This article is part of a symposium on the court’s decision in New York State Rifle & Pistol Association v. Bruen.
Saul Cornell is the Paul and Diane Guenther chair in American history at Fordham University and adjunct professor of law at Fordham Law School.
The majority opinion in New York State Rifle & Pistol Association v. Bruen invokes the authority of history but presents a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation such as Bruen. Rather than applying a history, text, and tradition approach, it would be more accurate to characterize Justice Clarence Thomas’ decision as an illustration of the current Supreme Court’s new interpretive model: “Fiction, Fantasy, and Mythology.” Indeed, the distortion of the historical record, misreading of evidence, and dismissal of facts that don’t fit the gun-rights narrative favored by Thomas are genuinely breathtaking in scope. Thomas has taken law-office history to a new low, even for the Supreme Court, a body whose special brand of “law chambers history” has prompted multiple critiques and been a source of amusement for generations of scholars and court watchers.
It is particularly noteworthy that Justice Stephen Breyer called out his colleagues for engaging in the most rank form of law-office history in his dissent. Although it has become common, almost...
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