Supreme Court’s Bruen Ruling is End of Gun Control, Maybe Democracy
It was global news on June 24, 2022 when the six right-wing Justices on the Supreme Court overturned the landmark Roe v. Wade ruling (1973) that made access to abortion a federal right for women. Little noticed was an equally damaging ruling issued the previous day by the Sinister Six. The 6–3 majority opinion in New York State Rifle & Pistol Association (NYSRPA) v. Bruen is the Court’s latest distortion and expansion of the Second Amendment. It offers constitutional protection for the dangerous practice of concealed carry in public and eliminates any consideration of public safety in future federal rulings on gun laws. Left unchecked, Bruen will lead to the eradication of what little gun control America has left — engendering carnage even worse than what we are currently facing — more than 48,000 guns death in in 2021 according to the CDC. It could also make the next January 6-type attack on our seat of government impossible to stop.
How We Got Here
The issue of individual self-defense against criminals was never even mentioned when the Second Amendment was drafted by Virginian Federalist James Madison and debated by the U.S Congress. The amendment was a response to Southern Anti-Federalists who opposed ratification of the Constitution in part because they feared the federal government would disarm their states’ militia, leaving them vulnerable to slave revolt.
At the time, militia service was compulsory for able-bodied, adult White men, age 18–45. Organized under the authority of their respective state governments, these men performed important military and law enforcement duties in their communities (this was before the advent of urban policing in 1838). Early Americans preferred volunteer militia because their experience with the occupying British made them wary of standing armies outfitted with professional soldiers. As evidence that King George III was attempting to establish “absolute Tyranny over” the American colonies, the Declaration of Independence noted “he had affected to render the Military independent of and superior to the Civil power” and “kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”
The Constitution, drafted by Madison in 1787, gave substantial new powers to the federal government. Article 1, Section 8, gave the federal Congress the power to organize, arm, and discipline the states’ militia “while reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” This section also authorized the federal Congress to “call forth” the states’ militia to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” Article 2 made the newly created American President the “commander in chief” of state militia forces “called into the actual service of the United States.”
Anti-Federalists believed the Constitution ceded too much power to the federal government and failed to provide the states and individual citizens with a Bill of Rights to protect them against potential encroachments. Control of the militia was just one of many specific problems with the Constitution cited by Anti-Federalists (e.g., Supremacy Clause, direct taxation, Mississippi River navigation/trading rights, question of whether federal government would assume states’ war debts, etc.). Initially, Madison rejected their concerns. The proposed Bill of Rights was typical of “parchment barriers” that overbearing legislative majorities in the states violated all the time, he argued. It would not be effective. “The amendments are a blemish” on the Constitution, Madison protested.
At Virginia’s convention to ratify the Constitution in June 1788, Madison debated Virginia’s first-ever governor Patrick Henry, a talented orator, and politician George Mason, one of only three delegates who refused to sign the Constitution in Philadelphia in September 1787. Henry and Mason expressed fears that the federal government would subvert the slave system in the South by withholding firearms from state militia, leaving White Southerners defenseless should their slaves revolt (slaves represented 39% of Virginia’s population by 1790). “Your militia is given up to Congress,” Henry told his fellow Virginian delegates. If the Constitution was ratified, Mason predicted “the most alarming consequences…popular resistance [by slaves]…[and] the dreadful effects which must ensue.” “Slavery is detested,” Henry reminded the convention. “The majority of Congress is to the North, and the slaves are to the South.” The North would use the Constitution to abolish slavery altogether.
These histrionics failed to carry the day — the Virginia delegates narrowly ratified the Constitution. But Mason’s words struck a chord with many Southern plantation owners and Anti-Federalists. Madison feared their opposition could ultimately destabilize the revitalized republic. Running for a seat in the House of Representatives in a tough race against Anti-Federalist James Monroe (the future president) in late 1788/early 1789, Madison relented and made a campaign promise to draft a companion Bill of Rights for the Constitution.
Madison drafted ten different amendments to assuage Anti-Federalists’ recorded concerns. The text of the Second Amendment addressed Southern fears about the federal government disarming state militia:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
The Second Amendment guaranteed that people could keep firearms in their homes and bear them in mutual defense (in militia) against a number of potential threats foreign and domestic — one of them being a hypothetical federal government that used its new powers in a tyrannical and oppressive manner. The conscientious objectors clause was a nod to the Quakers, who were pacifist and did not serve in militia for ethical reasons. The reference to “render[ing] military service in person” makes it clear what Madison meant by “bearing arms.” This was about White men providing compulsory military service in state-organized militia to protect their communities — not some insurrectionist’s fantasy about toppling the newly-created government; or paranoia-fueled attempt to wipe out crime in cities.
When Madison’s draft of the Second Amendment was sent to the House of Representatives for its consideration:
Debate in the House largely centered on the proposed Amendment’s religious-objector clause, with [Massachusetts Congressman] Elbridge Gerry, for instance, arguing that the clause would give “the people in power” the ability to “declare who are those religiously scrupulous, and prevent them from bearing arms.” Gerry proposed that the provision “be confined to persons belonging to a religious sect scrupulous of bearing arms, but his proposed addition was not accepted.” Other proposals not accepted included striking out the entire clause, making it subject to “paying an equivalent,” which [Connecticut Congressman] Roger Sherman found problematic given religious objectors would be “equally scrupulous of getting substitutes or paying an equivalent,” and adding after “a well regulated militia” the phrase “trained to arms,” which Elbridge Gerry believed would make clear that it was “the duty of the Government” to provide the referenced security of a free State.
During consideration of the amendment in the Senate, the “religious objector” clause was finally removed and other minor changes were made. Some proposals were rejected, “including adding limitations on a standing army ‘in time of peace’ and adding next to the words ‘bear arms’ the phrase ‘for the common defence.’” The final language of the amendment was transmitted to the states for their consideration in September 1789: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The states ratified the Bill of Rights including the Second Amendment in 1791.
Up until the 21st century, the consensus view of American courts was that the Second Amendment was a collective right of the People related to service in a state militia. This was the unanimous view of the Supreme Court in 1939 in the case of U.S. v. Miller, which involved two career criminals who claimed a Second Amendment right to transport an unregistered, sawed-off shotgun across state lines. The men, bank robbers Jack Miller and Frank Layton, were charged with violating the National Firearms Act of 1934, which required individuals to register sawed-off shotguns (and machine guns and silencers) with the federal government and pay a $200 tax, a large amount of money at that time. The bank robbers had done neither.
On May 15, 1939, Justice James Clark McReynolds “drawled from the [Supreme Court] bench: ‘We construe the [Second] amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.’” The National Firearms Act was thus upheld as constitutional. The unanimous 8–0 ruling stated it thusly: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” It wasn’t a controversial ruling and garnered little media attention.
The eight Justices who issued the Miller ruling were no gaggle of liberals. Just two years earlier, Democratic President Franklin Delano Roosevelt had tried (unsuccessfully) to get Congress to expand the number of Justices on the Court, so frustrated was he by its consistently pro-business, conservative decision-making.
