When the Supreme Court significantly enhanced Second Amendment rights last year, the conservative majority said gun regulations could be upheld only if they had a historical analogue tracing to America’s founding in the late 18th century.
But what of a law that strips gun rights from people subject to domestic violence protective orders – when domestic violence wasn’t recognized as a serious problem back then? Not until the late 20th century did states widely adopt laws to protect victims of domestic violence and to hold abusers accountable.
Faced with that reality during oral arguments on Tuesday, some of the justices appeared willing to try to clarify their 2022 milestone ruling that has confounded lower court judges and led to a raft of decisions invalidating firearms laws.
The problem of domestic abuse was in the air as much as any constitutional theory during the 90-minute session. And the nature of the case may guarantee not only that the federal government prevails but also wins some flexibility for judges searching for historical analogues in Second Amendment disputes.
To be sure, the conservative majority did not appear ready to abandon its core emphasis on the history and tradition that led to the Second Amendment in 1791. Rather, some of the justices who joined last year’s decision seemed to accept the federal government’s arguments that lower court judges were at odds over how to follow it, with many too rigidly interpreting the court’s mandate regarding the amendment’s original meaning.
The question now, however, is whether a majority can provide sharper guidance on this second round.
One of the most quoted – but open-ended – lines from Justice Clarence Thomas’ opinion last year in New York State Rifle & Pistol Association v. Bruen was that “analogical reasoning under the Second Amendment is…
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