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Store owner Bren Brown, stands with a display of handguns at Frontier Justice in Lee's Summit, Mo. (AP Photo/Charlie Riedel)
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While the news lately has been very positive for post-Bruen Second Amendment challenges, it’s not all downhill. Illustrative of that is yesterday’s decision in Reese v ATF (PDF), a test case challenging the portion of the 1968 Gun Control Act that prohibits sales of handguns and handgun ammunition to adults under 21.

Earlier this week, the State of Texas abandoned its appeal of an order striking down a Texas laws prohibiting the public carrying of handguns by adults under 21. In Reese, however, Judge Robert Summerhays (a Trump-nominated judge) ruled that the federal prohibition on sales to 18- to 20-year-olds is sufficiently supported by historical analogues.

Before everyone trashes Judge Summerhays as a RINO/traitor/scoundrel etc., the guts of his opinion was that the plaintiffs’ arguments are foreclosed by a 2012 Fifth Circuit decision, National Rifle Association v. United States, in which a Fifth Circuit panel found (over a strong dissent) that this portion of the ’68 GCA was constitutional under both intermediate scrutiny and the “text, history, and tradition” test articulated in Heller and subsequently adopted in Bruen.

Judge Summerhays’ position — that he is bound by a Fifth Circuit precedent that addresses the issues in the suit — is not unreasonable. I read his opinion as saying, essentially, “If the Fifth Circuit’s earlier opinion on this exact issue is no longer good law, then the Fifth Circuit — not a district court — needs to be the one that says so.”

While I disagree with him that that the relevant portion of NRA v. US remains good law in light of Justice Thomas’ Bruen opinion, I have to say it reflects a welcome degree of judicial modesty.

What will the Fifth Circuit do? We’ll see. In 2012, the makeup of that court was quite different, with a narrow majority of active service judges appointed by Democrat presidents (and some of the GOP-appointed ones being, shall we say, less than stalwart on Second Amendment issues).

That’s not the case today, as PDT appointed quite a few strong originalist judges to the court, including rising superstar judges like James Ho. As a result, the Fifth Circuit is currently regarded as probably the most favorable court of appeals for Second Amendment cases.

While I think there’s a good chance that a Fifth Circuit three-judge panel may simply rule that Judge Summerhays’ reading of Bruen is erroneous and thus reverse him, I will not be shocked if such an initial panel rules that NRA v. US remains binding. The reason for this is that under Fifth Circuit law, a subsequent panel is bound by the decisions of earlier panels (unless that earlier decision is superseded by a subsequent change in the law by Congress or the Supreme Court), and that only the entire court (en banc) can overrule such precedent.

Such a ruling, however, will almost certainly include either a dissent or concurrence urging the entire court to take the case and reconsider NRA v. US in light of Bruen. Such a decision would require a majority of active service judges on the Fifth Circuit to vote to take the case.

Are the votes there at the Fifth Circuit to take the Reese case en banc and unambiguously abrogate NRA v. US? As I count noses at the Court, I think so. And if they take Reese for en banc rehearing, we might also see some language telegraphing that other pre-Bruen Fifth Circuit Second Amendment decisions are no longer good law.

For example, in Mance v. Sessions, a Fifth Circuit panel reversed a decision finding that the ’68 GCA prohibition on handgun sales by FFL’s to out-of-state residents was unconstitutional, and the petition for rehearing en banc failed by one vote. There’s little question that if Mance was heard today, the votes on the petition for rehearing en banc would be very different.

Watch this space. This case is far from over.

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  1. Hmm. Federal judges and entire Circuits coming out with conflicting rulings on what should be a no-brainer conformance with Bruen. ‘Ol Haz sees some of these climbing right back up the appellate ladder back to SCOTUS.

    Heller (2008, MacDonald (2010), and now Bruen (2022). Any ten-year-old can look at this as a trifecta for following the text of the 2A, but Leftists gonna Leftist, ya know? We’re supposed to work our way down the list of boxes and make use of the jury box, but this only works if everyone obeys the Constitution. You know…a “whole and moral people”. Since this clearly isn’t the case, the momentum seems to be creeping toward the final box, and at some point some individual, group, or even municipality is going to have enough of this nonsense and do something accordingly, triggering a movement that will quickly conflagrate to something worthy of the history books

    • Simmer down. Working these things through the legal process (the “jury box”) takes time; it’s the inescapable nature of that beast. On this case in particular, I think it will work out in our favor.

