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Since then, Second Amendment advocates have brought all manner of challenges to state and federal gun laws across the country, plunging the lower courts into conflicting conclusions about how precise the analog has to be.
Former Deputy Solicitor General Michael Dreeben, who was in charge of the Justice Department’s criminal appeals docket for 24 years, says there is a good reason there is no precise analog from the 1700s.
“I think there’s a certain whistling past the judicial graveyard, if you will,” says Jerry Beard, a former assistant federal defender in Texas, who served in the office that is representing Rahimi.
Dreeben sees the dangers as far more imminent if the court strikes down the law banning guns for those covered by domestic violence protective orders.
More generally, Dreeben says, a decision against the federal law could cast doubt on an a network of prohibitions enacted by state and local governments that have been shown to be even more effective because of their greater breadth.
In 2019, Barrett dissented when the Seventh Circuit Court of Appeals upheld the law banning convicted felons from possessing guns.
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This sounds like the trolly problem. If you go down track A, then there are likely to be some horrible family murders. Or track B you will upset the NRA crowd.
… Wow this Rahini guy does sound like a poster child for this law, but
ultimately the Fifth Circuit Court of Appeals ruled that the law is unconstitutional because there was nothing like it in the 1790s
Which is funny, since firearms were often very strictly controlled in many places throughout the 18th century and earlier. It’s not that they aren’t aware of gun control from the 1790s, it’s that they don’t actually care.
When the supreme court shredded a New York gun control law last year (a law that had stood for a century), their reasoning was unless a gun regulation or something very similar to that regulation was already in place at the time the bill of rights was written, then it is not allowed based on their interpretation of the second ammendment. As the dissenting justices pointed out, this of course, is crazy, and if actually applied like how they said it would invalidate pretty much any gun control we still have that hasn’t been taken away already. And isn’t similar at all to how we look at standards for other things in the bill of rights.
So honestly the fifth circuit is probably correctly applying this reasoning here, and many gun laws are in court over this new standard. This was a standard created by the Supreme Court last year though, the fifth circuit didn’t pull it out of their ass this time. But like any of this “originalist” nonsense they aren’t gonna apply it consistently, just when it suits them. I would expect the supreme court to let this law stand this time to avoid yet another very unpopular decision highlighting their extremist second amendment interpretations, even though it doesn’t live up to the ridiculous standard they created last year. Expect them to start applying that standard again capriciously at any time though.
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Unfortunately they’ve either learned nothing, or are more than happy to let it happen again - this time with the military. By 2026 or so there’s a very real chance that the military will be full of far right appointees that have no qualms about using nuclear weapons on population centers, carrying out genocides, employing the military against the American people, etc. etc. Just like the judiciary in 2014-2016, the military is full of vacancies waiting for the next far right president to fill overnight as soon as he takes power.
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Well, they did recently finally push through some promotions, and Tuberville’s response was basically ‘see, they could push through promotions any time they want, don’t blame me for holding things up’.
Point well made though, the military should be ready for their duties, and it’s time to say they’ve given Tuberville all the time they can and just push ahead.
Track B also opens up all manner of other 14A abuses, since this law involves no due process.
I’m sure this would be a hot take, but I’m not a fan of implementing punishments after we already put people in prison and had them serve their time. If you don’t think they have reformed, then fix the prison time and the reform process. The whole point of the prison system is to have them serve time until they are rehabilitated.
Obviously, this is not working in his case, and the prison system needs massive reforms. But, the solution is not to add more punishments after his prison time. Constitutionally, he is granted his rights back when he served his sentence.
Anybody with even a passing understanding of constitutional law would know how obviously unconstitutional this is. For fuck’s sake, even the ACLU points out the inconsistency:
But Cole points out a different flaw in the government’s argument. “The notion that any right is limited to law abiding, responsible citizens seems to me really odd,” he says. “You don’t have to be a law abiding responsible person to have First Amendment rights, Fourth Amendment rights, Fifth Amendment rights.”
