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Guest editorial: Upcoming gun case will again test which century this Supreme Court lives in

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Supreme Court Long Arguments

An American flag waves in front of the U.S. Supreme Court building in Washington, D.C.

The U.S. Supreme Court last year issued a potentially devastating ruling for communities beleaguered by gun violence, striking down New York’s law regulating concealed weapons in public.

The ruling employed the legal theory of constitutional originalism: interpreting the Constitution based strictly on the original understanding of its text at the time it was adopted.

Lower courts have since applied this standard to rule that restraining orders for domestic violence can’t bar individuals from obtaining weapons, and that it’s OK to file the serial numbers off guns — since neither domestic violence protections nor the modern law-enforcement tool of serial numbers existed when the Constitution was written in 1787.

These and other rulings highlight how unworkable it is to hobble modern gun policy based on standards of the muzzle-loading-musket era. With the high court now set to consider a newly approved, scaled-back New York gun statute designed to withstand the court’s scrutiny, America will soon see if there is any way to talk the court’s conservative majority off this dangerous ledge.

That danger was manifest not just in the court’s New York gun-law decision but also in its decision overturning Roe v. Wade last year. In its eagerness to rip away women’s constitutional right to abortion — based in part on this same widely disputed theory of originalism — the conservative majority so disregarded precedent and judicial restraint that even concurring Chief Justice John Roberts chided his colleagues for overreaching.

Justice Clarence Thomas, on the other hand, thinks the court should be going further down the originalist path. In his own concurring opinion on the abortion ruling, Thomas didn’t stop with embracing the dystopian premise that women’s abortions rights today should be girded by societal standards in place long before women were even allowed to vote. He took it a step further, noting that contraception and same-sex relationships were also not legally protected rights when the Constitution was ratified, and suggested those are rights the court should be reconsidering.

It was Thomas who wrote the majority opinion in last summer’s New York State Rifle & Pistol Assn. v. Bruen, which not only invalidates New York’s conceal-carry restrictions but declares that any gun law, anywhere, might be deemed unconstitutional unless it has “historical analogues” from when the Second Amendment was ratified — in 1791. Justice Stephen Breyer, in his dissent, noted the obvious: “Laws addressing repeating crossbows … and other ancient weapons will be of little help to courts confronting modern problems.”

There are few modern problems more pressing than America’s gun-violence crisis. The Founders would perhaps find it odd that their stated intent in the Second Amendment — to allow for “well-regulated” state militias — has been interpreted by today’s Supreme Court to prevent communities from protecting the public against criminals and lunatics armed with weapons that would have been unimaginable in the 18th century.

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