Supreme Court Upholds Red Flag Law

A reasonable ruling clarifying a poorly-written prior opinion.

Adam Liptak, NYT (“Supreme Court Upholds Law Disarming Domestic Abusers“):

The Supreme Court ruled on Friday that the government can take guns away from people subject to restraining orders for domestic violence, limiting the sweep of a blockbuster decision in 2022 that had vastly expanded Second Amendment rights.

Indeed, Friday’s decision amounted to a retreat from what had been an unbroken series of major rulings favoring gun rights that started in 2008, when the court first recognized an individual constitutional right to keep firearms in the home for self-defense.

In the 2022 decision, the court established a right to carry guns outside the home and announced a new test to assess all sorts of gun control laws, one that looked to historical practices to judge their constitutionality. That new test has sown confusion in the lower courts, with some judges striking down laws that had been on the books for decades.

The case decided Friday, United States v. Rahimi, asked whether a Texas man could be prosecuted under federal law making it a crime for people subject to domestic violence restraining orders to possess guns. Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said that the answer was yes and that Second Amendment rights have limits.

“When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may — consistent with the Second Amendment — be banned from possessing firearms while the order is in effect,” the chief justice wrote. “Since the founding, our nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.”

Justice Clarence Thomas, the author of the majority opinion in the 2022 decision, New York State Rifle & Pistol Association v. Bruen, was the only dissenter.

[…]

The Bruen decision said gun laws are constitutional only if courts can find a historical analogue.

But that inquiry, Chief Justice Roberts wrote on Friday, does not require locating an exact match and can instead focus on broad principles. “The appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” he wrote.

In dissent, Justice Thomas vehemently disagreed with the majority’s approach.

“The court and government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence,” he wrote.

Justice Thomas wrote that the government has a better way to disarm dangerous people — by prosecuting them for criminal violence. What the government cannot do, he said, is to “strip the Second Amendment right of anyone subject to a protective order — even if he has never been accused or convicted of a crime.”

The court’s three liberal members, who had dissented in the Bruen case, wrote that they continued to think that the ruling was a grave error. But, in a pair of concurring opinions, they said they were happy to embrace the new limits.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, welcomed what she called a clarification of the Bruen standard.

“The court’s interpretation,” she wrote, “permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”

She added that Justice Thomas’s analysis would produce a perverse result. “Under the dissent’s approach,” she wrote, “the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary.”

Justice Ketanji Brown Jackson, in her own concurrence, said the Bruen decision had left lower courts in a state of deep confusion. The chief justice’s majority opinion, she wrote, was “a tacit admission that lower courts are struggling.”

She added: “In my view, the blame may lie with us, not with them.”

Jackson is right. While I support the substance of the Bruen ruling, it was so poorly written as to practically invite absurd outcomes in the lower courts—particularly in the 5th Circuit.

Thomas’ dissent reminds me of his late friend Antonin Scalia’s frequent quip—often comparing himself to Thomas—“I’m a textualist. I’m an originalist. I’m not a nut.” While Scalia was an ideologue, he gave some consideration to practical consequences. Thomas, not so much.

While I would agree with him that the way to get guns away from violent people is to put them in jail, it’s absurd to think the Framers intended to let people who have made specific and credible threats of violence run around with guns until they’re convicted of a crime. And, surely, a judicial hearing that results in a restraining order is sufficient due process for the temporary suspension of one’s gun rights.

WaPo’s Ruth Marcus (“Justices course correct on gun control. Don’t count on it to continue.“) isn’t satisfied.

It was clear from the moment the justices accepted the case — part of the spate of rogue rulings from the out-of-control U.S. Court of Appeals for the Fifth Circuit that it is reviewing, and fixing, this term — that Zackey Rahimi would lose.

As Chief Justice John G. Roberts Jr. outlined in his opinion for the court, Rahimi is a drug dealer who embarked on a weeks-long shooting spree — my favorite was firing in the air when his friend’s credit card was declined at a Whataburger — all while subject to a restraining order that barred him from possessing weapons. Rahimi had dragged his girlfriend to his car, fired shots as she fled and threatened to shoot her if she told police. Police found an arsenal in his home.

These are what lawyers call bad facts. Rahimi’s constitutional argument was that the high court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen invalidated the possession law because it lacked a colonial-era analogues. The Fifth Circuit agreed.

Friday’s ruling made clear, as Roberts put it, that Second Amendment law is not “trapped in amber,” requiring a precedent precisely on point. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” Roberts wrote. “As applied to the facts of this case, [the domestic abuse law] fits comfortably within this tradition.”

