At oral argument Tuesday in United States v. Rahimi, the GOP-controlled Supreme Court confronted a menacing mess of its own making.
That mess is last year’s Bruen decision. It further expanded gun rights and called into question modern laws that judges determine aren’t consistent with the country’s “historical tradition of firearm regulation.” The 6-3 ruling led an appeals court to strike down a law barring gun possession for people under domestic violence orders; the Biden administration appealed to the justices, leading to Tuesday’s argument in Rahimi.
It was there that Justice Ketanji Brown Jackson effectively pointed out how dumb and dangerous that Second Amendment precedent is.
It was there that Justice Ketanji Brown Jackson effectively pointed out how dumb and dangerous that Second Amendment precedent is.
To take one example, the Joe Biden appointee asked what would happen if the court “determined based on the historical record that domestic violence was not considered dangerousness back in the day? I mean, I — I just don’t know what we’d do with that scenario.”
Obviously, Jackson isn’t plotting ways to put guns in the hands of dangerous people. But that question and others from the justice served as an indictment of the ruling her Republican-appointed colleagues handed down last year.
Apparently referring to the recent mass shooting in Lewiston, Maine, Jackson later wondered: But let’s say I’m a legislator today in Maine, for example, and I’m very concerned about what has happened in that community, and my people, the constituents, are asking me to do something.
Do you read Bruen, as step one, being go to the archives and try to determine whether or not there’s some historical analogue for the kinds of legislation that I’m considering? To be sure, the court might decide that the restriction at issue in Rahimi is legal, regardless of whether such a ruling would make sense under Bruen. Even if some of the justices want to further contort the Second Amendment, they might not want to do so against the backdrop of domestic violence. Showing some version of contrived moderation, though, wouldn’t make the justices heroes — rather, as Jackson’s queries indicated, it would emphasize the ridiculousness of the precedent that endangers commonsense regulations. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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