  2. “If the Fifth Circuit’s earlier opinion on this exact issue is no longer good law, then the Fifth Circuit — not a district court — needs to be the one that says so.”

    If a district judge cannot declare an earlier opinion to be no longer good law, what is the mechanism for having an appeals court review the older opinion?

    • In theory, a district court *could* say, “Bruen threw everything out, so NRA v. US is no longer good law and I’m not bound by it. Take it up to the Fifth Circuit if you disagree.” But while I agree with such an assertion on legal grounds, that *would* be awfully cheeky for a district judge to do (although I know more than a few who would not hesitate to do so . . . and most of those are insufferable martinets). Most district judges are gonna say, “I’ll leave it to the Fifth Circuit to make that call as to whether NRA v. US is still good law,” especially where doing so is going to invalidate an act of Congress as unconstitutional.

      A panel of the Fifth Circuit could similarly say “Bruen threw everything out, so NRA v. US is no binding precedent under our rules.” Depending on the luck of the draw in terms of who is on the initial 3-judge panel, that might happen. But as I posit, I can also see the panel affirming, saying “whether or not we agree with it, the decision on whether NRA v. US is still good law needs to be made by the full court.” That’s not an indefensible position, especially when wielding the biggest stick the judicial branch has.

      Once the case is en banc, the court is writing on a blank slate (subject, of course, to SCOTUS review).

      • What is the mechanism, other than a lower court ruling, for an appeals court to review an earlier appeals court decision? That’s where I am uncertain.

        • Assuming that the earlier decision is final and unappealable, there is no other way.
          To issue a ruling, courts require a case or controversy to come before them. That’s basic constitutional law — courts don’t just have the power to issue rulings on whim.
          Thus, to address / overrule an earlier appellate decision, it requires a case to come up through the pipeline, and for an appeals court panel to say either (1) “the old precedent has been abrogated by X act of Congress or Y SCOTUS decision, and is thus no longer good law,” OR (2) “the old precedent is still good law and is thus binding on this panel, but we think it is wrong and urge the court to take this case en banc and reconsider / abrogate the old precedent.”

          If the full court takes the case, it’s not bound by the prior precedent and can overrule it if it wants. If it doesn’t take it up, the old precedent remains binding.

    • The appeals court can look at the older opinion and declare it to be no longer good law, but only if it rules en banc. Much as the trial court is bound by a judgment of the court of appeals in its circuit, the appeals courts are bound by decisions on the same issue in the same circuit. En banc panels are not so bound, nor is the Supreme Court.

      • “The appeals court can look at the older opinion and declare it to be no longer good law, but only if it rules en banc.”

        An appeals court can simply wake up one morning, and decide to review an old case? Without need of a district court opinion placed before the appeals court?

  3. Re: “Judge Robert Summerhays (a Trump-nominated judge) ruled that the federal prohibition on sales to 18- to 20-year-olds is sufficiently supported by historical analogues.”

    The judge is full of sht. History does not support discrimination whether it’s back of the bus discrimination or age discrimination via Gun Control. Next it will be your 2A Right sunsets at 40. History shows such rot is wrong…dead wrong.

    The judge might as well support Gun Control’s close relatives slavery, lynching, Jim Crow, etc. And base his support on democRat Party historical analogues.

    • OK Debbie, please explain for the class why the Fifth Circuit’s prior decision in NRA v. US — which addressed this precise issue, and held THT *did* justify this law — was not binding on Judge Summerhays? (There is an explanation, but it requires more than “because I disagree with it.”)

      Ignoring legal procedures and analyses (either because you disagree with them or, as I suspect is the case here, because you actually don’t have a clue what they are) gets us nowhere. Our arguments are far more effective when they are based on more than sloganeering.

