The Morning Dispatch: What the Bruen Decision Means for Statewide Gun Laws

Happy Tuesday! On this date in 1914, Austria’s Archduke Franz Ferdinand and his wife, Sophie, were shot to death by a Bosnian Serb nationalist on a visit to  Sarajevo, setting in motion a series of events that would lead to World War I.

Quick Hits: Today’s Top Stories

• The Supreme Court ruled 6-3 on Monday in favor of Joseph Kennedy, a former assistant football coach at a public high school in Washington state who was placed on administrative leave (and whose contract was ultimately not renewed) after repeatedly praying at midfield following his team’s games and allowing students to join him. Writing for the majority, Justice Neil Gorsuch held that Kennedy’s conduct was protected by the First Amendment and did not violate the Establishment Clause. “Learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry,’” Gorsuch wrote.

• NATO Secretary General Jens Stoltenberg announced Monday the alliance will dramatically scale up the number of troops it keeps on high alert, from about 40,000 to 300,000. “[Russia has] chosen confrontation instead of dialogue,” Stoltenberg told reporters. “We regret that, but of course then we need to respond to that reality. And that’s exactly what we do with the fundamental shift in our deterrence and defense.”

• At least 46 migrants were found dead on Monday in the back of a tractor-trailer near San Antonio’s Lackland Air Force Base in what is believed to be the deadliest human smuggling incident in U.S. history. Sixteen survivors were transported to nearby hospitals, while San Antonio Fire Chief Charles Hood told reporters the recovered bodies were “hot to the touch” and that there were no signs of water or functioning air conditioning on the rig. U.S. Customs and Border Protection data released earlier this month showed immigration arrests along the southern border reached an all-time high in May, putting the agency on pace to surpass a record 2 million detentions in fiscal year 2022. Ed Gonzalez—President Joe Biden’s nominee to lead U.S. Immigration and Customs Enforcement (ICE)—said Monday he would withdraw his nomination for the role, having languished in legal limbo 14 months

• At least 18 people are dead and 59 injured after Russian forces launched a series of missiles at a shopping center in the Ukrainian city of Kremenchuk, according to Ukraine’s emergency service. More than 1,000 civilians were reportedly inside the mall at the time of the attack, leading officials to believe the casualty count will continue to rise. Ukrainian President Volodymyr Zelensky labeled Russia the “largest terrorist organization in the world,” noting the shopping center was far from the frontlines of the war and had “no strategic value.”

• U.S. Central Command announced yesterday that CENTCOM forces conducted a kinetic strike in Syria’s Idlib province on Monday, allegedly killing Abu Hamzah al Yemeni, the leader of Hurras al-Din, an al-Qaeda-linked group. CENTCOM claims the strike targeted al Yemeni while he was traveling alone on a motorcycle, and that there were no civilian casualties.

• A district court in Louisiana issued a temporary restraining order on Monday blocking Louisiana Attorney General Jeff Landry and Health Department Secretary Courtney Phillips from enforcing the state’s “trigger laws” that went into effect following the Supreme Court’s overturning of Roe v. Wade and would have banned most abortions, with exceptions only for the life of the mother. Abortion will remain legal in the state through at least July 8 when the hearing for the case begins.

• CVS Health, Walmart, and Rite Aid have begun rationing over-the-counter emergency contraception pills with demand for the medication—commonly known as Plan B—skyrocketing in the wake of last week’s ruling in Dobbs v. Jackson. 

• New York State Supreme Court Justice Ralph Porzio ruled Monday that New York City’s plan to allow noncitizens to vote in municipal elections starting next year violates New York’s constitution. 

• In a sign the Justice Department’s investigation into the matter is ramping up, John Eastman—the constitutional lawyer who advised then-President Donald Trump in the wake of the 2020 election and played a key role in Trump’s efforts to remain in power beyond the end of his term—said yesterday that federal agents seized his iPhone last week, on the same day law enforcement officials raided former Justice Department official Jeffrey Clark’s home. Eastman filed a lawsuit seeking the return of his phone, claiming the warrant used to secure it “mentions no crime at all.” 

