It had to happen eventually, I guess, that the Supreme Court would finally stumble upon a gun law that it could manage to uphold.
The path has not been easy.
You had to get a case so obvious that every justice, other than Clarence Thomas, of course, would vote for it. Even Sam Alito ran up the flag on this one. No word on whether he first consulted his wife.
According to people who have done the math, the Supreme Court had sided with the gun-rights lobby on every major gun ruling since — get this — 2008. That’s so long ago that, at the time, only one of our aged major-party presidential candidates had qualified for Medicare.
The ruling that broke the streak upheld federal and state laws — including Colorado’s — that allow the government to take away guns from those under a domestic-violence restraining order.
In other words, the Supreme Court now agrees that if someone is deemed sufficiently dangerous to a domestic partner, it’s probably better if that dangerous person doesn’t have a gun handy.
If that seems like a no-brainer — and I guess it is, if you’re not Justice Thomas — you should remember that it was only last week that the same court overturned a Trump-era ban on bump stocks, the device that basically turns a semiautomatic weapon into a still-illegal, for now anyway, machine gun.
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Thomas wrote the opinion on bump stocks, and the other five conservative justices joined him. That ruling, you may remember, followed the 2017 Las Vegas massacre, in which the killer used bump stocks to fire 1,000 rounds in 11 minutes. And yet, the Supreme Court, in a 6-3 ruling, decided bump stocks should be available at your neighborhood gun store.
So, what I’m saying is, a case had to be really obvious to break the gun-rights streak, which is why I’m not exactly ready to rejoice.
And I’m definitely not ready to give much credit to this right-wing court, which, even on this clear-cut case authored by Chief Justice John Roberts, required 103 pages and five concurring opinions to get to the obvious decision.
In fact, it’s the Supreme Court’s fault that the case ever got this far. In 2022, the court knocked down a 100-year-old New York concealed-weapons law. The ruling in New York State Rifle & Pistol Association v. Bruen, was bad enough. But it wasn’t as problematic as the basis for the ruling, which said any gun law has to be “consistent with the nation’s historical tradition of firearm regulation.”
What the ruling quickly came to mean was that if a judge couldn’t find a precise, word-for-word, 18th-century historical equivalent to a gun law now on the books, that law could be overturned. And so, if the Founders, bless them, weren’t sufficiently prescient to foresee the dangers of upgrading your standard AR-15 and make them illegal, then bump stocks can’t be illegal now.
So much for judicial logic. It’s not a ruling worthy of the Supreme Court, even this one. It’s a Monty Python skit, and we’re all the Black Knight.
And yet, following that, uh, logic, the 5th Circuit Court of Appeals, in the case of the United States v. Rahimi, knocked down the law that took away Zackey Rahimi’s guns.
Rahimi is not exactly a good guy with a gun. He’s a Texas drug dealer who earned his restraining order by allegedly knocking down his girlfriend in a parking lot and, while dragging her to the car, firing a gun at a witness. Rahimi would eventually go to prison for running afoul of a few other laws, including a couple more gun laws.
According to a 5th Circuit panel, though, since the Founders hadn’t gotten around to restraining orders, you can’t take away Rahimi’s guns today.
It’s just possible that back in the 18th century, guns weren’t used in nearly 50% of domestic violence homicides, as they are today. And I could be wrong on this, but back in the 18th century, I’m pretty sure it was legal for a man to rape his wife. In fact, it was legal in many places until the 1970s. So, definitely, we should rely on 18th-century law.
In looking at the case, Chief Justice Roberts saw what nearly everyone else had to see — that the post-Bruen era had gotten out of hand.
“Some courts have misunderstood the methodology of our recent Second Amendment cases,” Roberts wrote. “These precedents were not meant to suggest a law trapped in amber.”
Roberts even went as far to say that the “Second Amendment permits more than just those regulations identical to ones that could be found in 1791.”
How liberal of him. How progressive. How mistaken he was the first time around.
But Thomas, who wrote the Bruen decision, disagreed and rather pointedly.
“The court and government,” Thomas wrote in his dissent “do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence.”
“Affray laws,” he went on to write, “are wide of the mark” when it comes to interpersonal violence.
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I don’t know what affray laws are either. But here’s a link if you’re interested. And what about intrapersonal violence?
The real thing to worry about is what comes next.
If you’re not worried, you should be. Two of the concurrences, from Justices Neil Gorsuch and Brett Kavanaugh, defended the spirit of Bruen.
And the court, in its narrow decision on domestic-violence restraining orders, left the constitutionality of a wide range of gun law yet to be determined. Like assault-rifle bans. And large-capacity magazine bans. And red flag laws. And mandating serial numbers on guns. And the list goes on.
If it takes 16 years to get one major pro-gun-safety ruling from the Supreme Court, the question now is how many people will die from gun-related injuries before we get to the next one.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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