Nobody challenged the Miller ruling for the next two decades. But when the pro-gun movement in the United States began to radicalize in the 1960s, a new perspective suddenly emerged. Brennan Center for Justice president & CEO Michael Waldman explains:
From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amendment concluded it did not guarantee an individual right to a gun. The first to argue otherwise, written by a William and Mary law student named Stuart R. Hays,[1] appeared in 1960. He began by citing an article in the NRA’s American Rifleman magazine and argued that the amendment enforced a “right of revolution,” of which the Southern states availed themselves during what the author called “The War Between the States.” At first, only a few articles echoed that view. Then, starting in the late 1970s, a squad of attorneys and professors began to churn out law review submissions, dozens of them, at a prodigious rate. Funds — much of them from the NRA — flowed freely. An essay contest, grants to write book reviews, the creation of “Academics for the Second Amendment,” all followed. In 2003, the NRA Foundation provided $1 million to endow the Patrick Henry professorship in constitutional law and the Second Amendment at George Mason University Law School. This fusillade of scholarship and pseudo-scholarship insisted that the traditional view — shared by courts and historians — was wrong. There had been a colossal constitutional mistake. Two centuries of legal consensus, they argued, must be overturned.
In 1991, former Supreme Court Justice Warren Burger (nominated by Republican Richard Nixon in 1969) famously told PBS, “The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have seen in my lifetime.”
Fraud or not, the gun lobby sensed the day would eventually come when there were five Justices on the Supreme Court so far to the right they would embrace an individual rights interpretation of the Second Amendment. That day finally came on January 31, 2006, when Federalist Society favorite Samuel Alito replaced moderate Justice Sandra Day O’Connor on the Supreme Court, giving the NRA the critical fifth vote they needed.
At the same time, right-wingers gained control of the second most prestigious court in the country — the U.S. Court of Appeals for the District of Columbia Circuit. In 2007, it became the first federal appeals court in history to declare an American gun law unconstitutional on Second Amendment grounds. The case, Parker v. District of Columbia, involved a challenge to D.C.’s popular handgun ban, which had been in place without controversy since 1976. The ruling was made by just two judges on a three-judge panel of the D.C. Circuit Court of Appeals: Reagan-nominated judge Laurence Silberman and George W. Bush nominee Thomas Griffith reversed an earlier district court ruling that held D.C. residents have no constitutional right to own handguns for personal self-defense.
At the time, Silberman was 72 years old and a senior judge on the D.C. Circuit. Senior judges are partially retired and only required to handle about 25% of an active judge’s caseload. But Silberman was an activist judge and well known for behaving in an overtly partisan manner on and off the bench.[2] Now beyond his ultimate goal of being nominated to the Supreme Court after three close calls (in 1987, 1990 and 1991), Silberman decided he could nonetheless etch his name in history by radically revising the meaning of the Second Amendment — forcefully separating it from it from militia service.
In the majority opinion in Parker, Silberman declares, “The prefatory language announcing the desirability of a well-regulated militia [in the text of the Second Amendment] — even bearing in mind the breadth of the concept of a militia — is narrower than the guarantee of an individual right to keep and bear arms.” The individual use of firearms wasn’t even mentioned during the drafting and consideration of the Second Amendment — much less guaranteed — so Silberman makes up his own history by way of explanation. “This is evident from the ratification debates, where the Federalists relied on the existence of an armed populace to deflect Antifederalist criticism that a strong federal government would lead to oppression and tyranny,” he writes. “Antifederalists acknowledged the argument, but insisted that an armed populace was not enough, and that the existence of a popular militia should also be guaranteed.”[3]
To be clear, at no time during the ratification debates did Federalists (including Madison) challenge the integrity of state militia, whose vital role was affirmed in the Constitution pre-Bill of Rights. Nor did Federalists ever advocate for resistance to federal tyranny by unorganized, armed individuals. The only people in America advocating for an individual right to keep and bear firearms in 1791 — and/or an individual right to rebel against the federal government — were radical Anti-Federalists (think Shays Rebellion). But the arguments of radical Anti-Federalists were totally ignored by their respective state ratification conventions.
Silberman also cites four Federalist Paper essays (8, 28, 46, 59) as proof of his interpretation of the Second Amendment, but these essays have nothing to do with the individual use of firearms. The first three explicitly discuss the militia and its role in the People’s defense. In the fourth, Alexander Hamilton advocates for the federal government to regulate its own elections, as opposed to the states.
Judge Karen Lecraft Henderson, a George H.W. Bush-nominee, pointed all this out quite articulately in her dissent from Parker’s majority opinion, concluding, “The right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States.”
Then-District of Columbia Mayor Adrian Fenty decided to appeal the panel ruling en banc to the full Court of Appeals for the D.C. Circuit, which included the following judges in addition to Silberman, Griffith, and Henderson: Reagan-nominated Douglas Ginsburg, Clinton-nominated David Tatel, Clinton-nominated Judith Rogers, George W. Bush-nominated Janice Rogers Brown, George W. Bush-nominated Brett Kavanaugh, Clinton-nominated Merrick Garland, George H.W. Bush-nominated A. Raymond Randolph, and Reagan-nominated David B. Sentelle. The full court denied D.C.’s request for an en banc hearing by a vote of 6–4. The three Clinton nominees joined H.W. Bush nominee Randolph in the minority.
After the denial by the full D.C. Circuit, with D.C.’s handgun ban void barring further action by the courts, Mayor Fenty had two distinct options:
a) ALL OR NOTHING STRATEGY. Appeal the D.C. Circuit panel ruling up to another freshly-minted right-wing majority on the Supreme Court and hope they reverse it. This would run a huge risk because the five Republican-nominated Justices on the Supreme Court would not only be able to permanently strike down D.C.’s handgun ban, but also change the very criteria by which federal judges evaluate the constitutionality of gun control laws nationally.
b) LIVE TO FIGHT ANOTHER DAY STRATEGY. See the writing on the wall with the Supreme Court’s new right-wing majority. Don’t appeal the D.C. Circuit panel ruling. Instead, work with the D.C. Council to legislatively repeal D.C.’s handgun ban and replace it with a similarly effective policy — licensing and registration of handguns. This would almost certainly moot the case, as the plaintiffs would be given exactly what they originally asked for — access to handguns in the home in the District of Columbia.
For reasons that have never been adequately explained, Fenty chose option (a), handing the ball to Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito so they could permanently enshrine Laurence Silberman’s insane vision of the Second Amendment as law of the land. After the right-wing Justices eagerly accepted Fenty’s appeal, the case became known as D.C. v. Heller (named after one of the plaintiffs from Parker, D.C. security guard Dick Heller — a piece of work).
During oral arguments for Heller on March 18, 2008, the two “moderate” right-wing Justices on the Supreme Court made it clear they were just as extreme as their far-right colleagues on guns. Parroting gun lobby propaganda and ignoring U.S. v. Miller completely, Justice Kennedy told acting solicitor general Walter E. Dellinger that the Second Amendment confers “a general right to bear arms.” Chief Justice Roberts, for his part, concocted a Rambo-esque fantasy about going gunslinger in his family home. Questioning whether D.C.’s gun laws would allow him to use his handgun during a home invasion at night, Roberts mocked, “so then you turn on the lamp, you pick up your reading glasses” — acting as if it was impossible to open a modern-day gun safe in a few seconds. Why would a man who can’t manipulate a (glow-in-the-dark) 0–9 keypad with his glasses on and a lamp helping him think it is OK to open fire with his handgun in a dark house in which his wife and two young children are present? [Both of Roberts’ adopted children were under the age of 10 at the time.] It’s the type of daft fantasy you might hear from a middle-age gun nut at Glock Talk.
Smelling blood in the water, NRA CEO Wayne LaPierre attended Heller’s oral arguments along with several other pro-gun lobbyists. He liked what he heard, telling the Associated Press the five right-wing Justices on the Court would declare D.C.’s handgun ban “not reasonable and unconstitutional.”
