics/…