In District of Columbia v. Heller, the 2008 case finding that the Second Amendment protects an individual right to bear arms, the court asserted that “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill.” In concurring opinions in Bruen, Justices Samuel A. Alito Jr. and Brett M. Kavanaugh made similar assurances.
Other courts — the government cited 120 post-Bruen cases — have relied on that to find the federal ban on felons possessing firearms passes constitutional muster. [US District Judge Carlton] Reeves disagreed, as did the full U.S. Court of Appeals for the 4th Circuit in a ruling last month involving old, nonviolent offenses. The government, Reeves said, had failed to meet its burden of proving, as required by Bruen, “that there is a historical tradition of disarming either the violent or the dangerous.”
Among the issues judges will now have to decide, Reeves noted: Does the ban on felons possessing firearms cover all felonies in the modern penal code or just those that existed at the founding? Does the felon ban cover all felonies or just crimes involving violence? Is it temporary or does it last a lifetime? In other words: Bruen has created quite the mess. The justices might launch the cleanup — or make things even messier — next term; on the final day of this term, they agreed to hear a challenge to another part of federal gun law, preventing those subject to domestic violence restraining orders from having guns.
But Reeves, having trashed Bruen and then followed it, wasn’t done. He went on to question the court’s seemingly skewed priorities — elevating the Second Amendment to its meaning two-plus centuries ago above others to which it applies a far more cramped reading.
“We have one Constitution. All of it is law. It has been enforced today as best as this Judge can discern the Bruen Court’s holding and reasoning. And, one hopes, a future Supreme Court will not rest until it honors the rest of the Constitution as zealously as it now interprets the Second Amendment.”
Then he turned to originalism, questioning whether “founding-era Americans collectively agreed that for time immemorial, their descendants would be bound by the founding generation’s views on how the Constitution should be read” and whether “ceding this much power to the dead hand of the past is so wise.”
— Ruth Marcus in How Long Will Americans Put Up With the Court’s Originalism?