The subsequent 5–4 ruling in D.C. v. Heller confirmed LaPierre’s prediction — the right-wing of the Court overturned D.C.’s handgun ban and announced the 217-year-old Second Amendment was now an individual right totally unrelated to service in a state militia (as stated plainly in its text). This was a sea change in the Supreme Court’s thinking on guns, but the NRA fell short on something else it lobbied for. Chief Justice Roberts and Justice Kennedy would not go along with implementing a strict scrutiny standard to determine the constitutionality of gun control laws. Under the high standard of strict scrutiny, gun control laws would have to be narrowly tailored and serve compelling government interests.
Instead, Roberts, Alito, Kennedy, Scalia, and Thomas simply ordered the District of Columbia to allow Dick Heller to license and register his handgun (as the city had been doing for residents who keep rifles and shotguns in the home for decades). In Heller’s majority opinion, Justice Scalia even acknowledged that handgun violence is a problem (albeit briefly) and highlighted the following gun control laws as presumptively lawful: “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Because there was only one other municipal handgun ban in place in the U.S. in 2008 (in Chicago), and because the Heller ruling failed to establish a strict standard of scrutiny for evaluating gun control laws, it ultimately had very little effect beyond the District. Federal courts nationwide continued to deem the overwhelming majority of gun control laws constitutional. The NRA still had no way to force well-meaning federal judges (who care about public safety) to strike down gun laws. So the gun lobby continued to file federal lawsuits in hope the right-wing Justices on the Supreme Court would soon take another Second Amendment case and go even further in delegitimizing gun control.
Justice Kennedy had gone as far as he wanted to go, however, and would not provide the critical fifth vote to hear a new Second Amendment case. It was not until Kennedy retired in mid-2018 and was replaced by Brett Kavanaugh (who made his intentions on the gun issue known while serving on the D.C. Circuit Court of Appeals) that the NRA got another bite at the apple.[6]
In January 2019, the newly-constituted right-wing majority of the Supreme Court agreed to hear the case of New York State Rifle & Pistol Association (NYSRPA) v. NYC. The plaintiff, NYSRPA, is the NRA’s New York state affiliate organization. The president of NYSRPA, troglodyte Tom King, is also a longtime member of the NRA’s national board of directors. NYSRPA v. NYC involved a challenge to New York City’s ban on transporting licensed firearms outside the city. The NRA’s real goal in the case, however, was to get the right-wing Justices (now Roberts, Thomas, Alito, Neil Gorsuch, and Kavanaugh) to: a) Declare public carry a constitutional right, and; b) Implement their treasured strict scrutiny standard for gun control laws.
New York City officials read these tea leaves and employed the Live to Fight Another Day Strategy, repealing the minor gun transportation regulation in question in July 2019.[4] This forced the Supreme Court’s right-wing Justices to moot the case without issuing a(nother) ruling expanding the parameters of the Second Amendment.[5] Another positive aspect of NYC’s decision: No other municipality in America had to repeal a similar gun transportation law.
NYC officials had learned from Adrian Fenty’s mistake, but everyone knew the NRA would be coming back for more. Thanks to Republican Senate Majority Leader Mitch McConnell’s court-packing scheme, a sixth right-wing Justice was confirmed to the High Court in October 2020: Amy Coney Barrett. Now the NRA had six votes on the Supreme Court far to the right of the American people. As soon as another gun case reached the Court, their dream of ending gun control would be back on track.
The NRA used their New York affiliate group as plaintiff again in NYSRPA v. Bruen, this time challenging New York City’s Sullivan Act, which had stood for more than a century. Specifically, the NRA took aim at the “proper cause” provision in the law which required applicants for concealed carry permits to provide a better reason for wanting one than “I’m paranoid” or “I like to play vigilante.” Successful applicants included those whose jobs involved transporting valuables like jewelry and individuals being stalked by someone with a history of violence. The Supreme Court accepted the Bruen case in April 2021, four months after the NRA filed for cert.
At this point, New York City’s next step was obvious: Replicate your successful strategy from NYSRPA v. NYC. Repeal the “proper clause” provision and rewrite the city’s concealed carry permitting law as a “shall-issue” law, but with tougher screening for history of violence and additional requirements for applicants (more training, character references, interviews with law enforcement, etc.). This would eliminate the discretion NYC officials have in deciding whether to issue concealed carry permits in the first place, but safeguard public safety by ensuring that violent people cannot successfully obtain them. If five or more of the six right-wing Justices on the Court refused to moot the case at that point, it would openly telegraph their partisan motivation for any forthcoming ruling expanding the Second Amendment, damaging its integrity.
But the mayoral administrations of Bill de Blasio and successor Eric Adams did not replicate the city’s successful strategy from NYSRPA v. NYC. They allowed the “proper cause” provision in the Sullivan Law to stand and the predictable happened again. The six right-wing Justices on the Supreme Court struck down “May-Issue” concealed carry permitting systems nationwide in the NYSRPA v. Bruen ruling on June 23, 2022. In doing so, they created a Byzantine new standard to evaluate the constitutionality of gun control laws that will confound public safety efforts and allow opportunistic, right-wing federal judges to strike down such laws at will.[7]
Much Worse Than Heller
The author of the 2008 Second Amendment expansion in D.C. v. Heller, Justice Scalia, at least made the pretense of caring about gun violence and its impact on human beings, writing, “We [Justices Scalia, Thomas, Roberts, Kennedy, and Alito] are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.”
Justice Clarence Thomas, the author of the 6–3 majority opinion in NYSRPA v. Bruen, makes it clear he’s flipping the script. The one time he even mentions gun violence in the Bruen ruling is to mock those who care about the lives being lost, writing, “New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller: ‘handgun violence,’ primarily in ‘urban area[s].’” Thomas might not care about Americans being shot, but he boils over about Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson implying that “guns are bad” in their dissenting opinion. It’s idolatry in its purest, most repulsive form and familiar to anyone who has ever dealt with gun nuts online or in person.[7]
The harbinger of doom for gun control is the arbitrary and enigmatic new test Thomas invents to evaluate the constitutionality of gun laws. Playing God, Thomas declares that federal judges can no longer use any means-end analysis in this process by asking, “What is the government’s public safety interest in enacting a certain gun regulation?”[8] Instead, Thomas directs them to focus solely on “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”
As for state and municipal governments, they must “prove that [their] firearms regulation[s] [are] part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” To do this, they must point to a gun law from 1791 or before that is similar to the one they’ve enacted today. Given that neither judges nor lawyers are historians, you can see how such an analysis might prove difficult. Additionally, “There’s no other right where we say the government’s regulatory power is solely the power that they had back in the 17- and 1800s,” observed Adam Winkler, a professor at UCLA Law. “We just don’t do that.”
Even though governments must show “historical analogues” for any gun control laws they want to enact, the guns themselves don’t need any analogues to enjoy Second Amendment protection. Thomas reminds us of this tidbit from Heller: “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Now imagine the full range of semi- and fully-automatic weapons that sociopaths are capable of “bearing” on your street and you’ll see where this is eventually headed.
