Arms, Abusers, and Originalism

Federal law prohibits persons who are subject to domestic violence restraining orders from possessing firearms. (See 18 U.S.C. § 922(g)(8).) Today, the U.S. Supreme Court rejected a facial challenge to this law, 8-1. Only Justice Thomas dissented.

A key issue is how closely a gun-control law must track those in existence at the Founding to be considered consistent with the Second Amendment. Chief Justice Roberts, writing the opinion of the Court, states that the historical analyses of recent cases “were not meant to suggest a law trapped in amber.” Just as the protection of the amendment is not limited to the muskets of 1791, neither are the permissible regulations limited to duplicates of those in force at the time. This touches off an extensive discussion of originalism.

Justices Gorsuch, Kavanaugh, and Barrett wrote concurring opinions on their understanding of what it means to enforce the Constitution that the people actually adopted, in contrast to the Platonic Guardian approach of the 1960s and 1970s, when the Justices largely decided what was good for America in their own opinions and grafted the result onto the Constitution. Justice Jackson thinks the historical approach of recent Second Amendment cases has produced a mess and should be jettisoned.

On the merits, there is no doubt that Rahimi is the kind of person who should be restrained from owning a gun if anyone can be without an actual criminal conviction. He committed multiple acts of violence, including shooting at people.

CJLF does not get involved in the gun control wars. There are lots of other people fighting that battle, and we reserve our ammunition for other battles where we will make more of a difference. We are keenly interested in originalism, however. We have seen how much harm is done by judges with good intentions who substitute their own views for the results of the democratic process on subjects that are indeed within the constitutional authority of the elected branches. (See, e.g., this article.) We will continue arguing for the enforcement of the real Constitution in cases such as Smith v. Arizona. (See this post, earlier today.)