Supreme Court’s originalism making America unsafe

WASHINGTON >> When the Supreme Court ruled in 2008 that the Second Amendment protects individuals’ right to gun ownership, it emphasized the ability “of law-abiding, responsible citizens to use arms in defense of hearth and home.” When it expanded that decision last year in New York State Rifle & Pistol Association v. Bruen, the court noted that “ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.”

Zackey Rahimi was, one presumes, not the kind of upstanding citizen the justices had in mind.

Over a six-week stretch from December 2020 to January 2021, Rahimi took part in five shootings around Arlington, Tex. He fired an AR-15 into the home of a man to whom he had sold Percocet. The next day, after a car accident, he pulled out a handgun, shot at the other driver and sped off — only to return, fire a different gun and flee again. Rahimi shot at a police car. When a friend’s credit card was declined at a fast-food restaurant, he fired several rounds into the air.

Or, as the U.S. Court of Appeals for the Fifth Circuit put it in vacating Rahimi’s conviction for illegal gun possession, “Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal.”

This is the insane state of Second Amendment law in the chaotic aftermath of Bruen. The problem isn’t that decision’s precise outcome, striking down New York state’s gun licensing law because it required a showing of “special need for self-protection” to obtain a concealed carry permit.

The problem is that in doing so, the six-justice conservative majority imposed a history-based test — a straitjacket, really — for assessing the constitutionality of gun laws. No longer can judges decide whether restrictions are a reasonable means to protect public safety.

Those cases are just making their way to the appellate level, and Thursday’s ruling by the Fifth Circuit is one of the earliest to be decided. The court may be the most conservative — and most dangerous — in the country. The ruling in Rahimi’s case, written by one Trump-appointed judge, Cory T. Wilson, and joined by Trump appointee James C. Ho and Reagan appointee Edith H. Jones, shows why.

When Arlington police searched Rahimi’s home, they found multiple guns — and a domestic violence restraining order imposed after Rahimi allegedly assaulted his ex-girlfriend. Federal law prohibits those subject to such orders from possessing guns, and Rahimi was indicted by a federal grand jury.

Before Bruen, the Fifth Circuit had upheld such charges against constitutional challenge, and it had previously rejected Rahimi’s claim that the law violated his Second Amendment rights. But on Thursday, it did an about-face.

“We know the increased risk women in abusive relationships face when the abuser has a gun, and the Fifth Circuit just essentially greenlighted arming domestic abusers,” Adam Skaggs, vice president of the Giffords Law Center, told me. “As a matter of public safety, this is a horrendous decision.”

Wilson, who was a fervent opponent of gun regulation as a Mississippi state legislator, strained to read the Supreme Court’s language about law-abiding citizens out of the precedents. That was just “shorthand,” he insisted, and “read in context, the Court’s phrasing does not add an implied gloss that constricts the Second Amendment’s reach.”

As to historical analogues, Wilson acknowledged that there were “laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans.”

But, he said, despite some “facial similarities” with laws disarming domestic abusers, “the purpose of these ‘dangerousness’ laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another.”

As Pepperdine law professor Jacob Charles pointed out on Twitter, this criticism is “absolutely bonkers” — it faults the domestic abuse law for being “too tailored.” The law applies to those who have been determined, after a court hearing, to present a “credible threat to the physical safety” of an intimate partner or child.

All of which serves to underscore the real difficulty with the Supreme Court’s history fetish: As Bruen itself demonstrated, the matter of what historical examples to accept and what to reject is open to manipulation by judges predisposed to strike down gun laws.

And it poses a dilemma for the conservative justices, who are about to find this issue back in their laps. Are they going to instruct lower courts they have gone too far, or are they going to let it rip, while bullets fly and judges scour statutes from the age of muskets?