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Justice Breyer’s Dissent on Bruen is a Mathematical Shitshow
Two lies per page has to be a new Supreme Court record
On June 23rd 2022 the Supreme Court of the United States issued the Bruen decision, overturning New York State’s “may-issue” concealed carry permit law. The New York law effectively made it so only rich and powerful people could get a carry permit, which provided the legal basis for their systemically racist stop and frisk policy. The way in which the court overturned that law is going to be a legal bombshell felt by California as much as New York, is going to turn the Ninth Circuit into a revolutionary war zone, and is going to cause a tremendous wailing and gnashing of teeth across the country, along with a thousand angry ideological articles on both sides. I’ll leave the legal breakdowns to The Volokh Conspiracy, the ideological arguments to the right and left wing blogospheres, and I’ll narrow my contribution for the time being to say and show this:
Breyer’s dissent is a dishonest mathematics shitshow of such scope and scale it almost defies the imagination.
Let’s go through as much as we can in a newsletter.
Breyer starts by dishonestly conflating suicides with homicides, dishonestly adopting a definition of “mass shooting” that is not what Americans understand them to be, and dishonestly misattributing the rise in gun deaths among suicidal high schoolers and older urban teenagers to gun proliferation instead of how the lockdowns damaged youth mental health and increased crime. That’s a hell of an opening paragraph.
Most gun restrictions have been historically justified by the idea that the government has a compelling interest in the law which overrides individual rights, and the implication is almost always that the gun law will save lives. This decision throws that entire line of reasoning out the window when it nukes strict and intermediate scrutiny and replaces that test with what amounts to a “history and tradition” test mitigated by a “common use” caveat, and the decision will have far reaching ramifications because of that. Breyer is mainly railing against that here, but his mathematical failure undermines his position because it adopts anti-gun propaganda as fact without realizing that no, in fact most of these laws do not save lives, and wouldn’t even survive if his choice of scrutiny was honestly and scientifically applied. Then he bombards us with a wall of bad references and rhetorical tricks that have nothing to do with New York concealed carry.
The problem with this dissent is that such an evidentiary record, where it built honestly, would not support upholding most of these laws anyway. And if this particular concealed carry law had been thrown out by the Second Circuit based on an honest look at that evidentiary record, as it should have been, then perhaps the Supreme Court never would have had to do anything about Bruen and his side wouldn’t be in the pickle it is now. The Bruen ruling today is the chickens coming home to roost for judges who claim to want to rule on laws based on an evidentiary record that is a house of cards built on a stack of cooked books.
All of these things are true, none of these things is inherently bad, and all of these things are exactly why comparisons to other countries literally don’t matter, unless the Supreme Court has some grand scheme to magically evaporate 400 million firearms.
Again here he plays the thoroughly dishonest trick of conflating suicides with homicides in the numbers when he compares firearm ownership rate with death rate. He does this because there’s no bivariate correlation between gun homicide rate and gun ownership rate. He’s lying just like Vox lies, and at this point he’s done it twice in the first three pages of the dissent.
Here he starts with the incredibly dishonest trick of picking 2015 as his starting point, when 2015 exhibited the lowest overall homicide rate the United States had seen since the middle 1950s. Even the lockdown/protest spike in gun homicides in 2020 was still well below the homicide rate we saw continuously in the United States from 1970 to the late 1990s. Then he moves on to the “ZOMG Car Crashes” comparison without mentioning that the rate of car crash deaths has plummeted. A more accurate way to phrase this would be that the combination of school closures, lockdowns, and Floyd related lawlessness in 2020 spiked the youth gun death rate from both suicides and homicides to match the youth motor vehicle death rate from 2008. Clearly accuracy and honesty are not the intent of the three judges who voted ‘no.’
This is all absolutely true, and is directly related to the differential amount of crime in those communities. But pay particular attention to how he lollygags between “gun deaths” and “gun homicides” literally mid paragraph. It’s as if he’s taken a class in propaganda from The Brady-Vox School of Firearm Disinformation.
This beautiful piece of propaganda takes the most shocking shootings on record going back over a decade and superimposes them within two pages of his claim that there were 277 mass shootings this year - a claim that appears three pages back in the dissent and again on this page. Any reader not paying attention would conflate the two, which is why he’s doing it. This is not a legal dissent, this is blatant propaganda. Either Breyer is too stupid to realize he’s been hoodwinked by propaganda, or he is knowingly and willfully entering propaganda into the public record of the Supreme Court. There is no third option here. To really hammer it in, he bookends this claim again with the faked up 277 shootings number after a wall of references that didn’t happen this year.
I’m going to skip the next paragraph, which discusses road rage incidents, on the basis that their road rage data is from www.gunviolencearchive.org, which is widely know to be cooking the books on the mass shooting data.
I’m going to leave the “armed protest” comment alone because I haven’t researched it, other than to mention that on a per gun basis the Richmond 2019 MLK Day protest certainly pushed that rate to near zero when 30,000 or more armed individuals marched peacefully and cleaned up after themselves. I think it stands to reason that women are five times more likely to die in a domestic dispute if their partner is armed, but female victims of domestic violence widely agree that them owning a gun reduces domestic violence. And his suicide study reference is cherry picked and objectively wrong. The rates of overall suicide nationally (not just California) increase with gun ownership in men, but are completely uncorrelated in women.
I’m only six pages into this dissent, have already counted at least twelve statements which bleed the border between blatant propaganda tricks and outright lies, and am banging up on the email limit for a Substack newsletter.
I’m not a Supreme Court scholar. I do not know how often dissents are used to enter intentionally misleading propaganda into the permanent government record. I do not know the base rate of such behavior, whether it’s common, or where this dissent stands in relation to the body of federal caselaw.
But I have to think, I mean I truly must think, that two per page is a pretty high rate.