Last week SCOTUS heard a 2nd Amendment challenge to that common sense law, and there’s great reason for hope.
In the United States vs. Rahimi, the conservative 5th Circuit Court of Appeals ruled that a violent and abusive Texas man under a restraining order is entitled to keep his guns, and that the federal law saying otherwise violates the 2nd Amendment. Coloring within the lines of Clarence Thomas’ ridiculous 2022 Bruen test, the appeals court ruled in Rahimi that the federal law keeping guns from people under restraining orders lacked “historical analogue.” Quite literally, under this line of reasoning, because men who brutalized their wives in the 1790s or 1860s did not categorically lose their muskets, men who beat their wives today should get to keep their guns.
Now it appears from oral argument before the Supreme Court that justices may well reverse the 5th Circuit’s decision, meaning common sense federal law will prevail.
If so, this is a prime opportunity for the high court to scrutinize how we got here. In the much-maligned Bruen decision, Clarence Thomas crafted a bold new test, useful to the gun lobby and deadly to everyone else, that requires anyone defending gun restrictions to find similar “historical analogues” that existed when the 2nd and 14th amendments were passed. If no sufficiently similar analogy from those two narrow chapters in U.S. history is found, the gun restriction violates the 2nd Amendment.
Blatantly results-driven as it was, Bruen was merely the next destination along a bone-rattling route of 2nd Amendment jurisprudence that steered woefully off course when it became beholden to the gun lobby.
Let’s take a quick trip through American gun history to understand how we can chart a brighter, safer, saner future.
Remembering the historical basis of the 2nd Amendment
If putative “originalists” on the Supreme Court, who claim to hew to the original meaning of the Constitution, truly honored the historical context in which the 2nd Amendment was passed, this amendment would not be the death warrant it is today.
An unbought and un-lobbied interpretation of the 2nd Amendment would flow squarely from its historical context: In 1775, King George III declared that the American colonies were in a state of rebellion. Eager to defeat, tax and control them while extracting the 13 American colonies’ natural resources, the king sent bayonet-armed soldiers to quell the rabble-rousers from Georgia to New Hampshire. The brutal British soldiers quartered themselves in colonists’ meager homes, slept in their beds, burned their firewood, ate their scarce food — and confiscated their guns so they couldn’t fight back.
England’s attempted disarming of the colonists hampered efforts to organize militias, which in turn handicapped the Continental Army. King George III, of course, lost. Americans won their freedom. And after the fighting finally ended, revolutionary war leaders met at the first Constitutional Convention in 1787 to draw and define the rights of their new government.
Gen. George Washington, fresh from the war, didn’t just attend the Constitutional convention, he served as the influential convention president. And among attendees, there was little appetite for an oppressive chapter of history to repeat itself. As written and adopted in 1791, the 2nd Amendment reflected the inequity of weaponry keenly felt during the British occupation: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Nowhere did Washington (or anyone else) argue, nor does the 2nd Amendment state, that American citizens have the right to bear arms against each other. Rather, the right to bear arms as debated and passed was a matter of collective and military defense, in league with the 3rd Amendment’s prohibition on the involuntary quartering of soldiers and 4th Amendment’s prohibition of unreasonable search and seizure of private property.
The case that erased Revolutionary War history
Trouble, however, started brewing in the 1970s when the National Rifle Association began lobbying to increase the production, sale and distribution of firearms. There was money to be made — lots. Convincing Congress and the courts that the right to bear any sort of contemporary armament was as constitutional as the freedoms of speech, assembly and religion? Just a small cost of doing big business.
After decades of effort, the NRA’s lobby finally paid off in 2008, when the Supreme Court declared for the first time in District of Columbia v. Heller that an individual right to gun ownership under the 2nd Amendment was separate and independent from the militia clause in the same sentence, effectively erasing “militia,” “security of the state” and “well regulated” altogether.
In 2022, Justice Thomas made matters worse in the shameful Bruen decision, which overturned New York’s 100 year-old common sense concealed carry law. Crafting a novel and specious “historical analogue” test, Thomas essentially wrote that an individual’s interest in carrying a concealed gun outweighed the government’s interest in reducing gun deaths. It was an outrageous but predictable result from a justice who has accepted lavish gifts of immense value from right wing political donors.
Lax gun laws kill
States run by Democrats overwhelmingly have lower murder rates than states run by Republicans.
Arranging gun mortality rates according to controlling party affiliation, Forbes and the CDC report that significantly more people are murdered per capita in red states than blue, even though red states tend to have more rural populations.
For example, California, with common sense gun regulations, has a per capita gun death rate 67 percent lower than that of Texas, home of the gun fetish free-for-all where state-level gun restriction proposals are all but dead on arrival in the Texas Legislature. This, despite some of the nation’s most horrific mass shootings of the past decade — at a Walmart in El Paso, in the streets of Midland-Odessa, at a church in Sutherland Springs, at a shopping mall in Allen, at an elementary school in Uvalde where two adults and 19 children had their bodies ripped apart by bullets suited for battlefields.
Higher per capita gun deaths overall are found in states lacking basic regulations involving permit requirements, background checks, secure storage, mental health and high capacity limitations.
The politically powerful NRA, like the fossil fuel industry, has secured laws that protect their staggering profits at the expense of human life, and they have been enabled by a tainted Supreme Court. As Chief Justice Warren Burger once observed:
The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime… The real purpose of the Second Amendment was to ensure that state armies, the militia, would be maintained for the defense of the state... The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.
When drafting the Rahimi decision, Supreme Court justices need to do more than reverse Thomas’ absurd “historical analogue” Bruen decision that would put guns in the hands of brutal domestic abusers.
They need to go back to Heller and reinsert the “well-armed militia” language — and American history — they so shamelessly erased.
Sabrina Haake is a columnist and 25-year litigator specializing in 1st and 14th Amendment defense. Follow her on Substack.