The nutty wing of the Originalist camp is now in the SCOTUS ascendency – is it the death knell for tiers of scrutiny, especially in the First Amendment context?
“I’m an originalist, but I’m not a nut”. This is how the Pontiff of Originalism, Justice Antonin Scalia (seated right), reportedly replied, when he was asked to compare his judicial philosophy to that of his US Supreme Court colleague, Justice Clarence Thomas (seated left). As of Thursday, Thomas J’s nutty originalism is in the ascendancy in the US Supreme Court. In New York State Rifle and Pistol Association v Bruen (23 June 2022; — US — (2022); Opinion pdf | Cornell html), the US Supreme Court held that a New York restriction on carrying firearms unconstitutionally prevented law abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. Referring to District of Columbia v Heller 554 US 570 (2008) (pdf) (which I critiqued here) and McDonald v Chicago 561 US 742 (2010) (pdf), the Court held that, to justify a firearms regulation, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearms regulation; as a consequence, the Court rejected any standard of review such as strict or intermediate scrutiny (which it described as “means-end” balancing tests). The Court identified firearms regulations that were consistent with the Second Amendment’s text and historical understanding, but held that none directly or analogically justified New York’s requirement that an applicant for a license to carry firearms outside the home had to demonstrate “a special need for self-protection distinguishable from that of the general community”.…