lawrota.com

In a pivotal Supreme Court hearing on disarming domestic abusers, the very essence of originalism faced scrutiny. The recent legal landscape, shaped by the New York State Rifle & Pistol Association v. Bruen decision, has raised questions about the constitutionality of gun laws and their alignment with the nation’s historical traditions. This upheaval has particularly impacted Section 922(g)(8), a federal law from 1994 preventing individuals under domestic violence restraining orders from possessing firearms.

The recent oral arguments in United States v. Rahimi delve into the heart of the matter, challenging whether Section 922(g)(8) violates the Second Amendment. Despite a conservative majority seemingly leaning towards upholding the law, the struggle to reconcile this stance with the tenets of originalism, a theory deeply ingrained in constitutional interpretation, becomes evident. The Bruen decision asserted that constitutional meaning should adhere to the understandings of those who ratified it, but Rahimi forces a contemplation of this idea in light of common sense and modern societal needs.

The conservative justices, during the oral argument, presented no intellectually defensible means to uphold Section 922(g)(8) while maintaining fidelity to originalism. However, there was no apparent inclination to reconsider Bruen either. Instead, a potential one-off workaround was discussed, aiming to preserve the precedent while upholding the federal law in question. While this might bring relief to advocates of women’s rights and safeguard the Court’s institutional reputation, it falls short of resolving the confusion in lower courts and the fundamental issue presented by Bruen—originalism lacks a consistent and analytically rigorous standard that aligns with contemporary societal values.

Source: Bad Facts, Bad Law | Duncan Hosie | The New York Review of Books (nybooks.com)

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