So, what’s the problem?

Sotomayor, in a concurrence joined by Kagan, zeroed in on the inherent limitations of the historical approach. “Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, it is no surprise that that generation did not have an equivalent” to the law disarming domestic abusers, she noted.

Still, she said, despite Bruen’s “myopic focus on history and tradition,” the majority’s approach in Rahimi’s case at least “permits a historical inquiry calibrated to reveal something useful and transferable to the present day.”

Perhaps more interesting was the array of approaches endorsed by the conservative justices — as well as the welcome fact that Justice Samuel A. Alito Jr., who didn’t write separately, signed onto the Roberts opinion rather than join Thomas in dissent.

Justice Neil M. Gorsuch emphasized that the historical inquiry shouldn’t be watered down to too great a level of generality, lest courts “risk gaming away an individual right the people expressly preserved for themselves,” signaling, perhaps, that for him Rahimi’s case was a one-off.

Justice Amy Coney Barrett, who has been musing openly this term about how to apply the historical test, emphasized that “imposing a test that demands overly specific analogues has serious problems,” and said the absence of a restriction wasn’t necessarily dispositive. At the same time, Barrett expressed doubt about looking to historical practices long after ratification of the text at issue.

Even under Bruen, as Sotomayor and Kagan said, United States v. Rahimi was “an easy case.” Harder ones are not far off: Are felon-in-possession laws that prohibit convicted felons from having guns constitutional, even if the felony involved was nonviolent? What about laws barring drug users from having weapons, as in the case of Hunter Biden? What about those who are charged or convicted of misdemeanor domestic abuse, not felonies?

Friday was a better day for those who believe in rational gun regulation — the first time the court had upheld a gun law since it declared in 2008 that the Constitution protects an individual right to bear arms. But this is an interim word from a conservative-dominated, history-obsessed court, not the last one.

Roberts’ opinion doesn’t fully clarify the boundaries but, as Justice Kavanaugh rightly notes, “Second Amendment jurisprudence is in its early innings,” given that the Court didn’t issue its maximalist interpretation of gun rights until 2008.

Whether the Framers intended a broad, personal right to own firearms is debatable and, indeed, has been debated for quite a long time. If we’re operating on the post-2008 assumption that this is what the 2nd Amendment guarantees, though, I don’t know what other than history we’d use to understand the limits of the right. That’s at least partially how we’ve interpreted the protections of the 1st, 4th, 5th, and 8th Amendments.

Rather obviously, 1789 (when the Bill of Rights were authored) was a very long time ago and the law needs to adjust for societal and technological developments. But the basic principles here haven’t changed much: people have a right to own guns but the community has the right to place reasonable limitations on those rights. Taking guns away from drug dealers who threaten to kill their girlfriends is a pretty easy call.

Slate‘s Mark Joseph Stern (“The Supreme Court Walks Back Clarence Thomas’ Guns Extremism“) is more generous:

The difference between Rahimi and Bruen is perfectly captured by Roberts’ majority opinion and the lone dissent written by Bruen’s own author, Thomas. The chief justice asserted, “The government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” He breezily walked through a smattering of history allowing for the seizure of arms to preserve “public order.” For proof, Roberts cited surety laws, legislation that required an individual “suspected of future misbehavior” to post a bond, which he would forfeit if he engaged in misconduct. Domestic abusers could, in theory, be subject to the surety system, as could individuals who misused firearms—and that was good enough for Roberts. To him, this evidence established a historical practice of “preventing individuals who threaten physical harm to others from misusing firearms.” And disarming abusers “fits comfortably within this tradition.”

To Thomas, by contrast, surety laws “are worlds—not degrees—apart” from the law in question, because they were civil (not criminal) measures that did not actually disarm people but merely threatened them with a fine. These laws “did not alter an individual’s right to keep and bear arms,” Thomas protested, and they therefore failed to establish a relevant “history and tradition.” Indeed, “the government does not identify even a single regulation with an analogous burden and justification,” he complained in dissent. In 1791 a man like Zackey Rahimi could be disarmed only after a conviction for a violent crime. And so, Thomas wrote, that must remain the rule today.