• At least three people died—and multiple others were injured—when an Amtrak train traveling from Los Angeles to Chicago derailed on Monday in Mendon, Missouri. According to Amtrak, the train derailed after striking a truck that was obstructing a public crossing.

Trouble Bruen for Gun Restrictions

Lawmakers writing gun control bills might want to check the literature on crossbows, launcegays, dirks, dagges, skeines, and stilladers after a Supreme Court ruling Thursday. 

We didn’t know what most of those were until Justice Stephen Breyer name-checked them in his dissent to the court’s 6-3 decision in New York State Rifle & Pistol Association Inc. v. Bruen, and we’re still not 100 percent sure about the stilladers. We do know the decision overturned a century-old New York law—and set a new standard for reviewing gun control laws that will require courts to crack open a history book.

New York’s law required gun owners to demonstrate a special need if they wanted a license to carry a gun in public for self defense, and the court ruled that violated the right to bear arms protected in the Second Amendment. Five other states and Washington, D.C.—altogether home to about a quarter of the U.S. population—have similar laws that will now fall.

“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,’” Justice Clarence Thomas wrote in the majority opinion. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

Some officials in states that will lose their gun control laws weren’t thrilled. “This is a dangerous decision from a court hell bent on pushing a radical ideological agenda and infringing on the rights of states to protect our citizens from being gunned down in our streets, schools, and churches,” California Gov. Gavin Newsom tweeted. President Joe Biden said in a statement that the ruling “contradicts both common sense and the Constitution, and should deeply trouble us all.”

Justices took pains to clarify that this ruling doesn’t remove states’ permitting processes, which can include background checks, training, and other measures. It only knocks down “may issue” laws—which leave the final decision of whether to issue a permit up to officials’ discretion—not laws of states that “shall issue” a permit to “law-abiding, responsible citizens.” (Thomas did note that unreasonably long wait times and exorbitant fees in ostensibly “shall issue” states could be ruled impermissible.) Justice Brett Kavanaugh also highlighted in his concurrence that states can still ban guns in sensitive areas—a statehouse, for instance—and include mental health checks in the permit process.

In fact, there’s a lot this ruling doesn’t dictate. “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun,” Justice Samuel Alito wrote in his concurrence. “Nor does it decide anything about the kinds of weapons that people may possess.”

But Thomas’ majority opinion does rework how courts should assess the constitutionality of gun legislation. Courts must drop their previous efforts to balance the interest of the state in preventing gun violence against the Second Amendment rights of individuals, Thomas wrote, and instead consider only the Second Amendment’s text and the “history and tradition” of gun legislation when the Second and 14th Amendments passed.

“They’re not looking for whether there was the exact same gun regulation,” Stephen Gutowski, founder of gun policy outlet The Reload, told The Dispatch. “They’re looking at whether there was a similar gun regulation.”

Thomas writes that courts are more equipped to perform a historical legal analysis than the cost-benefit analysis they’ve been attempting, but Breyer’s esoteric weapons list highlights that it could still be a challenge to properly identify and apply relevant regulations. “I just think [Thomas is] a little overconfident in the ability of particularly lower courts, which don’t have endless resources and immense law libraries,” Seth Chandler, a University of Houston law professor who has taught Constitutional law, told The Dispatch. “Even Justice Thomas acknowledges that this process of analogous reasoning, it’s not straightforward and obvious.”

Gutowski argued many modern restrictions will stand under the new standard. “The prohibition on certain people owning guns—felons and people who’ve committed domestic violence misdemeanors—those things are all presumptively constitutional because they’re all rooted in the principle of trying to prevent people who have been proven to be dangerous from either owning or carrying firearms,” Gutowski said. “Which is something that has been traditionally part of gun regulation in the United States dating back to the founding era.”

