Actual historians quickly pointed out the flaws in Thomas's law office history, pointing out numerous precedents for the New York law in question. As Fordham's Saul Cornell explained, "a host of localities had enacted similar laws starting in the 1870s," almost immediately following ratification of the Fourteenth Amendment, which should have provided ample historical support for the New York statute. Thomas actually acknowledged in a footnote that he based his analysis only "on the historical record compiled by the parties," rather than original research, which allowed him to scan the briefs and "pick out his friends," as Chief Justice John Roberts once described judges' selective use of evidence…
Reeves was at a loss. "Historical consensus on this issue is elusive," he said, and "this Court is not a trained historian." In an unusually sharp critique of the Supreme Court, he added that the justices "distinguished as they may be, are not trained historians."…
Under Bruen, a silent historical record disables the courts and law enforcement from protecting the population from mayhem. Ghost guns, armed felons and domestic abusers may be shielded by the Constitution in ways that vulnerable school children are not.
Many observers have characterized Thomas's approach as cherry picking, but that is too generous. Cherry picking, after all, at least yields something worth having. Bruen's holding, in contrast, just leaves a dangerous mess...
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