Amici for New York City in Bruen deserve credit for meeting Thomas’ historical challenge, providing myriad examples of earlier laws that strictly regulated public carry in the United States. A brief submitted by 17 university professors of English and American history identified earlier regulations banning public carry in post-Revolutionary North Carolina, Massachusetts, Maryland, Virginia, Tennessee, and Maine; and establishing “good cause” requirements for public carry in nineteenth century New Mexico, Massachusetts, Virginia, Tennessee, and Texas. Additionally, “ultimately, during the first half of the twentieth century nearly every state adopted a law that vested discretion in state and local officials to grant (or deny) good-cause licenses or permits to carry dangerous weapons in public.”[9]
Thomas and the right-wing Justices never had any intention of playing a fair game, however. They simply ignored every single restriction on public carry identified by the (actual) historians and did what they’ve been waiting to do since Kavanaugh replaced Justice Kennedy: dismantle states’ longstanding, constitutional police power and make gun control in the United States nigh impossible.
The fingerprint of the NRA is everywhere in Bruen, even beyond them being the plaintiff in the case. Thomas cites NRA-funded pseudo-scholars like David Kopel of the Independence Institute to back up his assertions in the majority opinion. The NRA Civil Rights Defense Fund submitted an amicus brief. Other amici for NYSRPA read like a list of pro-gun scammers and fascist nutjobs: John Lott’s Crime Prevention Research Center, Black Guns Matter, Dudley Brown’s National Association for Gun Rights, Matt “Pride Month makes me furious” Clark’s Alabama Center for Law and Liberty, treasonous “Big Lie” funder The Claremont Institute, Pat Robertson’s American Center for Law and Justice, and the Independent Women’s Law Center, a dark money misogynist group.
Once again, the NRA didn’t get exactly what it wanted with the Bruen ruling — a blanket, strict scrutiny standard for the evaluation of all gun control laws. But they got close. Thomas’ vague new standard will result in real confusion in the federal courts and generate plenty of new opportunities for the Supreme Court to continue its Second Amendment expansion project.
To reinforce this, just one week after issuing the Bruen ruling, the right-wing Justices on the Supreme Court remanded four gun rulings back to lower federal courts for their review. In these cases, lower courts had upheld the constitutionality of high-capacity ammunition magazine bans in New Jersey and California, Maryland’s assault weapons ban, and Hawaii’s permitting system for open carry.
The message of Thomas & Co. to these federal courts was clear: repeal gun control laws yourselves or we’ll do it for you.
The Early Returns
Under order of the Bruen ruling, New York City scrapped the “proper cause” requirement in its concealed carry permitting law in September 2022, but strengthened the screening required to obtain a permit, adding some new requirements (e.g., four character references, safety training with live=fire testing, an in-person interview, search of applicant’s social media accounts from past three years for evidence of violent behavior, etc.). These are all steps NYC officials could have taken earlier to moot Bruen and prevent a ruling. Because they didn’t, the following states also had to immediately repeal their “may-issue” permitting systems: California, Hawaii, Maryland, Massachusetts, and New Jersey.
New York and other Blue states have continued to place an emphasis on public safety since Bruen, even aggressively enacting new gun control laws they know they will have to defend in court (such as Delaware’s new assault weapons ban). But that’s the silver lining in a decidedly gloomy picture nationwide.
It’s not just “may-issue” laws, or even assault weapons bans — all kinds of gun regulations are being struck down by federal courts nationwide because of Bruen. According to an analysis by Jake Charles, an associate professor at Pepperdine Caruso School of Law, in the eight months following the June 2023 ruling there were 212 cases adjudicated in federal courts across the country challenging existing gun laws. In 31 of them, the gun law in question was invalidated. The laws declared unconstitutional include age restrictions on gun ownership/purchase; prohibitions on obliterating the serial number on firearms; licensing and registration requirements for fully-automatic machine guns, and; bans on untraceable “ghost guns.” Nick Suplina, a senior vice president of law and policy at Everytown for Gun Safety, admits Bruen has “emboldened the farthest fringes of the [pro-gun] movement to say that everything that you could possibly think of in the realm of gun safety is unconstitutional.”
“Successful claims after [the 2008 ruling in D.C. v.] Heller trickled in like a stream, with only a small handful of wins even a year-and-a-half out from the decision,” observed Jake Charles. “Bruen, by contrast, has come on like a tidal wave … It wasn’t so much Bruen’s holding that the Second Amendment protects a right to carry in public that generated such monumental shock waves, but (like many of us predicted) the sweeping new test. That test was, as the district court called it in United States v. Alaniz, ‘a revolutionary constitutional framework.’”
One of the ugly new federal court rulings was issued on March 2, 2023. A three-judge panel of the 5th Circuit Court of Appeals tossed out a federal law that prohibits individuals under active restraining orders for domestic violence from possessing and purchasing firearms. The panel ruling has stopped enforcement of the law in the states of Texas, Louisiana, and Mississippi. Following Bruen’s insane logic, the majority opinion in U.S. v. Rahimi argues that since America’s Founders didn’t think armed guys beating up their wives was a problem in 1791 when the Second Amendment was ratified, we can’t do anything about it today — no matter how many abusers are threatening/shooting/killing women with guns:
Doubtless, [the federal prohibition on domestic abusers owning/buying guns] embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on [defendant Zackey] Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right.
The defendant in the case, Zackey Rahimi:
…was involved in five shootings in and around Arlington, Texas, between December 2020 and January 2021, including shooting into the residence of an individual to whom he had sold narcotics; shooting at another driver after a wreck, fleeing, returning in a different vehicle, and shooting again at the other driver’s car; shooting at a constable’s car; and shooting into the air after his friend’s credit card was declined at Whataburger. Arlington police identified Rahimi as a suspect in the shootings and executed a warrant on his home, where they found a rifle and a pistol. Rahimi was at that time under a Texas state court civil protective order for an allegation of assault family violence.
The restraining order issued against Rahimi “stemmed from an incident in which [he] knocked his girlfriend to the ground and pushed her into his car, causing her to hit her head against the dashboard. He later called her and told her he would shoot her if she told anyone about the assault.”
The U.S. Department of Justice appealed the Rahimi ruling to the Supreme Court. The Justices agreed to hear the case on June 30, 2023; almost one year to the day after the Bruen ruling was issued. A ruling in Rahimi can be expected during the summer of 2024.
There is speculation as to why the Court decided to take the Rahimi case. Some believe that Roberts and Kavanaugh might be troubled by Thomas’ arbitrary new historical test for gun control laws. This is because of a concurrent majority opinion the two signed onto in Bruen in which they emphasized, “Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”
Could Roberts and Kavanaugh join with Justices Kagan, Sotomayor, and Jackson to uphold the federal prohibition on domestic abusers owning/buying guns? Brennan Center for Justice CEO Michael Waldman sees this as the probable outcome, writing, “Most likely the Court will try to retreat from the vile implications of the Fifth Circuit’s Rahimi opinion.”
But this might be wishful thinking. First, there is no way Clarence Thomas is going along with any attempt to tone down his opinion in Bruen. He’s far too arrogant and has made it clear he values easy access to guns more than human lives. Second, Justices Barrett, Gorsuch and Alito haven’t shown any signs that Thomas’ arbitrary new test for gun control laws concerns them. Finally, even if a Roberts-Kavanaugh-Kagan-Sotomayor-Jackson coalition forms to issue a majority opinion in Rahimi, it is likely to be tailored as narrowly as possible, perhaps simply determining that in this case (gun prohibitions for domestic abusers) there are relevant historical analogues in America’s gun laws from 1791 or before. Don’t count on any substantive revision of Thomas’ dangerous test itself.
Where are Gun Control Groups?
The gun control movement’s “strategy” to counter Bruen’s looming wrecking ball seems to involve a combination of hope and naivete.