Bruen was a 6–3 decision. Yet every justice who joined Thomas’ opinion in Bruen in 2022 signed on to Roberts’ walk back of Bruen on Friday. What happened? Aside from Justice Samuel Alito, every remaining member of the court expressed their views by writing or joining separate concurrences in Rahimi. Justice Brett Kavanaugh tried to defend his beloved “history and tradition” test, as opposed to “a balancing test that churns out the judge’s own policy beliefs,” while creating more room for “precedent” (or “the accumulated wisdom of jurists”). Justice Amy Coney Barrett wrote that Bruen “demands a wider lens” than the 5th Circuit deployed, explaining that “historical regulations reveal a principle, not a mold,” and do not forever lock us into “late-18th-century policy choices.” Justice Neil Gorsuch tried to split the difference, marshaling a defense of Bruen while subtly reworking it to limit sweeping legal attacks on gun regulations.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, celebrated the majority’s focus on “principles” instead of perfect analogs. “History has a role to play in Second Amendment analysis,” she wrote, “but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.” Justice Ketanji Brown Jackson, who joined the court soon after Bruen came down, warned that Rahimi will not end the “increasingly erratic and unprincipled body of law” that Bruen inspired. “The blame” for the lower courts’ struggles “may lie with us,” she noted, “not with them.” All three liberals sound ready and willing to overturn Bruen altogether if they get the chance—but will, for now, settle for Rahimi’s compromise.

The difference between Roberts and Thomas is that one is not a nut.

FILED UNDER: Law and the Courts, Supreme Court, , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jen says:

    “Under the dissent’s approach,” she wrote, “the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary.”

    This has always bothered me about the textualist/originalist approach. Times change, and thank goodness we’ve (mostly) moved away from the notion that wives & kids are property.

    Thomas seems to be getting crazier in his old age.

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  2. Not the IT Dept. says:

    If the Framers could be brought back for a day to take a look around, the one issue that would shock them speechless is the way the Second Amendment is regarded. Once they regained their voices we can be sure they’d say this wasn’t what they intended.

    And anyone who’s got a restraining order placed on him (it’s almost always a “he”) should not have access to a gun. I wish I could believe that would affect him but somehow I think domestic violence perpetrators are not conversant with higher court decisions.

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  3. gVOR10 says:

    I’ll revisit Karl Popper. Should we have a Closed Society bound by an 18th century document and its contemporary law and custom or should we be an Open Society, adapting to circumstances? The Federalist Society’s answer is Originalism, the idea that we must be strictly bound to the original rules or uncertainty will ensue. However, Originalism has created uncertainty as by claiming their one true way is the only way they have overturned commonsense precedent. Sterns summary above sounds like Roberts, in order to avoid doing something crazy, played pretty fast and loose with Originalism. A position you endorse, “it’s absurd to think the Framers intended to let people who have made specific and credible threats of violence run around with guns until they’re convicted of a crime.” Originalism and Textualism don’t allow trying to divine intent.

    The Constitution, along with 18th century law and custom, favored the wealthy elites of the time. Our current wealthy elites paid for the creation of Originalism in an explicit bid to lock in similar advantages. Wrt/ the 2nd, the FedSoc went further, sponsoring creation of a book of historical research cherry picked to support their position. In practice Originalism has led not to clarity but to outcome driven Calvinball.

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  4. just nutha says:

    @Jen: Thomas may well be getting crazier, but his history as a departmental/agency bureaucrat before becoming a Supreme favors developing approaches that will give “because I said so” a veneer of legal reasoning. Bruen is simply an example of such an approach.

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  5. Gustopher says:

    @Not the IT Dept.:

    If the Framers could be brought back for a day to take a look around, the one issue that would shock them speechless is the way the Second Amendment is regarded. Once they regained their voices we can be sure they’d say this wasn’t what they intended.

    I have a terrible idea for the future of Originalism: LLMs being instructed to speak in the voice of various Founding Fathers and render their opinions on the hotly debated issues of our times, and this becoming the basis for Supreme Court opinions.

    It’s so awful it just has to happen. How can we claim to be living in the worst possible timeline if this doesn’t happen?

    I think the fine and gentle folks at PragerU could help instruct the originalists on how to use AI this way. They have a U in their name, so they must be educational.

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  6. steve says:

    Shouldn’t original laws also include original conditions. I would be pretty much OK if people wanted to cary single shot flintlocks everywhere.

    Steve

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  7. Matt says:

    @steve: Repeating flintlocks were a thing prior to the founding of this country. The Chelembrom magazine repeating flintlock had a 20 round capacity and was probably the best repeating rifle design of the 1600s. The lorenzoni repeating flintlock design was almost as good and like the Chelembrom design was available in pistol and rifle configurations. The Lewis and Clark expedition of 1803 brought along a 1779 Girandoni repeating air rifle because of it’s high rate of fire and relative quiet operation. The first repeating firearm invented in the USA was the Belton Fusil which could fire 8 rounds in 3 seconds. Washington originally ordered 100 of the muskets for the continental army but Belton felt the price was too low for his rifles and the order was dropped. There was a variety of flintlock and matchlock revolver rifles/shotguns/pistols. The chamber’s swivel gun was developed in the 1791 era and could fire 120 rounds per minute (it was used in the war of 1812). Then there’s the early machine guns such as the puckle gun (1718) or the various volley guns etc etc.

