Two years ago, The New York Times Columnist David French I complainThe Supreme Court “created a doctrinal confusion that has confounded America’s gun law” by saying gun laws “must be consistent with the historical tradition of gun control in this country.” Last week, the Supreme Court backed away from the brink, French suggests, by upholding a federal law that disarms people who are the subject of domestic violence restraining orders.
This opinion is somewhat misleading because all eight justices who voted in favor of the decision Law It plausibly argued that it was following the approach laid out by the court in the 2022 case. New York State Rifle and Pistol Association v. BruenBut French is by no means alone among Second Amendment advocates who think the test is unrealistic.
Blue En The Supreme Court explicitly rejected a “balancing interests” test, which would have required judges to weigh the burdens of gun control against the potential benefits. This approach would have given judges the power to approve restrictions that they deemed reasonable. Blue En They argue that the law replaces one type of unlimited discretion with another, encouraging judges to express personal bias when determining whether a challenged law bears a “relevant similarity” to “historical analogs” identified by the government.
Most of the writing last week United States v. RahimiChief Justice John Roberts concluded that “our tradition of firearms control permits the government to disarm individuals who pose a credible threat to the physical safety of others.” That description applies to at least some people subject to federal bans, including the defendants in this case. Roberts found precedent for this policy in “bond” laws, which require individuals suspected of threatening to post bond that can be forfeited if they “breach the peace.”
Justice Clarence Thomas, who wrote the majority opinion, Blue En And Saul Objection in Rahimiacknowledged that the Surety Act “shares a common justification” with laws that disarm people under restraining orders. But he argued that there is no “relevant similarity” to the Surety Act because the Surety Act “imposes a much lighter burden.”
Despite this disagreement, Roberts et al. Blue En He noted that the test does not require a “look-alike” or “historical twin,” saying such a requirement would “suggest a law trapped in amber.” And the fact that the justices disagreed on how to apply the constitutional standard, as is often the case, does not in itself mean that the test is unworkable.
in Pro-opinionBut Justice Ketanji Brown Jackson noted that “lower courts have struggled to apply it.” Blue En Consistently “diverging in both approach and outcome” New Research Research by three law professors, Rebecca Brown, Lee Epstein and Mitu Gulati, reinforces that impression.
rear Blue EnThe report found that federal courts have heard more Second Amendment cases and have a higher success rate, but concluded that “judicial discretion, as measured by partisanship, has not been limited.”
On the contrary, Brown and his colleagues note that there is increasing agreement between justices’ decisions and the political party of the president who appointed them. Blue En “It gives judges a great deal of arbitrary discretion and invites partisan bias.”
Clark Neily of the Cato Institute: simple in Rahimi criticized the law on due process grounds; Assert Although the Supreme Court has rejected the “balance of interests” analysis, it has taken essentially the same approach under the guise of “text/history/tradition.” HugeIf not recognized, it will play a role in determining the outcome of the case.”
but, Blue En It has limited judicial discretion in at least some cases. For example, faced with a wave of state laws banning guns from a long list of “sensitive locations,” federal judges predictably disagreed about the validity of the government’s historical analogies but Republican and Democratic The appointed person.
Although there are drawbacks, Blue En This test has undoubtedly been effective in striking down constitutionally questionable gun laws. Whether it works in your favor depends on whether you view the Second Amendment as an inconvenient relic or an important guarantee of fundamental rights.
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