All Fools’ Day

April 1, 2025

Reason has two excellent pieces on the takeaways from Bondi v. VanDerStok. Today’s is an excellent survey of the judicial cowardice of the Court’s “Salerno rule” by professor Josh Blackman, a Defense Distributed attorney.

The Salerno rule was how Judge Sutton of the Sixth Circuit saved Obamacare’s individual mandate back in 2011. It featured in Justice Breyer’s dissent in McDonald as his preferred method to deny gun rights in the name of safety. “The Court may have overruled Chevron, but it has just inadvertently created a far more powerful deference doctrine with Salerno, all in service of narrowly reversing the Fifth Circuit.” Thus Blackman.

Journalists point out this was a 7-2 decision, but if you read Alito closely he’s not disagreeing with the result. The Supreme Court is 8-1 against DIY guns. Gorsuch expects the plaintiffs and the public to swallow this nonsense “artifact noun” discussion, and to accept his glib assessment that we were unprepared to properly challenge the Biden ghost gun rule. I refuse.

Court decisions are also artifacts made by all-too-human hands. In my judgment, the Supreme Court was the only party ill-prepared to make its case. See the metadata in Gorsuch’s “I know it when I see it” Polymer80 photos:

You think any Gorsuch clerks might have the initials ELP? It will be a fools’ errand cleaning that off the Internet.

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