The Supreme Court on Friday issued the kind of ruling that would once have been viewed as so obvious as to be unnecessary: Yes, the court said, judges have the constitutional authority to deny firearms to defendants who are under domestic-violence restraining orders.
The court was only able to reach this rational conclusion by ignoring its own “originalist” mantra and considering the question in the context of current (as opposed to colonial) America. That speaks volumes about the unworkability of originalism.
The case comes out of Texas but has special relevance in Missouri. In their determination in the past few years to eliminate almost every gun restriction in state law, Missouri legislators inadvertently stripped state judges of the ability to disarm dangerous domestic abusers, leaving only federal law to protect their victims. …
The court’s ruling in U.S. v. Rahimi is an encouraging if isolated glimmer of sanity from the court’s conservative majority on this issue.
Drug dealer Zackey Rahimi was put under a domestic-violence restraining order after he battered and dragged his girlfriend in a parking lot and fired a gun to ward off a bystander. He later called the woman and threatened to shoot her in the face if she reported the attack.
A judge put Rahimi under a domestic-violence order of protection to prevent him from threatening the woman. The restraining order included temporary suspension of his firearms license and a prohibition from possessing guns while the order was in place.
Rahimi subsequently violated that order with his involvement in several shootings and the police discovery at his home of multiple guns. Rahimi claimed the Second Amendment protected his right to possess the weapons and that the federal law allowing him to be disarmed under the order of protection was unconstitutional.
The conservative 5th Circuit Court of Appeals sided with Rahimi. That’s the ruling the Supreme Court overturned Friday, upholding the federal law that gave the original judge the authority to disarm Rahimi.
Ironically enough, the appellate court ruling relied on the Supreme Court’s own 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which severely curtailed the power of states to impose rational gun restriction — and furthered the concept of originalism.
That conservative concoction of a standard (originalism) says the Constitution must be interpreted based on the historical understanding of issues addressed in the document at the time it was written.
If deciding issues today based on thinking from a time when slavery was legal and long before women could vote sounds unworkable — well, it is.
Sole dissenting Justice Clarence Thomas, ignoring as usual the real-life implications of his opinions, argued that “not a single historical regulation justifies the statute” disarming domestic abusers. Loathe as we are to say it, he’s probably right. Which is a tidy illustration of why the originalism that Thomas and his fellow right-wing extremists have come to fetishize is such a terrible legal construct.
The special issues connected to domestic violence — the shame and secrecy surrounding it, the difficulty in prosecuting it, the tendency toward escalation — have been widely understood only in modern times. The concept of even a restraining order against a spousal abuser would likely have been unthinkable to the framers, let alone legally disarming that abuser.
By the court’s own majority thinking, then, abused women should have to just take their chances with fully armed abusers. Because that’s how it was when the Second Amendment was ratified in 1791.
Happily, the rest of the court’s conservatives were willing to ditch their own originalist principles when faced with this particular example of their real-world impact.
