You probably saw that a federal judge has just blocked the new state law raising the age for all gun purchases to 21. I wish I could say I was shocked or even surprised by the ruling, but that would be to deny the reality of the maddening times in which we live.
Passing gun safety laws has always been difficult. But in the face of a gun-violence epidemic, when mass shootings seem to be an every-day occurrence, our right-wing, Trump-McConnell-delivered Supreme Court has been doing all it can to make passing any beneficial gun laws that much harder.
The ruling blocking the age requirement is officially a temporary injunction — in force only until the full case brought by the vile cranks at Rocky Mountain Gun Owners (RMGO) can be heard and resolved — but U.S. District Judge Philip Brimmer made it pretty clear he thinks that the law is, well, toast.
The age requirement was one of five gun-safety laws the state legislature passed in the last session, with the memory of the Club Q massacre in Colorado Springs all too fresh. The other four laws are still standing, for the moment. And the legislature was expected to take up a possible assault weapon ban next year. Who knows what happens next?
We do know the Rocky Mountain Gun Owners — a group that has managed over the years to make the NRA look progressive — will be back. This may be the RMGO’s biggest moment since the historic 2013 legislative recalls when two Democratic lawmakers lost their jobs after helping to pass major gun-safety legislation. That was a time, of course, when Republicans still had some small amount of political juice in the state.
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If you think blocking the law is an outrage, you may not be alone. According to a Quinnipiac poll last year, nearly 3 in 4 Americans believe you should be at least 21 before you’re able to legally purchase any gun. That’s what can happen when enough disturbed young men shoot up way too many schools.
But it may be even more outrageous than you think, and not only because there is apparently very little, and maybe nothing, that you or I or Gov. Jared Polis or the Colorado legislature or 3 in 4 Americans can do about it.
What’s truly outrageous is the, uh, reasoning behind the ruling.
I’m not entirely blaming Judge Brimmer, although another judge might have ruled differently. Where the blame squarely belongs is with the Supremes and particularly with Justice Clarence Thomas’ majority opinion in a case last year called New York State Rifle & Pistol Assn. v. Bruen.
That case involved a 106-year-old New York law on concealed carry, which the court overturned. That would have been bad enough. But in deciding the case, Thomas wrote that gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” in order to pass muster with the Second Amendment.
And, yes, I’ll bet you caught it, too. It seems that 106 years of history and tradition, as in the New York law, were not sufficient. Just as, on another issue, 50 years of history and tradition weren’t enough to save Roe v. Wade.
No, you have to go back, back, back. Way back. In arguing for the age-requirement law, Colorado had to invoke 18th-century law and traditions. For the state, which didn’t exist in the 18th century, to prevail, the judge ruled it had to show there were laws and traditions at the time that would allow a modern-day government to raise the age of purchasing a rifle from 18 to 21. But, sadly, neither Alexander Hamilton or James Madison ever got around to writing about that issue. They were struggling, if memory serves, about what to do about, say, slavery.
In other words, Thomas went all originalism in his ruling, which was joined by the other five conservatives on the court. And in doing so, Thomas decided that judges must now be historians. But as several judges have pointed out since, there is no “standard” history. Just ask any historian. In some places — like, I don’t know, maybe Ron DeSantis’ state of Florida? — a state board of education can require middle school students to be taught that some “slaves developed skills which, in some instances, could be applied for their personal benefit.”
Is that the kind of history a judge should rely on? Is that any kind of history at all? For that matter, what about the history of technology? That history doesn’t seem to matter much, either. For example, in the 18th century, if you were a really proficient marksman, you might get off as many as two shots over the course of a minute. Should that be the standard for determining whether we should be using AR-15s today?
It’s safe to say that not all judges are happy about the ruling, or about their roles as would-be historians. According to an article published by the liberal-leaning Brennan Center for Justice, judges appointed by presidents from Reagan to Biden have criticized Thomas’ decision.
The Brennan Center article quoted Judge Robert Miller Jr., a Reagan appointee, who said he hoped he had “misunderstood” the Bruen ruling because “most of the body of law Congress has passed to protect both public safety and the right to bear arms might as well be unconstitutional.”
That all makes sense. And so does this from Judge Aleta Arthur Trauger, a Clinton appointee, who says the ruling “seems to rely on the assumption that the past was little more than a differently-dressed version of the present, ripe for easy one-to-one comparisons without regard for deep changes in political structure, unspoken institutional arrangements, or language.”
Back in the day, as you may recall, many people didn’t have the right to bear any arms — say, slaves and even freed Blacks and also Native Americans. Since the Bruen case, there have been rulings on whether it’s constitutional for a state to deny guns to a domestic abuser. In the 18th century, a wife had no legal standing to accuse her husband of abusing her. There has been a ruling on guns and the need for legible serial numbers. I’m thinking guns had no serial numbers in 1791.
Should we go on?
There’s definitely historical irony here. In 2008, the Supreme Court changed everything about gun law with its monumental District of Columbia vs. Heller ruling, which said the Second Amendment guaranteed the individual right to possess a gun. That has long been the holy grail for the NRA and the gun-rights movement. Before Heller, courts had ruled the Second Amendment was about, you know, guns and militias.
But that particular history and tradition had no impact on deciding Heller, which led, once the court was packed with conservatives, to the point where Thomas, in between all-expenses-paid vacations, would make his ruling that we should decide 21st-century issues based on 18th-century life.
It doesn’t matter that the Second Amendment was written with ink on a scroll or that today you can not only reproduce Judge Brimmer’s ruling on a laser printer, you can make so-called ghost guns on a 3-D version.
As you may remember, the legislature banned those copier-made guns in one of the five gun bills it passed this year. You might now rightly wonder whether that law has a ghost of a chance of surviving.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
