Tuesday, June 25, 2024

Creators: Supreme Court's 'Modest' Gun Ruling Hardly a Victory

Matthew T. Mangino
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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