Wielding a single-edged sword, Brady’s legal team argues that lower federal courts still have “discretion” to judge gun laws constitutional after Bruen. “Although certain judges have invalidated gun laws designed to protect some of the most vulnerable Americans in these early post-Bruen days, they write, “the appellate courts could just as easily reverse and uphold the laws, because Bruen’s malleable standard gives judges so much latitude.” [As if the right-wing Justices’ seething pro-gun bias doesn’t come through in every page of the ruling.] Brady also hopes lower court judges “can take a cue” from the concurrent majority opinion in Bruen by Roberts and Kavanaugh, even though it is unbinding and has zero legal weight. Nonetheless, Brady points to it as a “promise” that the Supreme Court will continue to allow a variety of gun regulations.
On its website, Everytown for Gun Safety lists eight types of gun control laws that it claims “will withstand [legal] review” post-Bruen. Remarkably, most of the laws on the list have already been overturned by federal courts since June 2022, including “disarming domestic abusers.”
The denial is strong. “The Rahimi decision does not impact Everytown’s ongoing strategy to pass and defend the strongest gun safety protections nationwide, including domestic violence laws,” Everytown claims. “We continue to believe that our core gun laws will be upheld in time.” [How much time they don’t say…]
“[Rahimi] will allow known abusers to keep their guns, and acquire more, with no regard for whether they will use these weapons to coerce, injure, and kill their victims,” warns the director of law and policy at the Johns Hopkins Center for Gun Violence Solutions, Kelly Roskam. “Surely this is not what the majority in Bruen intended.”
It isn’t?
These are Not Good People
I’m adding Appendix A below for anyone who needs a reminder that the right-wing Justices on the Supreme Court are rank individuals acting in bad faith. [While ruling on a lower court, one of them (Gorsuch) already sided with a violent felon who wanted his “gun rights” — under the argument that the man didn’t know he was a felon!]
My Ultimate Fear
The horrific gun violence we are seeing in this country is going to get worse as the right-wing Justices on the Supreme Court gradually chip away at what remains of American gun laws. Gun control groups need to acknowledge what’s happening and articulate real solutions to preserve gun laws (and therefore life — the highest right of all). Right now, their strategy concerning Bruen seems to be Grin and Bear It — allowing the NRA to enshrine its lethal fantasy about the Second Amendment in American jurisprudence with minimal resistance. It’s the antithesis of the successful approach employed by the pro-gun movement from the 1960s to 2008; when it refused to acknowledge our courts’ traditional reading of the Second Amendment as a collective right and set about articulating an alternative it preferred.
Beyond escalating violence in our communities, I’m also deeply concerned about Bruen’s implications for democracy…
The January 6, 2021 coup attempt failed because Donald Trump’s private militia (Oath Keepers, Proud Boys, Three Percenters, Texas Freedom Force, Ohio State Regular Militia, etc.) was unable to move an enormous cache of firearms and ammunition from a Comfort Inn hotel in Ballston, Virginia to the U.S. Capitol in Washington, D.C. Under the District’s gun laws, Trump’s fascists would have been arrested long before they reached the Capitol armed (as some lone insurrectionists were). Why? The District of Columbia requires residents to obtain a license before purchasing/owning firearms. Once bought, those weapons must be registered with law enforcement. The city also bans semiautomatic assault weapons, high-capacity ammunition magazines that hold more than 10 rounds, and the open carry of firearms.
Some insurrectionists reached the Capitol with concealed handguns, we know, but — seeing few or no other armed parties in their midst — none of them dared to open fire.
As courageously as Capitol Police officers defended the Capitol Building on January 6 (and they are deserved American heroes), there is no way they could have stopped 2,000 Trumpists armed with firearms. Trump’s fascist mob got to within 40 feet of Vice President Mike Pence at one point and Members of Congress were not far behind. Consider that the effective range of a 9mm pistol is 165 feet. The effective range of an AR-15 is 1,800 feet. The reason we still have a republic today is because D.C.’s gun laws limited Trump’s fascist militia to improvised melee weapons on January 6th: baseball bats, flagpoles, truncheons, crutches, etc.
Things will be different next time.
Bruen has already toppled the District of Columbia’s “good cause” requirement for concealed carry applicants (like NYC’s). The next targets that Thomas and the right-wing Justices have laid out (with the lower court rulings they remanded) are good cause requirements for open carry of firearms in public, and bans on assault weapons and high-capacity ammunition magazines. Alito and Kavanaugh have already declared gun licensing and registration unconstitutional as lower court judges. And even “shall-issue” carry permitting might not be safe given that the NRA’s real goal, now implemented in 27 states, is to do away with such permitting altogether.
It is not unrealistic to imagine a District of Columbia 5–10 years from now that is incapable of preventing heavily-armed fascists from amassing on the border of the U.S. Capitol Grounds. Incapable because they can no longer require individuals to obtain a license to purchase/own/carry firearms or ban assault weapons/high-capacity ammunition magazines.
Those who value freedom and democracy should work diligently to prevent that day from ever coming.
###
ENDNOTES
[1]. Stuart Hays, who practiced law in Virginia and passed away in 2014, was a neo-Confederate. In the article he writes, “History has proved that no man without a standing army can subjudicate [sic] a free and armed people. [British King] George III did not profit from this advice. Americans did understand the nature and effects of law by force and edict. Hence the preservation of the militia and the right to bear arms: remembered also was the right to revolt when the laws of the government began to oppress; witness the War Between the States in 1861.” Elsewhere, he complains that the Supreme Court has failed to declare the Second Amendment an individual right when it’s had the opportunity: “The United States Supreme Court has admitted there are exceptions to the right to bear arms; and, then refused to recognize the right itself. Isn’t this a recognition of the right, and also perhaps an understanding that the Presser [v. Illinois] and Cruickshank decisions [by the Supreme Court in 1886 and 1876, respectively] were the children of the War Between the States and ‘Black Republican Reconstructionism’?” If someone was to submit the same exact article to a law journal today, virtually every law school in the country would reject it on grounds of racism and disinformation.
[2]. Laurence Silberman’s political work for the Republican Party goes all the way back to 1969 and the Nixon administration, where he served as an undersecretary of labor and deputy attorney general. He always exhibited a foul temperament in the workplace, but Silberman seems to have been a principled public servant until the mid-1970s. After Nixon resigned in disgrace, incoming president Gerald Ford’s administration shipped Silberman off to Yugoslavia to serve as ambassador. When he returned from that stint in December 1976 (Ford having lost the presidential election to Democrat Jimmy Carter), Silberman took an executive job at a San Francisco bank. He also began a fellowship at the right-wing American Enterprise Institute with two other “newly unemployed lawyers”: Antonin Scalia (who would write the Supreme Court’s majority opinion in 2008’s D.C. v. Heller) and Robert Bork.
Like many Americans, Silberman moved further to the right politically during the Carter administration. Rejecting the moderate politics of his previous bosses (Nixon/Ford), he placed what was then considered a long-chance bet on the campaign to elect actor-firebrand Ronald Reagan president in 1980. Reagan, a former California governor, had lost a nasty, protracted battle for the 1976 Republican presidential nomination to Ford. Silberman became the co-chair of Reagan’s team of foreign policy advisers.