    Keep in mind the Second amendment was ratified in 1791.

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  8. DK says:

    The 2nd Amendment was not supposed to give anyone unfettered access to any firearm they want at any time without restriction or regulation. Not in the text, not the original intent.

    Furthermore, as even Kavanaugh notes, it was never interpreted as such until very recently — after the Republican Party became a fully-owned subsidiary of the corporate gun lobby. You don’t have to go back to the founders to find shapers of American jurisprudence who’d be bewildered by the radical, extremist misinterpretation of the 2nd Amendment by Federalist Society hacks. Conservative jurists who sat on the court within our lifetimes would be equally flummoxed.

    The Court’s contemporary conservatives have gone too far and have blood on their hands. They know it. How or whether they walk themselves back, we’ll see.

    In 1791 a man like Zackey Rahimi could be disarmed only after a conviction for a violent crime.

    If Thomas believes Zackey Rahimi would have been welcomed into early America’s well-regulated militia with or without a criminal conviction, Thomas is not just a nut, but ignorant to boot.

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  9. gVOR10 says:

    Above James quotes Slate’s Mark Joseph Stern. Over at LGM, in a post titled “The Sheer Stupidity of Originalism“, historian Erik Loomis notes that actual historians are unimpressed by SCOTUS Originalists’ “history”. He also quotes Stern,

    Imagine trying to explain Bruen and Rahimi to the Framers of the Second Amendment, whose sole purpose was to ensure that the Constitution didn’t undermine states’ authority to maintain their own militias independent from the new federal government. That’d be a fun conversation!

    Loomis concludes,

    Part of me would respect the “originalists” more if they just admitted they were making up a version of the past that fit their current politics. There is simply no possible way to interpret the Second Amendment in the way that Republicans do that has any connection to actual history at all. But they are really addicted to their bullshit and the media eats it up, so why not.

    As I said above, it’s Calvinball.

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  10. Kathy says:

    @Matt:

    Interesting. I’ve read a bit on firearms history, and had never come across this.

    Here’s a video that shows how the mechanism works.

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  11. steve says:

    Matt- How many people actually carried and used those? The Girandoni in particular didnt hang around a long time as it was expensive, took a lot of training and it was fragile. The Chambers gun wasn’t really accepted until 1812 and it was only used by the military AFAICT. The Belton made claims about its rate of fire but note that none were ever purchased. He tried selling them to the Continental Congress, then being a true patriot tried selling them to the British.

    So I will gladly amend my statement to say that I would be OK if 99.8% of those carrying guns were carrying a single shot flintlock and the other 0.1% were carrying repeaters that probably didnt work, were very expensive, were unreliable, took a long time to reload (and in the case of several of those you cite took a second or two between shots), were as large as a Chambers, or so delicate they disappeared in a few years. That was the world that really existed in 1791. It was not the world where the weapons that everyone carried were reliably capable of multiple rapid fire shots.

    Steve

    Steve

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  12. Andy says:

    @steve:

    Shouldn’t original laws also include original conditions. I would be pretty much OK if people wanted to cary single shot flintlocks everywhere.

    Is that a standard we’d also apply to the 1st, 4th, and other parts of the Bill of Rights? Should all those things only apply to technology that was available in the late 18th century?

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  13. steve says:

    Andy- I am not an originalist. It’s basically a stupid idea. It means that people can choose some version of the past that they believe existed and then sculpt the laws to meet the vision they prefer. As Paul notes we didnt have much in the way of police departments at that time. We didnt have cars or airplanes. How do you apply originalist laws to cars when they didnt exist then? Easy, you just make up stuff you like and claim it’s similar.

    However, Bruen was decided on a, supposedly, originalist interpretation. In this case the originalists are ignoring the way the world really existed at the time the constitution was written. The writers of the constitution had no idea that we would eventually be able to carry around concealed weapons with 20 round or more magazines that you could reload by changing magazine quickly. So IMO if you want to have originalist laws then you ought to have originalist conditions. If the conditions changed then maybe the laws need to change.