      • I’ve studied the history of our nation from the Pilgrims in England then Holland then back to England and here on the Mayflower, as well as the Virgina colonies, and right up to the present since then. Any “judge” that will spread his ample bottom across the bench and declare there IS no orecedent or history supporting the normal use of arms by those in the 16 to 21 group is either lying, wilfully ignorant, or has simply NOT examined this matter in any depth whataver.
        I kniw accounts of young men mustering out wuth their local ilitia at fifteen, sixteen, carrying military rifles (they ALL were “military” back then) not just in training but on the battlefield. Pay records of the Colonial militia reveal quite a number of members as young as fourteen that served alongside the “adults”. I know Paul Revere, around 40 years old on the day of Lexington/Concord, was carrying pistols when he was sixteen as he ran “errands” (stealth military actions) to protect the threatened lives of his fellows. Many men lied about their age (few had hard copy birth certificats bac then) so they could “jine up” and head off to Germany to fight the war there. So we had recruits as young as sixteen fightting in uniform. My Dad grew upin the 1920’s and 30’s. They ALL had guns of their iwn w by the time they were en or twelve, often bought with their own money they had earned through hard work. Kids all brought their rifles to school had tin can murdering contests at lunch time. His youngest sister at 7, made the boys mad because by that age she could outshoot any of the boys When the Sears and monkey Wards catalogs came out anyone could mail order rifles, shotguns, handguns (mostly revolvers, though SA”s were out there to be had. Send in a check or postal money order and you’d get your new gun in the mail a week or two later, no papers please and no questions asked.
        Tell me there is “no precedent” for 16 and younger to purchase any tupe of firearm they pleased.

        SO now what we have at the root of this thing is a JUDGE making law on the basis of his preconceoved otions and/or ignorance of history, which law denies millions of law abiding and harmless Americans what IS their right.. to purchase and own and use and carry about whatever firearm they please.

        • No. What we have, I believe, is a judge saying, “I have to follow the binding precedent of a superior court that has already rejected these arguments.” It’s called the rule of law.

          Now, he may be wrong as to whether the precedent is still binding (I think he is wrong, but the Fifth Circuit will tell us whether it is or not), but the issue is not as cut and dried as you posit.

        • I have an ancestor that fought in the revolutionary war, he was 14 and had run away from home to fight the British and he had his own rifle but it got confiscated by the British troops who occupied the area he just happen to have wandered into.

          Then basically a prisoner he was approached by the British about hunting game for them in the area so he told them if they gave him a rifle to hunt with he could hunt game for them. So they gave him a loaded rifle and no more ammunition and told him to make the one shot count, so he shot the British soldier who handed it to him then ran off with the rifle to fight the British with it.

        • Are you missing some keys on your keyboard or did you type all that on a smartphone, and your fingers are too fat?

        • while you’re certainly physically mature prior to your 21st birthday…are you really mentally mature?….the California law made exceptions for those in the military or for someone who just bothered to get a hunting license…but this was in regard to those pseudo-assault rifles…I waited until I was 21 to get my 1st handgun …didn’t seem like such a big deal at the time…of course this was completely out of the realm of the black market…where laws don’t seem to matter…neither do consequences…

      • It was based on US v. Miller, which was a product of a foreign “court” operating under orders from a despot who put his own people in concentration camps to deliver a particular verdict, not the US legal system which guarantees choice of plea and choice of attorney. Make the higher court say that abomination was a lawful court case with a straight face. It’s going to (at least) en-banc anyways.

      • It is indeed. And every now and then when people have had enough of it, and still possess the means to deal with the situation, they make a correction in a very decisive manner.

    • The reasoning of the two cases are indeed inconsistent, but one district court decision does not bind another district courts. District judges disagree with one another all the time, and it’s up to the court of appeals to sort out those disagreements. (Courts of appeals disagree with each other too (yielding “circuit splits,” where the law can be 180 degrees different based on where you happen to be), and it’s up to SCOTUS to sort those out.)

      From a technical standpoint, there’s not a Fifth Circuit opinion finding that the Texas prohibition on carrying by 18-20’s is constitutional under THT, which gave Judge Pittman the freedom to find as he did. Judge Summerhays, on the other hand, appears to have felt his hands were tied by the Fifth Circuit’s prior NRA v. US decision. I disagree with him, and I suspect the Fifth Circuit will as well, but it’s not a wholly unreasonable decision.

