Two years ago, New York Times Columnist David French complained that the Supreme Court “created legal confusion and disrupted U.S. gun laws” by saying that U.S. gun laws must be “consistent with the country’s historical tradition of gun control.” French said the court stepped back from the brink last week by upholding a federal law disarming people subject to domestic violence restraining orders.
This perception is somewhat misleading, as all eight justices who voted for the law plausibly claimed to have followed the approach laid out by the court in the 2022 case New York State Rifle and Pistol Association v. Brunn. However, French is not the only Second Amendment supporter who thinks the test is impractical.
the bridge Explicitly rejecting the “balance of interests” test that weighs the burdens of gun laws against their purported benefits, this approach empowers judges to approve any regulations they deem reasonable. But critics the bridge Arguing that it replaces one type of discretion with another, it invites judges to express personal bias in deciding whether the challenged law is “relevantly similar” to “historical analogues” identified by the government.
Written for most people last week United States v. RahimiChief Justice John Roberts concluded, “Our gun regulatory tradition allows the government to disarm individuals who pose a credible threat to the physical safety of others”—a description that applies to at least some of the people covered by the federal injunction, including the defendants in In this situation. Roberts sees precedent for the policy in “bond” laws, which require individuals allegedly threatening to post bonds that can be forfeited if they “breach the peace.”
Justice Clarence Thomas wrote the majority opinion the bridge and the only objection LaxmiIt was recognized that recognizance laws “share common ground” with statutes that disarm people under restraining orders. But he argued that they were “not similar” because “the burdens they impose are much lighter.”
Despite this disagreement, Roberts et al. reiterated the bridge Test, noting that it does not ask for “dead ringers” or “historical twins,” a request that would “suggest a law trapped in amber.” The fact that the justices disagree on how to apply a constitutional standard, as is often the case, does not in itself mean that the standard is unworkable.
However, Justice Ketanji Brown Jackson noted in a unanimous opinion that “lower courts are working” to apply the bridge Consistently, “there were disagreements on both methods and results.” A new study by law professors Rebecca Brown, Lee Epstein, and Mitu Gulati reinforces this impression.
back the bridgeThey reported an increase in the number of Second Amendment challenges being heard in federal courts and an increase in the rate of success. But they found that “judicial discretion, as measured by partisanship, was not constrained.”
In contrast, Brown et al. For example, there is increased consistency between the judges’ conclusions and the party of the president who appointed them. Their conclusion is the bridge “Give judges considerable unguided discretion that invites partisanship.”
Clark Neily of the Cato Institute Laxmi Criticizing the challenged law on the grounds of due process, debate Although the Supreme Court rejected a “balancing of interests” analysis, it took essentially the same approach under the guise of “text/history/tradition.” He predicts “pragmatism will play an important role” hugerole in driving the outcome of the case if not acknowledged.
Nonetheless, it seems clear the bridge Limits judicial discretion in at least some circumstances. For example, in the face of a wave of state laws banning guns in a long list of “sensitive areas,” federal judges predictably disagree with the validity of the administration’s historical analogies, but there are some encouraging signs among Republican and Democratic appointees consistency.
Despite its shortcomings, the bridge There is no denying that testing does work in breaking down constitutionally dubious gun regulations. Whether that works in its favor depends on whether you view the Second Amendment as an inconvenient relic or an important guarantee of fundamental rights.
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