Will Baude

The court clearly wanted to strike this down.

I think – so it sounded to me like the justices were struggling because they want at least three things out of Second Amendment doctrine and I'm not sure they can have them all.

One is they want like a real history test.

Like Justice Kavanaugh kept saying, Justice Kavanaugh got annoyed with the SG for bringing up pretext.

Like, why can't it just be a straight history test?

It's just, is there a historical tradition for this regulation?

No, case closed, right?

They also want something that's like the First Amendment.

There are a lot of First Amendment analogies, right?

So the court has a case where they said if you want to receive certain kinds of, I think it was communist speech or something, you have to like send a postcard saying, I would like it.

You have to opt in.

The court struck that down.

So they said, look, analogize the First Amendment.

Hawaii is treating the Second Amendment worse than how we treat the First Amendment.

So they also want something that's like First Amendment-like.

And they seem to want something where they don't have to think about the purpose of the law or any kind of balancing at all.

Like they said in Bruin, no balancing, no sort of means and scrutiny.

And I think it's actually very hard to have all three of those things, like a historical test, a test that's the same as the First Amendment, and a no-purpose test, at least in part because historically purpose mattered.

And under the First Amendment, the purpose matters.

And the First Amendment is not very historical.