  4. I don’t understand the problem. I’ve owned a firearm since I was a child. Began buying long guns privately at 16. Long guns over the counter at 18. And private handgun purchases 18. I bought a S&W 4″ 19.My first v What’s the issue? Age has little to do with it. Maturity is the answer. It’s best taught by someone that is mature.

    • The NRA’s Franklin Orth was a traitor to the American republics and supported a ban on handgun ownership for a quarter of the population. That’s how.

  5. @LKB
    “To issue a ruling, courts require a case or controversy to come before them.”

    This is the confusion. The 5th circuit declared, “If the Fifth Circuit’s earlier opinion on this exact issue is no longer good law, then the Fifth Circuit — not a district court — needs to be the one that says so.”

    The plain language seems to state that a district judge cannot ever challenge a higher court opinion; that the higher court, through some non-appeal method, can/must take it upon itself to look at earlier decisions….without any lower court ruling presented to an appeals court.

    And what is a “final” decision? How can it be that any court ruling is forever set in concrete, immune to challenge? Seems RvW was a final ruling.

    • District judges are bound to follow the law of their circuit. If they don’t do so, they get reversed.

      A “final” decision is one that resolves all aspects of a particular lawsuit, with no further appeals available. If from a district court, it’s usually something that says, “this is a final judgment; all relief not awarded herein is denied.” That becomes final if no appeal is perfected within the statutory time period. If an appeal is timely taken, it becomes final when the mandate issues from the appellate court (unless SCOTUS grants a timely filed cert petition).

      A final decision is binding on the parties (as to the relief requested), even if the law later changes. E.g., in Rogers v. Grewal, the plaintiff sued to have NJ’s carry permit system declared unconstitutional, and to recover damages, attorneys fees, and costs of court. Plaintiff lost, and in June 2020 SCOTUS denied the cert petition. Now, under Bruen, Rogers would have won. Can he now go back and say, “hey, now I should get my court costs and attorneys fees from the earlier suit”? Nope. That case is over, done with, and dead. He might be able to file a new lawsuit to have the law declared unconstitutional under the newly changed law, but the old one is over and can’t be resurrected.

      The quote from how I read Summerhay’s opinion implies that if you want the Fifth Circuit to declare that NRA v. US is no longer good law, “appeal my ruling and use this case as the vehicle to have them do so.” As I have related above, the Court cannot just rule on whim — there has to be a justiciable case or controversy before them.

      • “The quote from how I read Summerhay’s opinion implies that if you want the Fifth Circuit to declare that NRA v. US is no longer good law, “appeal my ruling and use this case as the vehicle to have them do so.””

        I know it is difficult to change hats from specialist, to generalist, or basic instruction.

        Are you pointing out that the judicial practice is that rather than taking on a new case, at the trial level, the plaintiff(s) need to appeal the prior 5th circuit decision, rather that start at the trial level with a new case?

        • No. You can’t resurrect a dead case and file an appeal of it. To quote Young Frankenstein, “dead is dead.”

          Instead, you have to bring a new lawsuit in order to get the legal issue back in front of the Fifth Circuit, in the form of a justiciable case or controversy that gives them an opportunity to hold “our old precedent was wrong (or has been abrogated).”

      • Aren’t judges bound to follow the Supreme Law of the Land?

        Doesn’t treating circuits as little judicial fiefdoms where some guy’s opinion matters more than the Constitution, and the Supremes’ interpretation thereof (but only in the fiefdom), defeat the whole object of having Federal courts in the first place? Isn’t belief in one standard applicable to all Americans everywhere much more in keeping with the “rule of law” than the petty-fiefdom precedent?

        Sam’s RvW question was a good one. Did every locality but Roe’s go around busting abortionists (and every court support throwing away the key) until and unless their little Circuit decided it agreed with the Supremes?

        Debbie’s analogy was excellent as well. Can a would-be slaver forum-shop for a jurisdiction that had never specifically heard a post-13A case to practice his trade? Should the local judges then throw out the Constitution and SCOTUS to “follow the law of their circuit” in support of slavery?