Two months before the presidential election in September 1980, when Carter’s State Department was still frantically negotiating with the Iranian government for the release of 52 American hostages being held in Tehran, Silberman and two other Reagan advisers (Robert McFarlane and Richard Allen) met with a sympathetic emissary from the Iranian government at L’Enfant Plaza Hotel in Washington, D.C. Silberman and his campaign colleagues did not inform Carter’s State Department of this meeting at any time. Silberman claims they immediately rejected the Iranian’s offer to delay releasing the 52 American hostages until after Reagan’s inauguration in January 1981 if he would surreptitiously supply Iran with arms as president. This is ultimately exactly what happened, however. The hostages were released five minutes after Reagan took office and he armed them without notifying Congress. Additionally, the L’Enfant Plaza Hotel meeting was not the only one the Reagan campaign took with representatives of the Iranian government prior to the election. Some argue Reagan’s “October Surprise” might have swung the election his way.
After Reagan was inaugurated as president, he rewarded Silberman by nominating him for a judgeship on the U.S. Court of Appeals for the D.C. Circuit. The self-admitted political “activist” was confirmed by a voice vote in the Senate.
The ethical requirements of serving in the judiciary didn’t stop Silberman’s partisan activity for the GOP. In 1990, he was part of the majority on a three-judge panel that overturned Reagan aide Oliver North’s conviction for obstructing Congress’ investigation into the Iran-Contra scandal (the other judge in the majority was Jesse Helms protégé David Sentelle). Silberman refused to recuse himself from the case despite his direct involvement in the scandal during his time as a Reagan campaign advisor.
The next year, Silberman made the short list for Republican Supreme Court nominees for a third time. Like the previous two times, he was passed over. But he helped the man who edged him out in 1991, Clarence Thomas, by feeding malicious, unsubstantiated gossip about accuser Anita Hill to then-right-wing journalist David Brock. Silberman speculated to Brock that Hill was a lesbian who was “acting out” by accusing Thomas of sexually harassing her in the workplace. Silberman and his wife both provided this type of vile conjecture for Brock’s 1993 book smearing Hill (“The Real Anita Hill”).
The Silbermans also pushed Brock to publish the “Troopergate” story that ultimately led to the impeachment of President Bill Clinton for sexual impropriety. Brock discusses judge Silberman’s role in his 2002 book “Blinded by the Right”:
Though he was a sitting judge who would rule on matters to which the Clinton administration was a party, Larry [Silberman] strongly urged me to go forward…. The trooper story would be much bigger than [my] Anita Hill book, he predicted. Clinton would be “devastated.”
The special counsel that ended up investigating Clinton’s sexual affairs beginning in 1994, Ken Starr, was an ex-judge and close personal friend of Silberman’s. The two had served together on the Court of Appeals for the D.C. Circuit from 1985 until 1989. Again, Silberman refused to recuse himself from subsequent cases that came before the court involving Starr and the Clinton administration, despite his personal relationship with the former and relentless efforts to bring down the latter from behind the scenes.
It should also be noted that Silberman was an active member of the Federalist Society and a frequent speaker at their events. The speeches he gave there, right up until his death in 2022, were overtly partisan, praising Republicans and attacking the political left. He could be remarkably petty, too. For example, he once emailed nearly every federal judge in America asking them to deny clerkships to Yale students who had participated in a peaceful protest against a speaker who supported imprisoning homosexuals and trans-friendly doctors.
It’s important to see Laurence Silberman for exactly who he was — the original role model for the partisan, corrupt right-wing federal judges/Justices so ubiquitous in our judiciary today.
[3]. In his unprecedented pro-gun ruling, judge Silberman singled out some gun control policies he saw as presumptively constitutional. This included training requirements for gun owners and barring people who exhibit “personal characteristics, such as insanity or felonious conduct” from buying guns.
[4]. Full disclosure: I advocated for NYC to take this step and repeal their gun transportation regulation in a March 28, 2019 op-ed in the New York Daily News. I was working as director of One Pulse of America at the time. Groups who promoted the law’s repeal behind the scenes in conversation with NYC officials include the Giffords Law Center and Brennan Center for Justice. Likely also March For Our Lives and Everytown, who filed amicus briefs in NYSRPA v. NYC.
[5]. Justices Alito, Gorsuch and Thomas dissented from the 6–3 decision in NYSRPA v. NYC and still wanted to move forward with the case after the plaintiffs got exactly what they asked for! This was a sign of things to come with Bruen.
[6]. Donald Trump appointed 54 federal appellate judges in just four years, flipping the balance of several appellate courts from majority Democrat appointees to majority Republican. He also appointed 174 federal district court judges.
[7]. As Susan Bigelow Reynolds, professor of Catholic Studies at Emery University, puts it: “Every successive mass shooting feels like another ritual sacrifice to the idol of the gun.”
[8]. Consider that the very first sentence of the Constitution states that one of its chief purposes is to “insure domestic Tranquility.” That doesn’t mean daily mass shootings.
[9]. The historians also point out that even in the antebellum South the practice of concealed carry was frowned upon and perceived as creating a “tendency to secret advantages and unmanly assassinations.”
APPENDIX A
Views on Guns:
* As a judge on the 10th Circuit Court of Appeals, Gorsuch sided with a criminal found illegally in possession of a firearm. Gorsuch claimed that the man, who previously pled guilty to felony attempted robbery, enjoyed Second Amendment protection because he didn’t know he was a felon.
* While serving on the 3rd Circuit Court of Appeals, Alito wrote a dissent striking down the 1934 National Firearms Act, which requires the licensing and registration of privately-owned, fully-automatic machine guns. The Act is arguably the most successful gun control law in American history. Since it became law in 1934, there have been only four crimes committed with machine guns in which someone was killed!
* In a dissent in a case before the 7th Circuit Court of Appeals, Barrett declared it is unconstitutional for the government to prohibit non-violent felons from buying and owning firearms. The felon in question, who dubbed himself “Dr. Comfort,” was convicted of federal mail fraud after selling orthopedic shoe inserts that he falsely claimed were covered by Medicare. Barrett asserted that moral character (or lack thereof) should play no role in determining who gets guns.
* On the D.C. Circuit Court of Appeals, Kavanaugh wrote a dissent in which he declared that assault weapons bans, ammunition magazine size limits, and laws requiring privately-held firearms to be registered are unconstitutional.
Sexual Harassment/Attempted Rape:
Multiple women have accused Clarence Thomas of sexually harassing them. Several worked under his direction at the Equal Employment Opportunity Commission (EEOC), an agency tasked with preventing discrimination (against women and others) in the workplace. Thomas headed EEOC during the Reagan/George H.W. Bush administrations (1982–1990). Here are his accusers in their own words:
· Anita Hill worked as a lawyer-advisor for Thomas at the Department of Education, where he was assistant secretary of education for civil rights, and then as his assistant at EEOC, from 1981–1983: My working relationship became even more strained when [Thomas] began to use work situations to discuss sex. On these occasions, he would call me into his office for reports on education issues and projects, or he might suggest that, because of the time pressures of his schedule, we go to lunch to a government cafeteria. After a brief discussion of work, he would turn the conversation to a discussion of sexual matters. His conversations were very vivid. He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or large breasts involved in various sex acts. On several occasions, Thomas told me graphically of his own sexual prowess … My efforts to change the subject were rarely successful. Throughout the period of these conversations, he also from time to time asked me for social engagements … One of the oddest episodes I remember was an occasion in which Thomas was drinking a Coke in his office. He got up from the table at which we were working, went over to his desk to get the Coke, looked at the can and asked, “Who has put pubic hair on my Coke?” On other occasions, he referred to the size of his own penis as being larger than normal, and he also spoke on some occasions of the pleasures he had given to women with oral sex.
