Dem
51
GOP
49
On Friday, the Supreme Court handed down its ruling in U.S. v. Rahimi, a case that challenged the federal government's right to bar domestic abusers from owning guns. With Chief Justice John Roberts writing for the 8-1 majority, the Court said that it was acceptable to do so in cases where the abuser has a restraining order against them. Thus did the Supremes overturn a ruling from the arch-conservative Fifth Circuit, much to the disappointment of Associate Justice Clarence Thomas—who was, unsurprisingly, the "1" in the 8-1.
Lawyer-reader A.R. in Los Angeles sent in a few remarks on the ruling:
It turns out that the Fifth Circuit is too far-right even for this Supreme Court, as SCOTUS overturned the Fifth and upheld the federal law banning gun possession by those with a restraining order against them. In writing for the majority, John Roberts goes to great pains to say that they're not retreating from their position that everything is frozen in time in the 18th and 19th centuries when it comes to the Second Amendment. No need to abandon originalism here because, as luck would have it, there were analogous regulations even two centuries ago to keep guns out of the hands of dangerous people. Whew! The Court can continue its march back in time, while also protecting women from the abusers who would otherwise murder them. Of course, Clarence Thomas wouldn't even do that. His lone dissent insists that because, in colonial times, domestic violence was a "private matter" and such "interpersonal" affairs would never have been regulated, modern attempts to prevent spousal abuse by taking away the abuser's gun violate the Constitution. That's the type of tradition he wants to revive.
This could be why Associate Justice Amy Coney Barrett has been doing some line-drawing in the past week. Even more interesting than the outcome is the conversation Associate Justice Brett Kavanaugh and Barrett seem to be having with their concurrences. If there's such a thing as man-splaining in a Supreme Court concurrence, Kavanaugh's is it. He is essentially giving an exhaustive (and boring) lecture over 24 long pages on originalism and all its nuances and applications, as he sees it. He devotes a lot of ink to his mentor Antonin Scalia, as if invoking Scalia will lend more legitimacy to his musings. Kavanaugh responds to Barrett's criticism of the drift of "history and tradition" to encompass the late 19th century, which, last time I checked, was well after the country's founding. According to him, this "post-ratification" analysis is equally important in illuminating how to ascertain original intent. And anything else, like the strict-scrutiny analysis the court has employed for other rights, is just "policy-making" cloaked as judicial interpretation. I found the whole thing to be dripping with condescension.
Barrett, meanwhile, more fully explained her skepticism about this practice (while only taking 4 pages to do it). One note: don't confuse her careful parsing of the practice as a rejection of originalism. Not at all—she just wants it to be actual originalism and not this fake nonsense that the other conservatives are peddling to get to their desired result. As she notes, "particular gun regulations—even if from the ratification era—do not themselves have the status of constitutional law." And "historical regulations reveal a principle, not a mold."
So, while encouraging, I'm not prepared to say we're at 3-3-3. We'll know more when the Emergency Medical Treatment and Active Labor Act (EMTALA) decision comes out. If Barrett votes with the other women that states can't deny women emergency healthcare, then we may have an interesting shift happening.
Thanks, A.R.!
To this, we will add the political dimension, which is... there isn't one, we think. Democrats can't take ownership of the Rahimi decision because it was accomplished with more Republican-appointee votes (5) than Democratic-appointee votes (3). Republicans can't take ownership because much of their base will be unhappy about anything that trims the Second Amendment. And Republicans can't rail against the decision because it was their justices who made it, and because "on the side of domestic abusers" is not a great place to be.
However, there are some other decisions likely to come down in the next week that are going to be giant hot potatoes, from a political vantage point. The EMTALA case is one of those, while the Trump immunity case is another. Normally, the Court releases opinions on Mondays and Thursdays, so one or both could come down today. Alternatively, they could drop the hottest of hot potatoes, which is the Trump immunity decision, on Thursday. That might deflect some attention, since there will be so much focus on the debate. On the other hand, it might heighten attention, since there would likely be a debate question or two about the decision.
SCOTUS could also wait until next Monday for the Trump decision; that's the last "regular" decision-announcing day before the Court's self-imposed, though occasionally disregarded, deadline of July 1 for releasing decisions. Another possibility is to release it on a non-standard day, like this Friday, which the Court does on rare occasions. We'll note that Samuel Alito has been absent from the Court for the past couple of sessions, leading to conspiratorial thinking that he's dragging his feet so as to keep the Trump decision on hold for as long as he can. If so, then any release date is possible, including something well into July, or even August.
One last thing worth noting. Roberts' decision in this case tried to establish two pretty clear standards. The first was that there are historical analogues for bans on abusive people having guns. The second was that if you have a restraining order, that means a judge has weighed in and decided you are dangerous. Not so for accused domestic abusers who don't have restraining orders, and so are still legally allowed to have guns.
So, for a gun ban targeted at specific people to be legal, there has to be historical precedent, and there pretty much has to be a judge involved in making the determination. You know what they didn't have 200 years ago? Laws banning drug users from buying guns. And you know who was never subjected to court scrutiny during his period of gun ownership? Hunter Biden. So, he and his lawyers (privately) cheered Friday's ruling, because they now have all kinds of ammo (no pun intended) to try to get his conviction overturned. (Z)