At Slate, Saul Cornell (Fordham – History): How the Supreme Court’s Conservatives Can Solve Their Guns Dilemma Without Losing Face. From the introduction:
In a spirited oral argument at the Supreme Court last month, the radical version of originalism championed by Justice Clarence Thomas was exposed as both unworkable and inconsistent with the historical meaning of the Second Amendment. The federal public defender charged with the unenviable task of protecting the right of Zackey Rahimi, a violent domestic abuser, to possess a firearm was eviscerated by the justices. From across the court’s ideological spectrum, Rahimi’s lawyer faced a barrage of hostile questions and searching criticisms that left him sputtering, struggling to articulate a coherent defense of his client’s right to own a firearm despite his violent past behavior. The Rahimi case was fast-tracked by the United States solicitor general’s office because of a poorly reasoned and historically flawed decision by the rogue U.S. Court of Appeals for the 5th Circuit, which asserted that the Founding generation would have balked at disarming domestic abusers. The 5th Circuit’s originalists effectively weaponized their ignorance of the facts of Anglo-American legal history to arrive at this absurd result.
Based on the questions hurled at Rahimi’s lawyer at oral argument, it seems likely the Supreme Court will reverse the 5th Circuit’s decision. What is less clear is how the high court will confront the underlying problems created by Thomas’ flawed framework in New York State Rifle and Pistol Association v. Bruen that led to the 5th Circuit ruling in favor of Rahimi.
The court has a rare opportunity to fix the problem it created without losing face. A path forward to resolving these problems was sketched by Solicitor General Elizabeth Prelogar in response to a question by Justice Elena Kagan. Prelogar outlined a minimalist set of clarifications the court needs to make to Bruen. …
And from later on:
The other problem with the hyperliteralist approach to applying Bruen evidenced in both the California case and Rahimi is the failure to comprehend the role that common-law methods of keeping the peace played in the era of the Second Amendment. One of the primary means of regulating weapons in 1791, an era when there were no police forces, no administrative state, and most legal matters were handled locally by justices of the peace, was the use of a common-law tool: peace bonds. Modern bail bonds that require an individual to post a sum and forfeit it if they fail to appear in court are the direct lineal descendants of these legal instruments which have been supplanted by other legal tools but were once a common feature of American law. Although today most Americans are likely to encounter a justice of the peace in the context of civil marriage ceremonies, this office was once the most important agent of law enforcement. At the time of the Second Amendment, justices of the peace had broad powers to detain, search, disarm, and, if necessary, imprison those who carried deadly weapons in public contrary to common law. In the Founding era, traveling armed in public, apart from a list of recognized exceptions, violated the peace. Any justice of the peace could stop and question an individual traveling armed without proper cause, disarm them, and impose a peace bond. If the individual traveled armed again, without good cause, a higher bond would be imposed, and if the individual continued to violate the peace, they were disarmed and imprisoned.
Posted at 6:13 AM