Writer For The Trace Refutes His Own Argument Against Bruen

The Bruen decision changed a lot of things, at least in theory. Some issues remain surrounding Bruen, which I touched on earlier today, but it laid down a particular framework for what gun control laws could be constitutional and which ones couldn't.

This has been lamented by anti-gunners for supposedly trying to put judges in the role of historian, something they're not equipped to do, which I find hilarious considering they're used to researching legal precedent and that's more or less what they're doing when researching historical analogs to gun laws of today.

Regardless, this is the argument.

The Trace's Chip Brownless recently wrote about this for Salon.

On Jan. 29, in a federal courtroom in Mississippi, U.S. District Judge Carlton Reeves delivered a ruling that just a few years ago would have been unthinkable: He found the decades-old federal ban on machine guns unconstitutional.

At the center of the case was a firearm that seemed designed to provoke: an AR-15-style rifle named the “NFA Whore, Whore-16.” It had a switch that allowed its user to select between three modes of fire: “MARY” for safe, “SLUT” for semiautomatic, and “WHORE” for fully automatic machine gun. The defendant was also accused of illegally possessing 20 Glock “switches”—devices that convert pistols to automatic fire—and more than 400 rounds of ammunition.

But Reeves made clear that his decision had little to do with the weapon’s offensive branding or the intensifying public safety threat posed by automatic weapons. He said his hands were tied by the Supreme Court’s landmark 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which upended Second Amendment law. Bruen mandated that modern gun regulations align with historical firearms regulations. Suddenly, judges were less arbiters of modern safety and more reluctant antiquarians, tasked with finding 18^th- or 19^th-century parallels for today’s gun laws.

I'm just going to jump in here to note that judges were never supposed to be arbiters of safety. They were supposed to be arbiters of the law, something they routinely failed to do.

Moving on...

While the Justice Department is appealing Reeves’ ruling, it is among a growing number of decisions striking down gun laws in the post-Bruen era. At least three rulings in the past year have invalidated federal restrictions on machine guns, once considered settled law. Bruen has also imperiled concealed carry laws, assault weapons bans, and a host of other gun restrictions. A Trace analysis of more than 2,000 challenges to gun laws since Bruen found that a case’s outcome now hinges on conflicting interpretations of America’s complex and often uncomfortable past. As judges, lawyers, and historians argue over what history counts and what it means, gun rights groups have capitalized on the confusion—with sweeping consequences for public safety.

So Bruen hinges on a past that's really complicated and not easily understood?

That's funny, because the same day this dropped at Salon, Brownlee had a post at his home site, The Trace. That piece? "A Timeline of American Gun History."

Yes, it's short and sweet, lacking details, but it also makes it clear that the vast majority of gun control laws weren't passed around the same time as the ratification of either the Second Amendment or the 14th Amendment, which is what Bruen requires.

Further, some of the gun control laws that might have remained on the books in states prior to the Second Amendment's ratification were untouched by the Second Amendment because at the time, it was held that the Bill of Rights didn't apply to the states. That's why the 14th Amendment had to incorporate those rights and apply them to the individual states.

In fact, only one law in any state seems to have been passed close to the time of the ratification of either amendment, and that's carry restrictions in Texas and Missouri, passed a handful of years after the ratification of the 14th Amendment.

Maybe it's just me, but unless Brownlee's timeline isn't much of a timeline, then it doesn't seem that there's all that much conflict and contradiction for judges to really look at. He manages to refute his own argument. Well done.

Further, let's talk about those "sweeping consequences for public safety" for a moment.

The Bruen decision dropped in 2022.

In 2023, there was a 10 percent drop in homicides and intentional manslaughters compared to 2022. 2024 saw another 14 percent drop in the murder rate.

So the "sweeping consequences for public safety," at least based on these numbers alone, seem to be a good thing. That means that even if judges were somehow supposed to be arbiters of safety, as Brownless suggested, they should still be upholding Bruen.

On every level, then, Bruen is a good thing and it's not the issue anti-gunners try to present.