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The Supreme Court’s gun rights decision deepens the cracks in originalism

The Supreme Court has delivered a verdict that has brought a sigh of relief to much of the country. Domination Last week, 8-1 Federal law from 30 years ago Prohibiting domestic violence suspects from possessing guns while under a restraining order is constitutional under the Second Amendment, the court ruled, overturning a unanimous decision by a lower court of three conservative judges from the 5th Circuit Court of Appeals that had struck down a federal law.

in United States v. RahimiThe majority of the Court continued to uphold a view derived from constitutional principles. Fundamentalism — In this case, current gun control laws should be judged based on whether similar laws existed in the past. Diverse issues As if to loosen up on this doctrine and fundamentalism StraitjacketChief Justice John Roberts wrote that the relevant historical inquiry is “whether the regulation at issue is consistent with the principles underpinning our regulatory tradition.”

Using this principle, Roberts cited “error” in lower courts’ requiring “historical twins” rather than “historical parallels” in decisions striking down domestic violence laws. Roberts added that the framework laid out in the 2022 Bruen decision — a 6-3 decision written by Justice Clarence Thomas that expanded gun rights and designed a history-only standard for evaluating the constitutionality of modern gun laws — “was not intended to suggest law is trapped in amber.”

Justice Sonia Sotomayor, in her concurring opinion, noted that the majority opinion allows for “historical inquiry tailored to reveal something useful and applicable in the present day,” rather than whether the law at issue is an “exact historical analog.” In other words, absolutist fundamentalists often conclude that analogous historical laws are inadmissible because they are not identical to modern laws.

The conservatives of the court Rethinking blind adherence Criticism of fundamentalism was echoed earlier this month by Justice Amy Coney Barrett in her opinion for Thomas. Trademark Litigation “There was a tendency to focus too much on history like a laser and miss the forest for the trees.” Extremism Maybe you’re underdressed Recent revelations He initially failed to muster the five votes to join the Bruen majority opinion.

Concise Rahimi Majority opinion He cited two types of old weapons laws that serve as good historical analogues: “guarantee” laws and “sedition” laws. Surety laws, which date back to the Middle Ages, allowed magistrates to demand a bond from someone “suspected of future misconduct,” and if the suspect committed a misdeed, the bond would be confiscated. Those who did not pay could be jailed. Unauthorized use of firearms was commonly dealt with through surety laws.

Riot laws punish those who possess weapons that “terrorize the people” or who disturb the peace. Thomas, the lone dissenter in Rahimi, rejected both types of laws as insufficient, opining that defenders of domestic violence laws “have not presented a single similar historical regulation that is relevant.”

While the court cited some specific examples of sedition laws, my decade-long study of old gun laws reveals that what are known as brandishing or displaying a weapon laws were actually quite common (as were warrant laws). From the 1600s through the late 1800s, at least Three-quarters of the state There were laws that punished such public displays of weapons. About half of these laws punished people who displayed weapons in public in a threatening manner, but the other half punished people who simply displayed a weapon in public. That is, simply appearing to carry a weapon in public was enough grounds for a lawsuit.

Aside from these two types of laws, I have listed other types of old weapons laws where gun confiscation is a penalty, similar to modern domestic violence laws.

For example, between the 1600s and the early 1900s, at least 35 states imposed penalties on those found illegally carrying concealed weapons by confiscating those weapons. During that same period, at least nine states enacted hunting laws that provided for the confiscation of guns as a punishment for violators (such as hunting on private or restricted land, hunting during restricted hours, or hunting certain protected game). Additionally, archaic weapons laws were enacted to confiscate or seize weapons from vagrants, vagabonds, and those deemed “mentally deranged.”

Looking back at these laws, society today would no doubt balk at the idea that such a vague category as being labeled a vagrant or “vagrant” (and vagueness was characteristic of many of these old laws) would be the basis for defining rights today. dead end Where fundamentalist orthodoxy leads.

And when it comes to old gun laws, the historical facts are that in many ways guns and other weapons More strictly regulated There was more progress in America’s first 300 years than its last 30 years.

Robert J. Spitzer He is Professor Emeritus of Political Science at the State University of New York at Cortland and Adjunct Professor at the College of William and Mary School of Law. He has written six books on gun control, including “The gun dilemma“and”The politics of gun control. “

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