“A federal law that prohibits people subject to domestic violence restraining orders from possessing firearms is unconstitutional,” a three-judge panel of the Fifth Circuit Court of Appeals ruled on Thursday, February 2, 2023 (read story here).
The Fifth Circuit, which is based in the Deep South, is the most conservative of the federal appeals courts (details here). Of the three judges in question, two were appointed by Trump, one by Reagan.
Relying on a crackpot theory laid out by Supreme Court conservatives last year that gun laws must “have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing,” the Three Stooges judges wrote, “Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted.”
In the case before the Fifth Circuit, prosecutors argued that a defendant who was under a restraining order after assaulting his ex-girlfriend falls under “17th-and 18th century regulations that disarmed ‘dangerous’ persons,” but the judges disagreed. “The purpose of these ‘dangerousness’ laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another,” they said.
Extrapolating, that suggests these guys can’t have guns, but this guy can, based on how conservatives define persons dangerous to social order.
It’s common practice for federal appeals courts to manage workloads by assigning cases to three-judge panels; usually a review by the full court can be requested, and I suspect that will happen here. So maybe it’ll get straightened out in the Fifth Circuit. But then again, maybe not.
A Texas law professor reacted to the three-judge ruling by saying the Supreme Court needs to clarify what it means. He added, “One of two things is true: Either this kind of blind, rigid, context-free, and common-sense-defying assessment of history is exactly what the Supreme Court intended … or it isn’t.” My guess is it is.
In any case, if that ruling stands, it means our country’s conservative judges are siding with the people who do what’s shown in the photo below. We can tolerate such judges if they’re in a minority and will be overruled if they make stupid decisions like this one. The problem is a majority of the Supremes are now crackpots, too, thanks to Republican politicians like Trump and Mitch McConnell (and the other GOP senators who confirmed them).
Nothing in the Constitution says it has to be read as it was in 1781, but if 21st-century judges are going to slavishly go by what they’re guessing the Framers meant (and assume they all meant the same thing), then it makes no sense to apply that to 2023 weapons.
It’s absolutely crystal-clear the Framers did not mean citizens have a right to keep and bear AR-15s and Glock semiauto pistols. If you insist on applying the 2nd Amendment according to its 1781 meaning, even ignoring the “well-regulated militia” language, at most it refers to flintlock muskets and pistols. The crackpots at the Fifth Circuit (and Supreme Court, for that matter) have offered no explanation of why they think the Framers intended for citizens to have 21st century firearms.
Since we’re discussing the Framer’s intentions, it’s worth mentioning that in 1781 much of the U.S. population were backwoodsmen who taught their kids to shoot as soon as they could walk; or at least that’s the legend handed down to us by 20th-century Disney Corp. balladeers.
For these judges, the theme song of a 1950s TV series is as good a legal authority as any, and if they’re serious about basing our gun laws on the historical analogies depicted between breakfast cereal commercials, then it follows that first-graders have a constitutional right to take loaded guns to school and don’t break any laws until they shoot the teacher.
Where this might go is voters may get fed up with this crap, throw the party responsible for it out of office, and elect supermajorities in Congress and state legislatures who will deal with the gun violence problem that conservative judges have swept under the rug by repealing the 2nd Amendment.
If it finally comes to that, the gun nuts won’t be able to say they didn’t ask for it.
