Supreme Court Waking Up To Its Bruen Hangover, Rules Domestic Abusers Probably Shouldn't Have Guns
Clarence Thomas is the only one who really believes his own Second Amendment precedent.
Have you ever been in a bar with your buddies and agreed to something entirely insane only to regret it in the morning? And then you have that one friend who, for whatever reason, remains completely amped for that plan long after everyone else sobers up? The plan was rewriting the Second Amendment into an unfettered right to carry assault rifles into stadiums and Clarence Thomas is the one friend that the rest of the conservatives are ignoring this morning in the Rahimi opinion.
Two years ago, Thomas cobbled together a vibes-based observations to recognize a largely unfettered right to guns. Bruen fulfilled the promise of Heller, fully jettisoning the text and original meaning of the Second Amendment in favor of an ahistorical jumble of vague appeals to an unenumerated “self-defense” right. It didn’t take long for courts to decide that the Framers didn’t really care about men beating their wives, so how can domestic violence laws bar abusers from carrying guns? The Fifth Circuit followed up with Rahimi, ruling that a human Grand Theft Auto character with a court order he agreed to in a domestic abuse case barring him from having guns offended the deeply historical right that Thomas recognized for the first time in the country’s history in 2022.
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Letting violent thugs arm themselves unchecked is the natural and logical consequence of Bruen that most of the conservative majority couldn’t quite abide. But Thomas is still out there. Like that scene in Old School where Will Ferrell decides everyone’s going streaking and it’s only him.
After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U.S.C. §922(g)(8). Therefore, I respectfully dissent.
And Thomas is absolutely correct to the extent Bruen, by its terms, cannot countenance today’s ruling. Historically, the Framers of the Second Amendment understood many, many restrictions on gun rights in the interest of public safety — a cavalcade of these contemporaneous laws and statements are helpfully gathered in the Heller dissent. But if you begin from the premise that these inconvenient facts don’t exist… then there’s no reason why merely being a violent maniac should keep guns out of someone’s hands.
Chief Justice Roberts made himself a bracing glass of tomato juice and tried to deal with the mess the Court made in Bruen.
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Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.
Quite true! Those same laws could’ve been cited to uphold New York’s effort to keep guns out of subways, but we digress. That was then and this is now and consistency is the hobgoblin of good faith actors, so the history suddenly matters again. With that out of the way, Roberts gets to the task of explaining how the Thomas dissent just doesn’t understand the holding in Bruen.
Which Thomas wrote.
Recognizing that Bruen might be too crazy for the Court to live with, Judge James Ho wrote a separate concurrence below to help his former boss Thomas by citing more recent precedent for extending the Second Amendment to disfavored groups. Unfortunately for Ho, he apparently never bothered to read these opinions because they all conclude “obviously it would be stupid to think everyone gets to have guns.” Notably, the dissent did not feel the need to cite the cases Ho found.
But the majority still took some time to duly clown Ho.
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Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922(g)(8) might raise constitutional concerns. See 61 F. 4th, at 459; id., at 465–467 (Ho, J., concurring). That error left the panel slaying a straw man.
Thus begins the long, winding path that the Court will take over the coming years as it tries — bleary eyed and exhausted — to square the maximalist approach in Bruen with the reality that handing every goon a bump-stock enabled rifle to menace his ex-wife is not, in fact, the will of the Framers.
And Clarence will, fittingly, keep ordering more shots.
Earlier: Gun Ruling Proves Supreme Court Just Coasting On Vibes At This Point
Judge Ho Apparently Didn’t Bother To Read The Cases He Cited In Domestic Abuser Gun Opinion
Court Rules That Since The Framers Didn’t Care Much About Domestic Abuse, Abusers Get To Have All The Guns They Want!
