Hold Your Whoopee

As I write this, the Supremes today decided the Rahimi case in a way that restricts gun rights. There are many who will greet this decision with a loud and boisterous “Whoopee. We finally won one!” Well, hold your Whoopee, fellas. It ain’t that good.

As the old saying goes, there are times when you can win a battle but lose the war. Rahini may very well be one of those times. Rahimi gets to the right destination, but it gets there by taking a road that leads to a very dangerous place.

This Court has wed itself to Constitutional interpretation based on historical tradition. It views our rights in terms of how those rights were viewed when the founders created them. This is ridiculous on many levels, too many to address in this one blog. In Rahimi, though, the Court has taken this ludicrous method an absurd level further. It has made it clear that it will decide cases solely based on the result it wants and not on what their legal analysis should dictate. Remember John Roberts said in his confirmation hearings that he would simply “call balls and strikes.” Today he proved that it hasn’t turned out that way. Today he showed that he will call balls only on the batters he likes and strikes on the batters he doesn’t.

So, what am I talking about? Here’s what. The Court claims that it decided Rahimi based on its historical interpretation guidelines. But it really didn’t. Today the Court said that laws preventing domestic abusers from having guns are O.K. because they are analogous to historical laws in place during the founding of the country. It cites, for example, eighteenth century laws called, “surety statutes.” These laws authorized magistrates to force people suspected of future misbehavior to post a bond. If they refused, they went to jail. If they posted and then misbehaved, they lost their money. The Court said that these laws were  “relevantly similar” enough to the domestic abuser law that they justified finding the domestic abuser laws as constitutional. 

On its face, this analysis makes sense (as long as you accept the absurd notion that we are bound by what a bunch of guys 250 years ago thought). But here’s the problem. This analysis makes no sense when you compare it to what the same Court said in its earlier Bruen case. That was the case where the Court established its Second Amendment historical interpretation rule. In that case the Court struck down a law that required people to give a good reason before they could carry concealed weapons. It said that there was no “historical analog” for a law like that. And here’s the kicker. One of the old laws that they said was not sufficiently similar was – you may have guessed it – surety statutes. Yes, the very statutes used to uphold the domestic abuser law was used to strike down the concealed carry law.

Huh? 

Why would the Court do this? Why would it contradict itself so clearly? Why would it use the same old statute to uphold one law and strike down another? Because preventing domestic abusers from having guns is simple common sense. That was the conclusion that they had to reach. The public confidence in the Court is somewhat lower than its belief in the Flat Earth theory. The Court could not afford to give domestic abusers more guns. Roberts had to call this pitch a ball.

Oh, and one more thing. Had the Court said that the Second Amendment was so broad that it even let domestic abusers have guns, this broad interpretation could have been used by Hunter Biden to say that it was similarly unconstitutional to prevent drug users from having guns. Was that on the Court’s mind? Maybe.

And so, it is apparent that this Court doesn’t decide cases based on even its own rules. It decides cases based on the result it wants to reach. This is not legal interpretation. It’s policymaking – the very thing that the Republican members of the Court claim to abhor. 

When the interpretation of the Constitution depends on such tortured analysis that it can use the same reasons for opposite conclusions; when the Constitution only means what the Orange tinted Justices on the Court want it to mean, we are in big trouble. 

Whoopee? No. Only if you’re sitting on a cushion.