Friday's Supreme Court ruling upholding a federal law that disarms domestic abusers can be summarized as high-speed doctrinal backpedaling. Chief Justice John Roberts, writing for a very fractured majority of eight, said the law was sufficiently rooted in “history and tradition.” He painstakingly explained that the court’s conservative justices are not wedded to the version of originalism they adopted in their 2022 Bruen decision. That opinion by Justice Clarence Thomas that reimagined judges as amateur historians, striking down every gun restriction that doesn’t have enough “historical analogues” from the 18th and 19th centuries. The new ruling transformed Bruen into something less radical and more practical, but took great pains to paint its decision as a gentle refinement for confused lower courts, reports Slate. Roberts kept the court firmly planted in the gun rights arena, giving policymakers a new test—under the guise of reaffirming the old one—that will spawn all-new confusion. More Second Amendment chaos is around the corner.
Kelly Roskam of the John Hopkins Center for Gun Violence Solutions says the new ruling did not say anything about an additional provision of the law at issue. The federal law prohibits people who are subject to protective orders from possessing guns. Some of these orders are issued after a hearing involving intiimate partners, plus a credible finding of threat. The Supreme Court did not uphold protective orders where there is no credible finding of threat. That issue will percolate up through the courts. Also, the majority did not discuss ex parte or emergency protective orders. Often, when individuals get protective orders, they first get an emergency order that is issued against an alleged abuser before they are given notice, and before they have the opportunity to participate in a hearing. That’s often the most dangerous time for individuals because it’s the first indication that an abuser is losing control over them, Roskam says. Many states also prohibit purchase and possession of firearms during that ex parte protective order period. We’re likely to see cases challenging that as well.