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June 24, 2024
Last Friday, advocates for sensible gun access applauded a
decision by the U.S. Supreme Court. The decision appeared to slow a trend by
the court to eradicate any limitation on gun ownership.
The Supreme Court ruled that the government can take guns
away from people subject to restraining orders for domestic violence. According
to Adam Liptak of The New York Times, just two years ago, the court expanded
the scope of the Second Amendment when it formulated a new test to assess all
gun-related laws, one that would judge constitutionality by looking to
tradition and historical practices.
Recently, I wrote about the Supreme Court's "new"
method of interpreting the U.S. Constitution — "history and
tradition." History and tradition is a spinoff of "originalism."
Former Justice Antonin Scalia was a proponent of originalism and argued that
high court decisions should be grounded in the moment the Constitution was
written, to prevent judges from substituting their values for the wisdom of the
nation's founders.
In New York State Rifle and Pistol Association v. Bruen, a
New York state law required anyone wanting to carry a concealed handgun outside
the home must show "proper cause" for the license.
The Supreme Court ruled that the Second Amendment protects a
broad right to carry a handgun outside the home for self-defense. In the
future, according to Amy Howe of the SCOTUSblog, courts should uphold gun
restrictions only if there is a tradition of such regulation in U.S. history.
In United States v. Rahimi, decided Friday, the Supreme
Court was tasked with deciding 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 an 8-1 majority, wrote, "Since the founding, our nation's firearm laws
have included provisions preventing individuals who threaten physical harm to
others from misusing firearms."
The court found through history and tradition that the
Second Amendment has limits. That is important. Roberts went on to write,
"The appropriate analysis involves considering whether the challenged
regulation is consistent with the principles that underpin our regulatory
tradition."
Court watchers held their breath waiting on the Court's decision.
Could the Court find that a domestic abuser, deemed dangerous, should be
allowed to possess a gun?
As little as 10 years ago, it would have been unthinkable
that persons found to have battered their partners would be guaranteed the
right to bear arms under the Second Amendment to the United States
Constitution.
Oh, but how things have changed. The 6-3 conservative bent
of the Supreme Court has some Americans celebrating as a "victory"
what would have, not so long ago, been thought of as a "no-brainer" —
disarming perpetrators of domestic violence.
Justice Clarence Thomas, the lone dissenter, wrote that the
government cannot "strip the Second Amendment right of anyone subject to a
protective order — if he has never been accused or convicted of a crime."
Apparently, proving someone is a batterer in civil court, in
Thomas' mind, is not enough to disarm the person. Only, for now, a criminal
conviction would be adequate.
According to Liptak, the chief justice said the court's
opinion was modest. "We conclude," Roberts wrote, "only this: An
individual found by a court to pose a credible threat to the physical safety of
another may be temporarily disarmed consistent with the Second Amendment."
For those supporting sensible gun restrictions, this
"modest" decision is hardly a victory; it is merely a reminder of how
much ground has been lost in the battle to reduce the number of injuries and
deaths as the result of easy access to firearms.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book "The Executioner's Toll, 2010" was
released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.
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