Justice Thomas's Most Important Words?

 Gary Green, at Townhall.com has an article entitled The Most Important Long Term Significance of the Recent SCOTUS Ruling on the Second Amendment. That Significance? That the priciples upon which the Second Amendment stands as a right are to be used to evaluate American's rights, rather than the utilitarian arguments implicient in "means-end" testing, so beloved by lower courts.

The case’s specific victory for gun possession outside the home for self-defense has been rightfully lauded as the central positive Second Amendment take-away. However, the other major ruling from the case—that the “means-ends test” used by lower courts in deciding the limitations to the 2A is no longer allowed—seems to have been given far less attention. I will focus on it here because it will have the most far-reaching effects on future interpretations of the 2A, and perhaps other constitutional analyses as well.

The traditional means-ends test used by courts first looks at whether a government’s interest in over-riding an individual right is reasonable, and then at whether the government’s proposed actions are arguably a rational method for furthering the government’s interest goals. A third, subsequent component of the means-ends test often can also be applied—whether a state’s achievement of its same interest can be met by a less restrictive over-ride of an individual right.

The means-ends test in relation to the regulation of citizen gun ownership can almost always put forth a “reasonable” interest for the state because guns can injure and kill the state’s citizens through criminal misuses, suicides, and accidents. Likewise, limiting citizen access to guns could conceivably always be seen as a rational strategy to reduce these harmful outcomes. And it will almost always be plausible that there is no less restrictive means to restricting gun ownership or possession that will result in the same level of injury and death avoidance.

While careful statistical analysis, such as John Lott's book "More Guns, Less Crime" supports the notion that shall issue concealed carry is a good thing for society, such arguements are utilitarian. What if such analysis instead showed a net negative for society as a whole? Should the rights enshrined by the Second Amendment be restricted? Fortunately, the Court ignored such utilitarian arguements and instead focused on the principle arguments. Thank goodness such utilitarian arguements have been disposed of.

Justice Thomas’s majority opinion in Bruen may ultimately serve as his most important words ever—it is the original historical intent and context of the constitutional issue being examined by the courts that must be paramount.