Supreme Court Backs Off on Gun-Rights Absolutism

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Photo: Al Drago/Bloomberg/Getty Images

The facts of the case in United States v. Rahimi are a rather horrifying example of the evils of Second Amendment absolutism, the idea that absolutely everyone should be able to pack heat and even stockpile weapons regardless of the danger they pose to other people. A Texas man richly earned (and did not contest) a judicial restraining order after he attacked and serially threatened a domestic partner. Under a federal law that has been in place for 30 years, the order meant he could no longer possess firearms. He instead possessed multiple firearms, may have used them in multiple crimes of violence, continued to threaten his former domestic partner, and ultimately challenged the law under which he was convicted as a violation of his Second Amendment rights. By an 8-1 majority, the Supreme Court rejected this claim, but not without a shocking degree of reluctance and backpedaling.

Under the Supreme Court precedents in place until 2022, which generally provided for a balancing of gun rights with public-safety concerns, the challenge would have been dismissed instantly. But in New York State Rifle and Pistol Association v. Bruen, handed down the day before the Supreme Court ran amok over abortion rights in its reversal of Roe v. Wade, the Court’s conservative majority moved to a new “originalist” standard whereby any gun laws have to be justified as in accord with the nation’s “historical tradition of firearms regulation.” Rahimi basically tested whether there is a limit at all to this breathtaking rejection of common sense in firearms cases. Tellingly, the author of the majority opinion in Bruen, Justice Clarence Thomas, couldn’t find anything exactly like a ban on firearms possession by violent spouse-beating thugs in America’s early history and argued the statute should fall. But the other eight justices shrank from this scandalous position.

Unsurprisingly, the Court’s three liberal justices wrote concurrences pointing out that the case reflected the dubious reasoning and unworkable standards set out by Bruen. The majority opinion by Chief Justice John Roberts concluded that the federal law in question met the Bruen test via rough parallels in past firearms regulations. Aside from Thomas, the other conservative justices agreed, but three (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) wrote concurrences that made it clear they would not tolerate any further backsliding on gun rights, essentially arguing that the Rahimi situation was the exception that proved the general rule that the Second Amendment reigns supreme in the constitutional scheme. Gorsuch bashed the pre-Bruen tests of gun regulations as a usurpation of the Constitution. Kavanaugh restated the basic case for originalism. And Barrett made it clear no “historical traditions” after the pre-constitutional founding era could justify restrictions on the Second Amendment.

So while the finding in Rahimi should be welcomed as good news for domestic-violence victims and as an indication this Court (other than Justice Thomas) won’t embrace the most radically absolutist views of the Second Amendment, it’s only worth two cheers. Victims of gun violence and their advocates will continue to face a hostile federal judiciary that will look far and wide for excuses to side with their tormentors.

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