The Weekly Sift

It’s June, so I continue to write about the Supreme Court. This week I’m focusing on the Rahimi case, which hasn’t gotten a lot of press, largely because it came to a common-sense conclusion that doesn’t make good clickbait: The Second Amendment doesn’t give domestic abusers an unfettered right to have guns.

It was an 8-1 decision with only corrupt Clarence Thomas taking the side of domestic abusers. Nobody really expects Thomas to make sense, so the mainstream press didn’t see a lot to write about.

I found the case fascinating from another point of view: What’s going to happen to originalism? The late Justice Scalia developed originalism when he was in the minority, and it gave him a theoretical framework for criticizing more liberal ideas about interpreting the Constitution. Only recently, though, has the Court had a clear originalist majority, which faces the challenge of turning Scalia’s critical theory into a governing theory.

The Rahimi case follows from the Bruen case decided two years ago on originalist grounds: Any current law has to be in accordance with “the Nation’s historical tradition of firearm regulation”. But the Founding era didn’t consider domestic abuse to be a problem — wives are just women, after all — so there is no “historical tradition” of disarming abusers. The obvious originalist conclusion, which the conservative Fifth Circuit came to, is to give Rahimi’s guns back and wait to see whether he kills the estranged mother of his child.

But five of the Court’s six conservative justices decided to step back from that abyss. Four of them felt a need to write their own opinions justifying that move. I’d been meaning to write an abstract piece about originalism anyway, so this gave me a lot to work with. The result is “The Limits of Originalism”, which I’ll try to get out by 10 EDT.

The weekly summary will cover the cases still to be decided in the next week or so, the upcoming Biden/Trump debate, Biden’s slight momentum in the polls, Louisiana’s law to display the Ten Commandments in classrooms, Reggie Jackson’s moving and disturbing account of the racism he faced in the minor leagues, and a few other things. I’ll try to get that out by noon, but I seem to be moving slowly this morning.