Just like people who selectively pick and choose Bible verses to support their point, that is exactly what is being done to the Constitution.
If the current Supreme Court can somehow justify telling states they cannot place certain types of restrictions on guns because their possession is a fundamental right provided by the Constitution, how do these same originalists insist that a more fundamental right necessary for the existence of democracy, voting in elections, can be restricted?
If we look at the text of the Constitution, we understand that the framers placed the ultimate authority for regulating both elections and firearms in the hands of Congress, in Article 1, Section 4 and Article 1, Section 8, respectively.
So how, then, can states impose restrictions on those trying to vote, but a state cannot put any onerous burden on an individual trying to apply for a concealed carry permit? Supreme Court Justice Clarence Thomas argues: “The exercise of other constitutional rights does not require individuals to demonstrate to government officials some special need.” Nevertheless, 20 states require a person voting by absentee ballot to demonstrate to government officials that they, in fact, have some special need.
If we are trying not to place a burden on anyone exercising a fundamental right, would it be unreasonable to say that registering to vote is a burdensome step?
Our government is aware of persons born in the United States and assigns each new child a Social Security number. Why not automatically register each person to vote upon turning 18, as other democracies in the world do?
Isn’t what we do when we register to vote the equivalent of a background check for gun owners? The government checks our identification to make sure we live in a specific jurisdiction, we have no felony record, we are old enough, and we are citizens.
And just because I register to vote today does not always mean I get to vote today. It takes time to check the information — shall we call this a waiting period? Yet, it is considered too burdensome in many states for gun purchasers to be subject to universal background checks, a national or state gun registry, or a short waiting period to purchase a gun. Critics proclaim that without voter registration and ID laws, some might try to scam the system and vote when they should not, creating a threat to democracy, but allowing people to purchase guns with an inadequate vetting process is not an equal threat?
In New York State Rifle & Pistol Association v. Bruen, (2022), Justice Thomas writes that when “the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.”
If “historical tradition” is the standard in which the government regulates and/or protects a constitutional right, perhaps we should reinstate some other norms the framers accepted when the Constitution was written and ratified.
Thomas continues: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”
When the Constitution was adopted, noncitizen immigrants were allowed to vote (as long as they were white and male). Would that practice be considered “deeply rooted” in U.S. tradition? And on that deeply rooted tradition, should we change our current laws and permit noncitizens to vote?
In D.C. v. Heller (2008) and McDonald v. Chicago (2010), the Supreme Court set national firearms policy, telling the states the incorporation of the Second Amendment precludes them from making certain firearm restrictions that place too much of a burden on the applicant.