    • RvW was indeed a final decision, and under the doctrine of stare decisis is was binding until SCOTUS (and only SCOTUS) said it wasn’t.

      SCOTUS doing a 180 doesn’t happen very often — typically, once SCOTUS decides something, that’s it. But there are plenty of historical examples. One of the most stark examples was the constitutionality of laws criminalizing homosexual conduct. In 1986, SCOTUS upheld them as constitutional in Bowers v. Hardwick. But in 2003, they did a complete 180 in Lawrence v. Texas, leading Justice Scalia to observe in dissent, that nothing had changed since 1986, except apparently the Constitution. (He also warned that if stare decisis is something that can be disregarded when you have 5 votes, then two can play at that game. Dobbs is the result.)

      • “SCOTUS doing a 180 doesn’t happen very often — typically, once SCOTUS decides something, that’s it. But there are plenty of historical examples.”

        ‘Dred Scott’ comes to mind. Outright reversed, and that was 100 percent the proper, moral, and right thing to do, full stop.

        That in itself set a precedent, and a dangerous one, when it comes to the 2A. That will be the moral justification they will use to reverse ‘Heller’, ‘McDonald’, ‘Bruen’ et. all, in the future when the high Court has the votes to do it. They will never accept the current situation. Neither you or I will live long enough to see that, but it is coming… 🙁

        • ‘Dred Scott’ comes to mind.
          Funny you mention Dred Scott. Read the majority ruling one day. ( Then, read Bruen. You will find that Justice Thomas used Dred Scott as one example in Bruen of a historical reference of an individual right to keep and bear arms for any lawful purpose.

          Of course, even in Heller, IIRC, it was 9-0 regarding an individual right to keep and bear arms, independent of military service.

          Great paragraph from Dred Scott ruling:
          For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to….keep and carry arms wherever they went.

          Basically, the court at the time found no evidence in the Constitution, or other documents, that all POC were “citizens”. That happened later, with the 13th and 14th Amendments.

        • to 300BlackoutFan

          Thanks for posting the link. There is another issue that is not talked about when people bring up the Dred Scott v Sandford case.

          And that is that it was not a unanimous opinion. I believe there were two dissenting judges on the Supreme Court. At least one that I know of was a slave owner. And that slave owner wrote a very strong dissenting opinion against what judge Taney had written. Also at the time of that opinion and even when the United States was founded. There were tens of thousands of free black people living in the newly-created United States of America.

          Those free black people possessed guns. And they even voted. Of course in the northern free states.
          Also most people only use the first name in that court case “Dred Scott”. They almost never speak of who he was suing, Sanford. Maria Sanford a white woman who Scott was suing to get his freedom from.

  6. I don’t disagree with you (I’ve owned long guns since I was 11 and handguns since 14), but our betters in Congress decided in ’68 on age limits on sales by FFL’s.

    Now we see whether those will stick under the Bruen test.

    • Do you believe the ’68 GCA is vulnerable to being overturned? That is *critical*, as it created the legal framework for gun registration.

      If we can’t get gun registration declared expressly unconstitutional, every gain we have made recently is in peril. I see the bugaboo being that I find it highly improbable that we will ever get the 4473 requirement stricken…

      • Parts of the ‘68 GCA are currently being challenged and will likely go down. For example, the prohibition of FFL’s selling handguns to residents of other states barely squeaked by in Mance v. Sessions (pre-Bruen); if that case were decided today under the Bruen test, I think it goes down.

        But I suspect much of the ‘68 GCA (e.g., requirement to have an FFL to be in the business) is probably going to stick as being within Congress’ power to regulate interstate commerce.

    • it really comes down to intent…if you have no sinister intent then much of the law doesn’t matter…giving kids a .22 or a shotgun as an upgrade from their BB guns didn’t seem to matter much when all they wanted to do was target practice or hunt with it…but handguns were a different matter entirely…that was strictly for grown-ups….

  7. @LKB

    Rats. Thought I almost had it.

    How does one appeal a ruling, without bringing a “new” case to the trial court?

    Now, I always appreciate the time you take, explaining things here. Unfortunately, in this instance it seems we are just stuck in a loop.

