The absurdity of originalism

It’s hard to imagine a more straightforward case. In November, the US Supreme Court heard oral arguments in United States v. Rahimi. A man convicted of domestic violence, along with multiple other gun-related crimes, wants his guns back, and the justices seemed to agree that he was too dangerous to have them. The court appears likely to uphold the 1994 law prohibiting dangerous individuals involved in domestic abuse cases from obtaining and possessing guns. Rarely has the Supreme Court been handed a case with so little nuance.

But this case was brought to the court because of its own far more sweeping decision last year in New York State Rifle & Pistol Association Inc. v. Bruen. In that case, the court ruled 6–3 that a gun law is unconstitutional unless similar laws existed in the era of the Constitution’s framing. There were no bans on gun possession by domestic abusers in 1791. Domestic abuse was not part of the cultural consciousness, and women were considered property. If we go looking for an analogous law, as Bruen requires, we will come up empty. When the Fifth Circuit Court of Appeals heard the Rahimi case, its logical conclusion was that Bruen had made the 1994 law unconstitutional, so it overturned it.

Judging by the questions justices asked in the Rahimi arguments, the Supreme Court seems to have glimpsed the absurdity of its earlier decision and is now seeking to limit the damage. We might breathe a sigh of relief.