Filipovic: Originalism Makes Banning Guns Much Too Difficult

Angry woman pop art retro vector illustration. Comic book style imitation.

For all that Heller did to rewrite the modern interpretation of the Second Amendment, Scalia’s opinion still didn’t go quite far enough for the most aggressive gun rights activists. It did not, for example, offer a clear path for courts to evaluate (and strike down) other gun laws. So lower courts implemented a test for those new laws, looking at what legislatures intended with any particular gun law and whether the burdens that that law imposed were out of proportion to the important public safety interests at hand.

But this, an even more conservative Supreme Court said in 2022’s New York Rifle and Pistol Association v. Bruen, was wrong; instead, the court held that “to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.” In addition to establishing this new, almost-impossible-to-meet standard, the Bruen case struck down the New York law, which was from 1911. A 111-year-old law was, apparently, not itself evidence of the nation’s historical tradition of firearm regulation. (The court didn’t bother to tell us what time frame does count, except that everything after 1900 is irrelevant.)

And so this is where we are: Any efforts to regulate 21st-century weapons in 21st-century America must have very old historical equivalences: “A distinctly similar historical regulation” is evidence that a gun law may be constitutional. But “if earlier generations addressed the societal problem, but did so through materially different means,” that might be evidence that new gun regulations are not in fact constitutional.
This is crazy-making and stymies any effort to create better laws to address long-standing problems, such as the proliferation of semiautomatic weapons that kill so many Americans each year. The court seems to be saying that the apocryphal Einstein adage about the definition of insanity—doing the same thing over and over and expecting different results—is apparently now the only legitimate way to regulate guns in the U.S.

— Jill Filipovic in Originalism Is One Reason Why America Has Such a Gun Problem

3 Responses

  1. definition of insanity—doing the same thing over and over and expecting different results
    Kinda like all the gun control they’ve passed over the decades resulting in no reduction in crimes, injuries or deaths, huh?

    1. The ones that believe it will help crime may be crazy, the ones that want power are very clear on goals and necessities.

  2. “…semiautomatic weapons that kill so many Americans each year.”
    These nefarious weapons accomplish this by hiring people to point them at other people and pull their triggers.
    All we have to do is freeze the accounts of all semiautomatic weapons.
    This will work because such weapons do not have fingers (otherwise they could pull their own triggers) and therefore cannot handle cash.

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