    Steve

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  14. steve says:

    Fun fact. The Chambers flintlock machine gun took so long to load it was used once when in combat and not used again. It was only used as far as we can tell by the US since it was pretty unreliable. The country most interested in buying one, France IIRC, had theirs blowing up during testing. So I would add to statement above that the 0.1% of people using repeating flintlocks would also have them explode occasionally.

    Steve

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  15. Just nutha ignint cracker says:

    @Andy: You don’t recognize snark when you hear it? 🙁

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  16. Matt says:

    @Kathy: Forgotten weapons aka gun Jesus is my favorite firearms related youtuber. He used to do most of the videos for Rock island auctions but not that video.

    @steve: How to say you’re commenting on something you know very little bit about without saying it. You’re vastly overstating the downsides/difficulties. Sure price is higher as it always is for fancier/better gear. This stuff made it into wartime usage for a reason.

    Your response reminds me of the people who shit on the M16 because of the issues that existed when it was first deployed. Of the issues typically listed almost all of them stemmed from user error and the usage of the wrong kind of powder in the ammo.

    @steve: ALL guns through that era exploded occasionally. Metallurgy and gunpowder was still basically a dark art. Mass production wasn’t really a thing yet either for firearms.

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  17. steve says:

    Regular watcher of forgotten weapons. On the M-16 I would recommend reading Chivers book The Gun. Nice comparisons between the Ak and M-16. Anyway, the M-16 became a decent weapon but when it first came out it had issues and it was more than the powder which was a big issue. It was still superior to the M-14. The powder issue as I recall was all due to Army bureaucracy and the manufacturer was very much opposed to the change in powder which caused multiple problems. However, the gun was issued and presented to troops as being a nearly self cleaning gun or needing very little cleaning. Especially with the change in powder that was very much not true. Seems a bit harsh to call it user error when troops were initially told it didnt need much cleaning and as I recall cleaning kits were in short supply.

    That said, I am in the school that thinks it did have corrosion issues beyond just the powder. Adding the chrome plating helped with that issue. (Will confess I am biased since I was a corpsman in the early 70s and spent a lot of time listening to my Marines bitch about the early version of the gun.)

    Steve

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  18. Gustopher says:

    @Matt:

    ALL guns through that era exploded occasionally. Metallurgy and gunpowder was still basically a dark art. Mass production wasn’t really a thing yet either for firearms.

    Perhaps that’s the originalist opinion we were looking for: you can have any gun that sometimes explodes and hurts you.

    What was the failure rate? 0.1%? Totally fine.

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  19. Kathy says:

    @Matt:

    I appreciate the reference, even though I seriously don’t need another Youtube channel with good content that will suck away my time 😉

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  20. Andy says:

    @steve:

    Andy- I am not an originalist. It’s basically a stupid idea. It means that people can choose some version of the past that they believe existed and then sculpt the laws to meet the vision they prefer.

    I’m not an originalist either, but I have yet to hear any originalist claim that what you characterize as the law must match the social and technological conditions of the late 18th century – rather they argue, IIRC, that the meaning and intent is what matters.

    And originalism as opposed to what? Sculpting law to meet the vision one prefers is basically the essence of the theory of the “living Constitution,” where the Constitution exists to serve one’s temporal political or ideological goals.

    My personal view is that all these things matter to different degrees. I think a balance must be struck between the politics of the moment, original intent, and the plain language meaning. There will obviously be a lot of disagreement over how to slice that pie.

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  21. Jax says:

    @Kathy: @Matt: Also why I love this site. You never know who might comment that you can learn from.

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  22. steve says:

    Andy- Of course you dont hear them talking about the conditions when the law was written. It would limit the interpretations of the law if you did that. However, as I noted, we dont know what laws they would have written if the norm was that guns were fairly cheap as was ammunition and they were essentially all capable of firing many rounds and quickly reloading. (Yes, there are single shot weapons available even now.) If you want to have originalist laws you need to have an originalist world. Then of course there is always the issue of deciding what that world really looked like. Take abortion. It was clear there was a lot of it in the 1700s. It was even advertised in periodicals. However, when you are Supreme Court judges you can decide that history doesnt count, just what you like.

    If I were a judge, scary thought, I think I would try to be informed about the original meaning of any particular law, but I think you need some humility about realizing you wont really understand or even necessarily have an accurate picture of the history. You also need to be aware that society has changed so that laws just cant work if you try to apply them as intended 250 years ago. The idea of trying to practice the kind of strict originalism Thomas uses is just nuts. The originalism used by Scalia and the rest of them is opportunistic. They just create a version of history they want to believe to achieve the legal outcome they want to have.

    Steve

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