Re: Anticipated fallout from Bruen; all hail Clarence Thomas

Adam H. Kerman <ahk@chinet.com> wrote:

Don't tell me Clarence Thomas isn't an activist judge. New York Rifle &
Pistol Association v. Bruen (2022) was an activist opinion. Of course
New York had an unconstitutional state law, but this was a due process
case that shouldn't have been decided as a Second Amendment case. Thomas
found the statute unconstitutional with a sweeping, expansion of the
Second Amendment. If it wasn't illegal in era in which the Founders
wrote and passed the Second Amendment, then the gun regulation is
unconstitutional. Apparently all that remains to regulate is fugitive
slaves may not possess guns. . . .

Wow. It seems that the Supreme Court has had second thoughts about the
anticipated fallout from Bruen. United States v. Rahimi was decided 8-1
in favor of the government, so that's everyone else on the Court who had
signed on to Thomas's opinion in Bruen except for Thomas himself.

In Bruen, the constitutionality test of a law restricting guns is whether
there was such a tradition at the time of the founding. The test was
upheld in Rahimi, but modified with a new handwaiving "trapped in amber"
substandard in Roberts' opinion, which means if we are confronted with
the possibility of being dangerous assholes, the law may still be found
unconstitutional.

In 2020, a Texas court entered a protective order against Zachary
Rahimi, who had dragged her girlfriend back to his vehicle, who hit her
head on the dashboard as he forced her inside. He also fired his gun at
a witness to their argument.

Later, police suspected him of a series of shootings, obtained a warrant
to search his home, then seized a rifle and a pistol. He was charged
with violating federal law barring anyone with a restraining order from
possessing a gun.

The Fifth Circuit applied Bruen and found the law to be unconstitutional
due to the government's failure historical law to allow the modern law
to withstand 2nd Amendment scrutiny.

The Supreme Court reversed, finding that there were historical laws
restricting those who threatened others or who had misused firearms from
continuing to possess them.

Thomas disagreed that any of the historical laws were analogous, and
said that someone who hasn't been charged nor convicted of a crime
doesn't lose his Second Amendment rights.

I hope it is absolutely clear as crystal when Roberts' "trapped in
amber" substandard modifies the test in Bruen and when Thomas's objection
applies. I simply love subjective legal tests in applying the
constitution to the facts at hand and the constitutionality of a law.