    It might be helpful if you could explain the matter from the position of an attorney involved in trying to get an earlier 5th Circuit ruling reviewed/overturned; step-by-step (well, major step-by-step).

    • Two words: test case.

      Say I’m an organization like FPC and I don’t like a circuit court decision, and want to challenge it. To do so, I have to find a plaintiff who has standing to do so. That person then has to bring a lawsuit (backed by me) raising the legal issue. Case will almost certainly lose in the district court (circuit precedent will handcuff the district court), but then you can appeal to the circuit court and push for the court to reconsider the decision. Panel will likely pour you out (again, binding precedent!) but then you can ask for rehearing en banc. And if that fails, you now can file a cert petition.

      That’s how it happens.

      • The way you explained it, is the way I thought things worked. However….how is the current case different? Simply because the trial court declared the law unconsitutional, rather than upholding the Circuit court ruling?

    • I am in no way a lawyer, but it seems to me the quickest way to get it resolved would be by a federal lawsuit. I believe that’s where we should be focusing our efforts…

      • “In short, you CAN’T appeal a ruling in a “dead” case without bringing a “new” case. There’s just no way.”

        I apparently, wrongly, thought that was what was happening in this case. Your prior response seems to sort it out.


  8. hopefully all people under 21 will quit supporting the military industrial complex by not signing on those dotted lines…they sure don’t mind sending them to foreign lands to get killed for oil and minerals…. I bet things will change quickly then…

  9. All I know about the court is the court appointed mannequin makes a deal with the prosecutor and the judge gives you 3 months instead of two years.

  10. @LKB
    “Huh? The trial court upheld the law, based on the old precedent.”

    Wasn’t the 5th Circuit judge declaring that 5th Circuit, not trial court would determine whether the Texas restriction was consitutitonal, or not? Wouldn’t that mean the trial court held the Texas restriction to be unconstitutional, contrary to 5th Circuit precedent?

    • You are mixing up the cases.

      In the case decided last week, Judge Pittman (district court judge IN the Fifth Circuit, not a judge ON the Fifth Circuit Court of Appeals) declared the TEXAS statute forbidding public carry of handguns by 18-20’s unconstitutional under Bruen. There was no Fifth Circuit case directly on point (i.e., there was not a prior decision by the Fifth Circuit deciding the constitutionality of that Texas statute under THT), so he wasn’t handcuffed by contrary binding precedent. There could have been an argument that the *reasoning* of NRA v. US should have been applied in that case, but the State of Texas has abandoned the appeal, so it’s now final.

      In the instant case, Judge Summerhays (again, a district judge IN, not ON, the Fifth Circuit) ruled the FEDERAL law prohibiting FFL’s from selling handguns/ammo to 18-20’s was constitutional, because the Fifth Circuit’s prior decision in NRA v. US decided that exact issue in 2012, arguably under the THT test. Again, as I read the opinion, he felt that prior decision — which did address the exact legal issue — handcuffed him. Reasonable minds can disagree as to whether Bruen abrogated that earlier decision (I think it did), but the Fifth Circuit will tell us for sure.

      • I get the feeling that you were or still are very successful in your career. I also appreciate the thoughtful responses to everyone’s questions. Thank You LKB.

      • carrying a handgun…(preferably concealed) pretty common these days…times have changed…but that should be reserved for grown-up”s

  11. The largest on going people generated physical threat to life and health and safety in the United States today is medical malpractice by physicians and the medical community. Over 250,000 people die annually, and millions more suffer some form of permanent injury, as a result of medical malpractice by physicians and the medical community.

    Injury or illness caused by physicians and the medical community is called “iatrogenic harm”. And unlike a plane crash or a shooting in the very public media, it rarely makes the headlines and the vast majority of iatrogenic harm is kept under wraps very easily by a host of liberal and financial interest sources such as media, politicians, medical community, corporate interests, and legal teams dedicated to ensuring quiet ‘out of court non-disclosure settlements’ happen. It is so widespread, so frequent, so massive, and so continuous in the U.S. that it dwarfs ‘firearm use’ accident and death and injury and error combined by more than 1,800 times greater.