Other modern situations—semiautomatic weapons, high capacity magazines, new types of potentially “sensitive” public locations—don’t have obvious historical analogs and will likely be challenged in court under the new standard, possibly ending up back in the Supreme Court’s lap. “[The] decision is important in a philosophical way and in ruling out New York’s outlier law, but it leaves open an awful lot of issues about gun control that are going to have to be wrestled with in the coming five, 10 years,” Chandler said. “We’re going to have lots more litigation.”

Worth Your Time

• The Chinese government is surveilling its citizens, using big data to predict and prevent everything from pickpocketing to political protests. People who have committed crimes get extra scrutiny, but so do the mentally ill, young people without jobs, minorities, people with HIV—anyone the government deems a potential disruption. Paul Mozur, Muyi Ziao, and John Liu report for the New York Times on how the systems—based partly on technology developed in the U.S. and Europe—function.  “With a simple fill-in-the-blank menu, the police can base alarms on specific parameters, including where a blacklisted person appears, when the person moves around, whether he or she meets with other blacklisted people and the frequency of certain activities,” they write. “The police could set the system to send a warning each time two people with a history of drug use check into the same hotel or when four people with a history of protest enter the same park.”

• This short and sweet Corner post from Charlie Cooke at National Review looks at some polling data and concludes that while many Americans don’t like or trust recent Supreme Court decisions, most still oppose expanding the court—though by a slim margin. “This juxtaposition matters,” Cooke argues. “The Supreme Court is a court, not a legislature, and courts are supposed to uphold the law as it is written, irrespective of what opinion polls might or might not say. One can overstate the case, but a public that is split this strongly between the question ‘Do you like the Court at the moment?’ and ‘Do you wish to alter or destroy the Court?’ is a public that ultimately believes the Court to be legitimate, even as it dislikes some of the recent calls it has made.”

• Dr. Monica Gandhi—UCSF infectious disease specialist and frequent TMD source—has proven herself over the years to be one of the smartest people on the COVID-19 pandemic, but in The Atlantic this week, she turned her focus to monkeypox, arguing the United States is underreacting to the threat. “Different diseases require different responses. The coronavirus is becoming endemic because it spreads quickly and easily, and even high-quality vaccines that protect against severe disease do not prevent initial infection or reinfection,” she writes. “When the coronavirus spread worldwide in early 2020, we lacked an effective vaccine, so governments required masks, distancing, ventilation, testing, and contact tracing to try to minimize transmission until the COVID-19 shots arrived. [But] the world is not at the same disadvantage with monkeypox; we have a vaccine, and our current attempts to test and contact trace our way out of this epidemic are failing. A swift, targeted vaccination campaign—one that identifies Americans at risk and persuades them to get a shot—is far more likely to stop the monkeypox outbreak.”

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Toeing the Company Line

• It’s Tuesday, which means Dispatch Live (🔒) is back tonight! Tune in at 8 p.m. ET/5 p.m. PT to catch Sarah, Steve, Jonah, and David’s conversation on the Supreme Court overturning Roe and Casey and the latest out of Ukraine. As a reminder, Dispatch members are now able to listen to recordings of Dispatch Live after they’re live on select podcast platforms. Click here for more information.

• The Supreme Court can’t stop won’t stop handing down major opinions, and David and Sarah are back on today’s episode of Advisory Opinions unpacking its decision on the praying football coach—which erased a decades-old First Amendment test. Plus, of course, more on the Dobbs v. Jackson Women’s Health fallout.

• On the site today: Ben Woodard has a primer on five states that have to clear their state constitutions or pending litigation before they enact legislation prohibiting abortion. Audrey previews the runoff between Republicans Michael Guest and Michael Cassidy in Mississippi’s 3rd District primary. Andrew Fink has an interview with a Finnish defense expert on the country’s evolution toward supporting NATO membership. And Reuel Marc Gerecht has an in-depth piece arguing that Israel is the only country in the Middle East that can derail Iran’s regional ambitions.

Let Us Know

After deciding last week to punt the remainder of its hearings until July, the January 6 Committee on Monday scheduled a surprise hearing for later today to present “recently obtained evidence.” What do you think they’ve got? (Wild and irresponsible speculation allowed.)