Tuesday, the U.S. Supreme Court heard arguments in a case that aims to undo a federal prohibition on people with domestic violence restraining orders from owning firearms on the argument that even these individuals have an unabridged constitutional right to deadly weapons.
It’s a farcical line of reasoning that’s only being given a serious hearing because of the court’s already irresponsible jurisprudence on guns, which has thrown open the door to challenges like this one and an upcoming case on the use of bump stocks, which make some semi-automatic weapons fire automatically. Fortunately, it seems like Solicitor General Elizabeth Prelogar is coaxing the justices towards the right ruling, if only by convincing them that the limitation fits into the court’s reckless and ahistorical guidelines for appropriate firearm restrictions.
Even if Prelogar’s herculean efforts manage to shoehorn the domestic abuser ban into the court’s new standard for gun restrictions to fit within its hazy and subjective understanding of the “history and tradition” associated with the 1789 Second Amendment, this is a ridiculous standard.
It goes beyond even the reasonable tenet that restrictions should take into account social and legal precedent and engage with the meaning of law as it was enacted, instead practically forcing the government to conform to the specific understanding of small-arms regulation from an era when flintlock muskets were cutting edge — and before the contemporary concept of domestic violence functionally existed.
There’s a reason we don’t expect modern health regulations to ascribe to our conception of the “history and tradition” of medical regulations. Health care is both infinitely more complicated and better understood than it was 200 years ago, just as firearms are far more advanced and numerous, their need negated by sizable police departments and one of the world’s largest standing armies and the grave consequences of their proliferation more acutely apparent.
Of course, while we certainly don’t consider health care to be a constitutional right, the right to bear arms is, making this a thornier question by default.
Nonetheless, this notion that proactive limitation of access to practically the only commercially available tools designed specifically to kill is inherently a constitutional violation is actually a recent narrative that flies in the face of more than a century of legislation. That legacy included the very New York law that the Supreme Court eviscerated last year in New York State Rifle and Pistol Association v. Bruen, setting off this anti-regulation frenzy, ironically counter to the “history and tradition” standard the court itself created.
If that seems bizarre, the explanation is simple: the court’s conservative majority has been keen on tailoring the law to their ideological ends. Perhaps, in the time between Bruen and now, the additional drumbeat of additional stories about people around the country losing their lives to preventable gun violence and the frequent shock of mass shootings — with many shooters having previously exhibited red flags including, often, domestic violence — has pushed the justices to reconsider their position.
Many of the court’s decisions are very consequential, of course, but in this case opening the floodgates further would quickly, directly and proportionally lead to more deaths; that’s not an opinion, it’s an indisputable fact. The damage they’ve done is already done, but the justices must now staunch the bleeding.