    • Yup. And with medical schools now prioritizing “diversity” and “social justice” over admitting the best qualified students and teaching actual medical science and practice, the problems are only going to get worse.

      Recall the overpass collapse in Florida a few years back that was due to faulty engineering — by a firm that got the contract because of “diversity” requirements? Expect to see a lot more of that in the medical field, as we see more MD’s whose medical education was more focused on wokeness instead of the science and practice of medicine.

    • additionally:

      “iatrogenic harm” is also so widespread, so frequent, so massive, and so continuous in the U.S. annually in numbers that it exceeds the combined numbers of all other forms of annual ‘accident harm’.

      Its just not the U.S. though. Every ‘dacian civilized’ country on earth also has “iatrogenic harm” that is so widespread, so frequent, so massive, and so continuous just as much as it is in the U.S. .

      • In the last decade ~89% of people who contemplated or attempted committing suicide by use of any method, who underwent psychological therapies for mental health issues for suicide ideation, still ended up committing suicide due to suffering psychological iatrogenic harm.

  12. “The effect of the Bruen decision is slowly wearing off.”

    Kinda depends on the expectation, hopes, of the anti-gun control community and individuals.

    Bruen did not overturn all gun control laws; did not declare 2A absolute. What Bruen did, on the whole, was provide a roadmap for future lawsuits against gun control laws. That is, 2A supporters can now demand gun control laws be bedded in text, history and tradition (that last one is problematic). This does not nullify gun control laws that are not anchored on text, history and tradition, but provides a legal test (strict scrutiny) that can be used to challenge each gun control law, individually. No government entity is demanded to test their laws, and remove those that do not meet “the test”. “The test” is winning at trial and appeals. The “effect” is more lawsuits.

    • Well stated. But . . . a picky but important legal nit.

      “Strict scrutiny,” while a high standard, is still a “means / ends” test. I.e., under means/ends testing, first you look at whether the law / practice in question impairs the exercise of a particular right. (If it doesn’t, game over.) If it does, you go to the second step, and weigh the importance of legislative ends and the sufficiency of legislative means.

      How much the government gets the benefit of the doubt depends on the level of scrutiny applied. Under “rational basis” scrutiny, the government almost always wins. Under strict scrutiny, there must be a compelling governmental interest and the law must be narrowly tailored to satisfy that end, and so (on paper at least) the government should almost always lose. Intermediate scrutiny is somewhere in between.

      What makes Thomas’ Bruen opinion so revolutionary is that it dispenses with means / ends tests **entirely.** If the law infringes upon the Second Amendment rights (as determined by looking at the scope of the right under the text/history/tradition test), it’s game over: there is **no** opportunity for a court to “weigh” the competing interests, even under strict scrutiny.

      I think Thomas did so because he saw that as long as there was means / ends testing, courts like the Second and Ninth Circuits would *claim* that they were employing strict scrutiny, but as they did post Heller they would effectively just apply “rational basis” testing so that they could continue to treat the Second Amendment as a second class right. Like Bill Cosby’s wife in one of his sketches, Thomas has called out in a loud voice, “I HAVE HAD E-NOUGH!”

      What constitutional theorists are buzzing about is whether Bruen portends that SCOTUS will also ditch means / ends testing for other constitutional rights. When coupled with originalism (i.e., you look at what the right was intended to mean at the time it was adopted, not what you think it ought to mean today), this would be a seismic shift in favor of individual rights and away from giving the government the benefit of the doubt.

      The case that I think will soon show / confirm that SCOTUS is heading down this new road will be the affirmative action cases argued in October. I’ll go out on a limb and predict that SCOTUS (probably in an opinion written by Thomas) will similarly say, “the Fourteenth Amendment and Title VI are clear: they say ‘no discrimination on account of race,’ PERIOD. No opportunity for courts to squish out by claiming that some such discrimination is ‘justified’ because of some claimed important governmental interest like ‘diversity’ or ‘equity.’ Look at the clear language of the text and just apply it.”

  13. To the men and women between the ages of 18-21, the message is clear. You can enlist and die for your country, but you are not allowed to defend yourself in public.


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