Unbridled ‘originalism’
A federal appeals court ruling last week that people under restraining orders for domestic violence cannot be prohibited from having guns was utterly divorced from reality even if it also was utterly predictable. The U.S. Supreme Court, in setting a standard on gun laws that relies on the trendy right-wing legal theory of constitutional originalism, all but guaranteed that lower courts would begin dismantling reasonable modern laws based on 18th century legal and societal standards. The appeals court’s dangerous ruling is merely the logical result of the high court’s obsession with dragging America’s laws back to a largely imagined past.
The New Orleans-based Fifth U.S. Circuit Court of Appeals ruled that a 30-year-old federal law barring firearms from people under domestic-violence restraining orders is unconstitutional because it’s not the kind of law that would have been envisioned by the framers of the Constitution. By that standard, the court is correct: Women didn’t have the vote or other fundamental citizenship rights in 1787, and spousal abuse wasn’t even recognized as a crime by any U.S. state until the late 1800s. So, no, posing a clear threat to the lives of a man’s wife and kids wasn’t likely to result in confiscation of his front-loading musket.
Even the Fifth Circuit judges, widely considered to be the most conservative in the country, initially upheld the federal law but then reversed themselves in light of last year’s Supreme Court decision in New York State Rifle & Pistol Association v. Bruen. That was the case in which the high court decreed that for a gun law to be constitutional, it must be “consistent with this nation’s historical tradition of firearm regulation.”
That was a huge departure from the Supreme Court’s previous standard for ruling on gun restrictions, which hinged on whether there was a compelling governmental or societal interest in the restrictions. Indeed, the very first words of last week’s appellate ruling virtually acknowledge that this new standard is at odds with such compelling interest: “The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.” That any court decision would require such a disturbing opening caveat is in itself a telling commentary on the high court’s new standard.
The Justice Department is appealing the lower court’s decision, which means the Supreme Court likely will have the final say in this case. We’re hoping the court will take the opportunity to specify that outcomes like the Bruen decision weren’t what it envisioned and that, in fact, there are some modern issues that cannot be adjudicated strictly by the standards of a time when slavery was legal, women were effectively property and firearms were primitive. But the signs aren’t promising.