· Angela Wright worked as Thomas’ director of public affairs at EEOC in 1983: Clarence Thomas did consistently pressure me to date him … [He] made comments about women’s anatomy quite often. At one point, [Thomas] came by my apartment at night, unannounced and uninvited, and talked in general terms, but also he would try to move the conversation over to the prospect of my dating him. We are talking about a general mode of operating … I specifically recall being at a seminar, I can’t even tell you which seminar, because we had many of them, when [he]commented on the dress I was wearing and asked me what size my boobs were.
· Sukari Hardnett worked as a special assistant to Clarence Thomas at EEOC from 1985–1986: If you were young, black, female and reasonably attractive and worked directly for Clarence Thomas [at EEOC], you knew full well you were being inspected and auditioned as a female. You knew when you were in favor because you were always at his beck and call, being summoned constantly, tracked down wherever you were in the agency and given special deference by others because of his interest. You knew when you had ceased to be an object of sexual interest — because you were barred from entering his office and treated as an outcast or, worse, a leper with whom contact was taboo … That is why I resigned and left the EEOC.
· Moira Smith was a Truman Foundation scholar in June 1999: At the age of 24, I found out I’d be attending a dinner at my boss [then-Truman Foundation executive secretary Louis Blair’s] house with [Supreme Court] Justice Clarence Thomas. I was so incredibly excited to meet him, rough confirmation hearings notwithstanding. He was charming in many ways — giant, booming laugh, charismatic, approachable. But to my complete shock, he groped me while I was setting the table, suggesting I should sit “right next to him.” When I feebly explained that I’d been assigned to the other table, he groped again… “Are you sure??” I said I was and proceeded to keep my distance. This was three years after a date rape [by another man.]
Kaye Savage, a civil servant at EEOC, tells a story about visiting Thomas at his apartment one day just after he arrived at EEOC. There wasn’t much more than a mattress on the floor and a stereo in Thomas’ one-bedroom studio at that point, in addition to “a huge, compulsively organized stack of Playboy magazines, five years’ worth of them, organized by month and year.” The apartment’s main room, the little galley kitchen, and even the bathroom door were covered with photos of large-breasted nude women from the magazines. When Savage asked Thomas about all this pornography, he told her, “I don’t drink and I don’t run around.” The magazines were the one thing of value he deemed worth taking with him from his collapsing marriage to his first wife Kathy Ambush, he explained. Savage was quoted in the 1994 book “Strange Justice: The Selling of Clarence Thomas” by journalists Jane Mayer and Jill Abramson.
Brett Kavanaugh, for his part, has been accused not only of sexual harassment but also of attempted rape. During his confirmation hearing before the Senate Judiciary Committee, Palo Alto University professor Christine Blasey Ford emotionally testified that Kavanaugh and a friend, Mark Judge, tried to rape her at a party in 1982 when they were prep students. She is not the only woman who has come forward to accuse Kavanaugh of sexual offenses, but the GOP-led Judiciary Committee and Trump-led FBI (which got more than 4,500 tips about Kavanaugh’s sexual deviance and alcoholism and investigated none) silenced Deborah Ramirez, who attended Yale with Kavanaugh as an undergraduate.
Here are Ford and Ramirez in their own words:
· Christine Blasey Ford: When I got to the top of the stairs, I was pushed from behind into a bedroom … Brett and Mark came into the bedroom and locked the door behind them. There was music already playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room. I was pushed onto the bed and Brett got on top of me. He began running his hands over my body and grinding his hips into me. I yelled, hoping someone downstairs might hear me, and tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes. He had a hard time because he was so drunk, and because I was wearing a one-piece bathing suit under my clothes. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming. This was what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me. Both Brett and Mark were drunkenly laughing during the attack. They both seemed to be having a good time. Mark was urging Brett on, although at times he told Brett to stop … During this assault, Mark came over and jumped on the bed twice while Brett was on top of me. The last time he did this, we toppled over and Brett was no longer on top of me. I was able to get up and run out of the room. Directly across from the bedroom was a small bathroom. I ran inside the bathroom and locked the door. I heard Brett and Mark leave the bedroom laughing and loudly walk down the narrow stairs, pin-balling off the walls on the way down. I waited and when I did not hear them come back up the stairs, I left the bathroom, ran down the stairs, through the living room, and left the house. I remember being on the street and feeling an enormous sense of relief that I had escaped from the house and that Brett and Mark were not coming after me.
· Deborah Ramirez recalled being inebriated and laying down at a dorm party she and Kavanaugh attended as freshmen at Yale: I remember a penis being in front of my face. I knew that’s not what I wanted, even in that state of mind. [She recalled remarking,] “That’s not a real penis,” [while the other students laughed at her and taunted her, one encouraging her to “kiss it.” Ramirez suddenly realized it was real and pushed the person away, touching it in the process.] I wasn’t going to touch a penis until I was married. I was embarrassed and ashamed and humiliated. Brett was laughing. I can still see his face, and his hips coming forward, like when you pull up your pants. Somebody yelled down the hall, “Brett Kavanaugh just put his penis in Debbie’s face” … I remember hearing and being mortified that this was out there.
Perjury:
All six of the right-wing Justices on the Court lied to Congress about their opinion on Roe v. Wade, the landmark 1973 case that guaranteed women the right to an abortion, repeatedly calling it a “precedent” that was “settled” and declaring they had no personal views on the issue. These same Justices made their views on abortion rights perfectly clear when they repealed Roe with the 6–3 2023 Dobbs v. Jackson Women’s Health Organization ruling. The majority opinion in the case, written by Alito, cites an amicus brief written by the anti-abortion, pseudoscience group Liberty Counsel, whose leaders were caught on a hot mic in 2022 admitting they held “prayer sessions” with Alito and Thomas inside the Supreme Court building. Evangelical Rob Schenk, the founder of Liberty Counsel’s predecessor organization, Faith to Action, said the sessions were intended to provide “spiritual conditioning” for the right-wing Justices so they could be confident “there was divine support for very strong and unapologetic opinions from them.”
Kavanaugh lied repeatedly during his confirmation hearings, not just for the Supreme Court but also for his earlier seat on the U.S. Court of Appeals for the D.C. Circuit, regarding the nature of his work for the George W. Bush administration. That work included providing legal justification for the patently illegal torture regime of the Bush administration.
Cults:
To this day, Justice Amy Coney Barrett is a member of a South-Bend, Indiana-based cult called People of Praise. The group was founded by Paul DeCelles and Kevin Ranaghan during the 1970s as part of the Charismatic Movement. PoP members speak in tongues, believe in prophecy, and utilize “faith healing.” The group’s organizing principle comes from St. Paul’s stipulation in the Bible that a husband is the “head” of his wife and that the wife is to “submit in all things.” Ex-POP member Adrian Reimers explained it as follows: “The wife, as a good member of the community, has a prima facie obligation to obey her husband as the bearer of God’s will. In practice, this means that the two do not — indeed, cannot — relate as equals. His will reveals God’s to her, whereas her will is merely human. The two cannot meet as equals, because the husband always has divine authority on his side.” Members tithe 10% of their income to People of Praise leaders and must hand over the deeds to their homes. The group welcomes all Christians (but is mostly made up of Catholics) and claims 1,700 followers. Here are the stories of women who escaped the cult after enduring rape, violence, and other aberrant behavior:
· Cynthia Carnick: In 1993, Cynthia Carnick escaped People of Praise and moved on, but her husband John remained a member of the cult. Carnick filed a lawsuit to prevent him from bringing their five minor children into the home of People of Praise founder Kevin Ranaghan. In a sworn affidavit, Carnick stated she had witnessed Dorothy Ranaghan (Kevin’s wife) tie the arms and legs of two of the Ranaghans’ daughters — who were three and five at the time — to a crib with a necktie. She also said the Ranaghans practiced “sexual displays” in front of their children and other adults, such as Dorothy Ranaghan “rocking” on top of Kevin in the TV room with clothes on.
