In June of 2022, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen. The case is a major victory for the constitutional right to keep and bear arms. The legal community addressing the Second Amendment have sought to examine a short passage by Justice Thomas, author of the Bruen opinion, to argue in the lower courts that an originalist interpretation requires courts to look at the meaning of the Second Amendment and thus, logically, all provisions of the Bill of Rights with the same underlying logic.

Bruen, for instance, claims that the text of the Second Amendment plainly covers the right to carry arms in public. It also holds that “to the extent later history contradicts what the text says, the text controls.” This short passage is key. It hold significance for all provisions of the Bill of Rights, since the Bruen Court’s adoption of the view of then-Judge Kavanaugh in a D.C. Circuit Second Amendment case requires that “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” An originalist interpretation of a text is its so-called founding era understanding.

By extension, Bruen’s founding-era understanding requires the Supreme Court to hold that provisions of the Bill of Rights have only a single meaning, whether applied against the federal government or against the states. That meaning is fixed at the time of adoption; that is, in 1791. Since the Bill of Rights contains the First Amendment, the provisions for the right to assemble fall within the ambit of Bruen’s logic for interpretation, indicating that none of the contemporary laws banning strikes by workers in rank and file assemblies are justifiable under the clause’s single meaning from 1791.

Bruen’s founding-era understanding, therefore, contains significance for the class struggle. It could be that the extension of Bruen’s founding-era understanding binds the Supreme Court to upholding the First Amendment’s right to assemble, obliterating the State or Federal laws municipal or district judges cite in granting injunctions against strikes.

But even the pre-Bruen legal strategy is significant, however. Many large legal foundations promoted the view of Bruen’s founding-era understanding prior to the Supreme Court of the United States of America’s opinion. The large legal foundations probed different districts, especially in California, for the opportunity to declare the State’s law unconstitutional. As a result, the large legal foundations filed similar, if not identical, challenges to the constitutionality of several of California’s gun laws. In at least one of the districts, the large legal foundation struck a goldmine, winning before a single judge in filing after filing. In one such filing, the large legal foundation managed to win not only before the district court judge but at the first pass before a panel of three justices at the United States Court of Appeals, Ninth Circuit. This significant pre-Bruen’ legal strategy may be a way for socialists, advocates for the right to assemble, or lawyers who have a profound appreciation for the class struggle to precipitate a legal showdown in the Supreme Court.

Socialists, advocates for the right to assemble, or lawyers who have a profound appreciation for the class struggle may form a coalition. It may adopt a pre-Bruen legal strategy with respect to injunctions or temporary restraining orders seeking to enjoin workers from their right to assemble. The coalition may survey the lay of the land for the sake of selecting the time, place, or manner for raising the issue of an injunction. In areas where the coalition expects a judge to rule in favor of an injunction, the coalition may predictably increase its organization of workers so as to induce employers to file an injunction at their demise, raising the coalition’s profile significantly, and providing positive support for the application of Bruen’s founding-era understanding to the First Amendment.

There are many examples of judges who uphold the right to assemble. On April 10th, 2023, for instance, a Washtenaw County Circuit Court Judge, named Carol Kuhnke, denied an injunction the University of Michigan (U-M) sought to impose upon 1,300 striking graduate workers. It would be worthwhile for that coalition to examine the underlying logic of her opinion.

In the areas where the coalition expects a judge to rule in favor of the imposition of injunction or a temporary restraining order, the coalition may like to intervene with citations to Bruen in its moving papers . If the Court, nonetheless, succeeds in granting the injunction or temporary restraining order, a judge will, nonetheless, be required to address either explicitly or implicitly the citation, creating a legitimate basis for review on appeal. The ruling may be appealed to the State’s appellate Court or to a United States Court of Appeal. In addressing the legal briefs filed on behalf of workers, either the State’s appellate Court or a United States Court of Appeals would be required to address the application of Bruen’s founding-era understanding to First Amendment, causing a constitutional crisis only the Supreme Court may resolve.

A recent event in Toledo, Ohio, for instance, may be an opportunity to test the application of Bruen’s founding-era understanding against the right to assemble. On Thursday, May 11th, 2023 a judge in Toledo, OH, for instance, granted an injunction against workers striking at Clarios after management falsely accused the workers of being “violent.” The judge’s order says only 5 workers can picket at each entrance, while they have no right to block scabs. But there is no basis for this ruling in a founding-era interpretation.

Since Judge Michael Goulding’s ruling is an attack on the right to strike, Goulding’s ruling is permissible only in so far as it ignores Bruen’s logic. Goulding’s laws therefore rely upon a “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text.” As the logic of Bruen indicates, Goulding’s laws “obviously cannot overcome or alter that text.” None of the laws he cites have anything to do with 1791. “[To] the extent later history contradicts what the text says, the text controls.” Goulding’s imposition of an injection should therefore be subject to a constitutional challenge in the same manner as numerous state laws have been challenged against the underlying logic of Bruen’s.

There is no need to dispense with the term limits that Alexander Hamilton envisioned in his Federalist number 78. It is surely bad behavior to adopt a founding-era understanding of the Second Amendment but refuse to apply that same logic to other amendments, especially the First Amendment. If the Supreme Court refuses to apply the underlying logic of Bruen to strikes and the right to assemble under the First Amendment, then the judges’ refusal may serve as a basis for challenging him or her for lack of “good behavior.”

The working class may petition the government for a redress of a grievance, namely, the right to removes judges who do not exhibit “good behavior” in their rulings. Article III provides a remedy for the elimination of judges. If not, such a grievance may be a legitimate basis upon which to alter or abolish the panel.

The First Amendment is crucial for the class struggle. The establishment of rank-and-file assemblies, through which workers may petition for a transfer of jurisdiction to themselves under Thomas Jefferson’s Declaration of Independence from counties, States, Federal districts, or the nation, as Trotsky advocated all power to the Soviets, does not necessarily preclude the preservation of the Union.

Workers have an unequivocal right to assemble to “alter or abolish” forms of government destructive to its life, liberty, property, or pursuit of happiness but the ability to achieve its result depends upon the strategy or tactics it may adopt in the class struggle. A Bruen litigation strategy for directing the Court to celebrate a founding-era interpretation of the right to assemble empowers workers with the ability to expose those who might seek to advance unconstitutional laws against the class struggle.