Once Again, #Originalism’s Hollow Core Is Revealed. In #rahimi #SupremeCourt #SCOTUS made the right decision for the wrong reasons. #domesticviolence #SecondAmendment #2ndamendment #gunviolence #courts #constitution #guns #originalism #billofrights #unqalifiedcommand #restrainingorder United States #CourtofAppeals for the #FifthCircuit #lawtrappedinamber https://www.theatlantic.com/ideas/archive/2024/06/failure-originalism-supreme-court/678783/ read free https://archive.is/GJziP

@bigheadtales @GottaLaff

#Heller (2008) is the original sin and until it is overturned there will continue to be #2ndAmendment decisions by this #scotus that will exacerbate #gunviolence. #Rahimi is an aberration.

The concurring opinions in #Rahimi, read together, signal a brewing fight over overruling #Bruen altogether. The concurrences most clearly concerned with this are by #Sotomayer, #Gorsuch, and #Jackson. But I think even #Kavanaugh and #Barrett are telegraphing information about their positions on that. While I certainly hope Bruen comes up for reconsideration and gets overruled, it would be better for the court to overrule #Heller and thus its progeny, which includes #Bruen. 2/

Ok, I just finished reading #Rahimi and posting about it as I did so. That thread starts at https://mastodon.social/@heidilifeldman/112655732466156993 and (I broke it, accidentally) continues at https://mastodon.social/@heidilifeldman/112655834420033803. Now, some more synthetic reactions from me. 1/

#Jackson concurrence concludes by recognizing that, over time and through repeated appellate adjudication, a stable, workable approach to #Bruen might emerge. But there are "miles to go" and introducing chaos and uncertainty into Supreme Court standards erodes #RuleOfLaw. #Rahimi /25

More from #Jackson concurrence in #Rahimi: "Consistent analyses and outcomes are likely to remain elusive because whether Bruen’s test is satisfied in a particular case seems to depend on the suitability of whatever historical sources the parties can manage to cobble together, as well as the level of generality at which a court evaluates those sources...." 24/

"The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness." #Jackson, writing in concurrence in #Rahimi. 22/

#Jackson concurrence starts with her rejection of #Bruen methodology. She's making it clear she'd vote to overrule it. But, she also makes clear that she accepts it as "binding precedent." According to her the #Rahimi decision applies #Bruen fairly, so she joins the Court's opinion in full. Then, Jackson turns to an interesting angle: the difficulty lower courts have in applying #Bruen methodology. 21/

#AmyConeyBarrett writes a concurrence in #Rahimi that reiterates her theory of originalism in Constitutional interpretation. Main point: history after the ratification of the original constitution not likely to be relevant to interpreting the Bill of Rights.
Taken together, #Barrett and #Kavanaugh concurrences seem to be primarily directed toward each other, laying down the gauntlet for future fights. 20/

Eventually, #Kavanaugh takes up of the role of #precedent in Constitutional interpretation. Given his position in #Dobbs, this should be rich.#Rahimi 18/

#Kavanaugh concurrence in #Rahimi begins with a rather Mickey Mouse discussion of a) the primacy of text in Constitutional interpretation and b) the challenges "vague" or "broadly worded" Constitutional provisions. According to Kavanaugh, history is a relatively neutral guide to interpreting these. Kavanaugh then writes at length about his views of the relevance of pre-Constitutional and post-Constitutional history. I'm not sure what all this is meant to accomplish. It goes on for pages. 17/

#Gorsuch writes a meandering concurrence in #Rahimi, taking the opportunity to bolster his view of the #SixthAmendment right to confront one's accusers and, more generally, his insistence that any balances between rights and regulations are "set in amber" by the Constitution itself. He concludes by countermanding any invitation for reconsideration of #Bruen. /16

#Sotomayor concludes by reiterating her criticisms of #Bruen, which, she argues, unconstitutionally restricts legislatures' ability to grapple with #GunViolence. But reconsideration of Bruen was not before the Court. (Sotomayor essentially inviting parties to seek such reconsideration in the future.) #Rahimi 15/

#Sotomayor, continued: "History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy." #Rahimi 14/

Great passage from #Sotomayor: "Under [#ClarenceThomas] approach, the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary. ... #Rahimi 13/

On to the concurrence by #Sotomayor and joined by #Kagan. Sotomoayor emphasizes that she still maintains #Bruen was wrongly decided. But, even under Bruen, #Rahimi is an easy case - prohibiting adjudicated domestic abusers from possessing guns is, under any sense of analogical reasoning, analogical to historical laws regulating firearms possession and use. #ClarenceThomas tries to argue that any difference between historical and today's laws makes them disanalogous. That's ridiculous. 12/

Prospective, categorical gun control gets no protection from today's decision in #Rahimi. #LawFedi 11/

The #Rahimi Court insists that "historical analysis" will continue to be the order of the day for considering the Constitutional validity of firearms regulation. It emphasizes the narrowness of its holding: "[W]e conclude 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." This is narrow indeed. 10/

Now at the part of the #Rahimi opinion that explains where the Court thinks the lower court, the Fifth Circuit, and the dissent by #ClarenceThomas both err. Both insist on a historical twin to justify a law disarming those who pose a credible threat of domestic violence, when what is required is an analogue. Furthermore, the Fifth Circuit went out of its way to make up a conflict between the domestic violence law and the Constitution.

This criticism of the Fifth Circuit is key. 8/

According to the #Rahimi Court nothing in #Heller created an unbounded right to keep handguns in the home and nothing in #Bruen disturbs the government's authority to regulate firearms possession by those who have been found to pose a credible threat to the physical safety of others. 7/