· Colette Humphrey: Humphrey filed an affidavit supporting the claims of Cynthia Carnick in which she wrote of her People of Praise experience from 1973–1978: When I was part of the People of Praise I was in full life submission to Kevin Ranaghan, under full obedience to him and he exercised this authority over most areas of my life. For example, we were ‘in common’ financially, which meant that I had to hand over my paycheck to [him] and he would decide on how that paycheck would be used. Kevin Ranaghan controlled my dating relationships, deciding who and when I should date.
· Susan Reynolds: Reynolds said in a sworn statement that while she was a member of People of Praise she was told that Kevin Ranaghan routinely showered with his two daughters, age 10 and 11 years old at the time. After confronting Dorothy Ranaghan about this behavior, Reynolds was told that Kevin “decided to quit showering with them.”
· Sarah (Mitchell) Kuehl: A member of the Minneapolis branch of People of Praise and its precursor group, Servants of the Light (the two groups merged in 1984), Kuehl was molested in the 1980s by a single man, Gary McAlpin, who lived in her household. [Single men being placed in outside family homes until they are wed is a common practice in the cult.] The abuse started when Kuehl was four years old and lasted two years. Sarah was not McAlpin’s only victim. She informed her parents about the abuse and they told People of Praise leaders. But McAlpin was simply moved to another household, and even had a marriage “arranged” for him. He continued to participate in group activities without interruption. Kuehl was forced to file a civil lawsuit against McAlpin at the age of 17, and he underwent a psychological assessment that recommended he be treated for pedophilia. He fled the community at that point to avoid treatment.
· Coral Anika Theill: Theill joined a branch of People of Praise in Corvallis, Oregon in 1979 when she was a 24 year-old mother of 6 month-old twins. She recalls: My abusive husband, Marty Warner, and the People of Praise Community [cult] leaders in Corvallis, Oregon, used coercive control, isolation and intimidation tactics to strip me of my personhood, safety and freedoms as a United States citizen. I had learned as a child that if I didn’t do as I was told, my personal safety would be endangered. My experience in the People of Praise [cult] reinforced these experiences — isolation and emotional and mental pain would follow any questioning of others’ motives, power and control of me.
Theill was told to confide her innermost thoughts and emotions to another female member of the group serving as a “handmaid.” The handmaid, in turn, would report these details to the group’s male leaders, who would then give Theill’s husband “corrections” for her. Finally, “There’d be open meetings where you just have to stand for the group and they’d tell you all that was wrong with you.” Her husband would attend gynecological appointments with her so she could not obtain birth control. In a 20-year marriage, she had 11 pregnancies and 8 children. “I was basically treated like a brood mare,” she said. “I was required to submit to my husband’s demands for sex at any time — even immediately after giving birth. My husband could rape me whenever he wanted.” When Theill sought safety and a divorce in family courts in Oregon, she lost custody of her 8 children. “One day you wake up to discover that the children you love and cherish and have been aching for have grown up, been told for years that you abandoned them and taught to hate you.” Theill has lived under a “state address protection program” from her ex-husband, Marty Warner, Independence, Oregon, since 1999.
· Katie Logan: In 2001, Logan was 17 and had just graduated a high school run by the Minneapolis, Minnesota branch of People of Praise when she was sexually assaulted by Dave Beskar, 35, a popular teacher and girls’ basketball coach. Beskar unexpectedly dropped by her house when her parents were away “to use the computer” when it happened. She reported the incident to the school’s dean five years after it happened. But no disciplinary action was taken against Beskar. He remained at the school until 2011 and had no problem finding gainful employment after that. “People of Praise leaders failed me,” says Logan.
· Rebecca Grundhofer: Grundhofer was molested by an older boy as a child when their families lived together in the Minneapolis, Minnesota branch of Servants of Light/People of Praise.
Barrett lived in Kevin Ranaghan’s household when she was a law student at Notre Dame. Not surprisingly, she lied by omission by failing to mention her membership in People of Praise in any of the Congressional questionnaires she filled out as a Supreme Court nominee. For their part, People of Praise scrubbed every single mention of Barrett off their website after she was nominated to the Court. Regrettably, Senate Democrats were too cowardly to ask Barrett a single question about the PoP cult at her confirmation hearing — an incredible disservice to the cult’s many victims.
Corruption:
ProPublica has discovered that Clarence Thomas “received decades of unreported gifts from Dallas real estate billionaire Harlan Crow. Crow took Thomas on private jet flights and yacht cruises around the world, paid private school tuition for the justice’s grandnephew and paid Thomas money in an undisclosed real estate deal.” Supreme Court Justices are required to file annual financial disclosures reporting any gifts valued at more than $415 that they or their immediate families receive. Thomas never reported any of the millions of dollars of gifts given to him by Crow (just one of the luxury trips Crow took Thomas on, to Indonesia in 2019, was valued at $500,0000). Crow, who has a curious affinity for dictators on the right and left, still refuses to provide Congress with a full list of his gifts to Thomas.
Crow has a collection of Hitler’s paintings, a signed copy of “Mein Kampf,” and an affinity for many other past dictators (on both the left and right).
All six right-wing Justices on the Supreme Court were originally on a shortlist of prospective nominees that the Federalist Society provided to Republican administrations. Leonard Leo, the co-chairman of the Federalist Society board of directors, joined Crow and Thomas on at least one of their luxury trips. Additionally, in 2008, Leo helped organize a luxury trip to Alaska for Alito paid for by hedge fund billionaire Paul Singer. The round-trip airfare alone (to the remote area of Alaska the group fished at) would have cost Alito more than $200,000. In the years since, Singer has had business come before the Supreme Court ten times. Alito never disclosed these gifts and has refused to recuse himself when Singer’s cases come before the Court. The Senate Judiciary Committee has asked Leo for a full accounting of his financial gifts to Thomas and other Supreme Court Justices.
Thomas also attended at least two fundraising summits organized by the right-wing Koch brothers, who have had several cases before the Supreme Court. These events were organized by the Koch network, “an overlapping set of nonprofits perhaps best known for its work helping cultivate the Tea Party movement in the Obama years.” Donors typically must give the Koch network at least $100,000 per year to be invited to a summit. Former network employees say Leonard Leo was the one who arranged for Thomas to attend the retreats. During one of them, Thomas gave a talk to the donors with Leo in interview format. During another, Thomas spoke to donors at a private dinner. According to five people who attended the summits, “Thomas and the Kochs developed a bond over their years at the retreat [and] discussed politics, business and their families. They often sat together at meals and sat up talking at night at the lodge.” Not surprisingly, Thomas never reported these trips on his annual financial disclosure forms, nor has he recused himself when the Koch brothers’ business has come before the Court.
Violent Insurrection:
Clarence Thomas’ wife, Ginni Thomas, actively supported Donald Trump’s violent coup attempt on January 6, 2021. She was in touch with Trump chief of staff Mark Meadows regarding the effort to overturn the election results, and even contacted 27 Arizona lawmakers asking them to them to change the election results there in violation of state law. In September 2022, she told a congressional committee investigating the January 6 coup attempt that she still believes Joe Biden stole the presidency from Donald Trump.
