n the late 18th century, when the constitution was ratified, men’s abuse of women was penalized by neither custom nor by the law. Men were allowed to beat their wives, their children and any women they held authority over in their personal lives: such beatings were not generally illegal, nor especially frowned upon, but understood as a private prerogative that all men held over the women in their lives.
But the supreme court’s decision in United States v Rahimi also reveals the logical inconsistencies in the foundation of so-called “originalist” legal interpretation, the unworkability of the court’s insistence on historical precedent for every government regulation and the growing divisions among the conservative justices about just what “history and tradition” should mean.
Roberts stressed that the historical test in Bruen was loose enough to allow for some gun restrictions, including those on domestic abusers. It was a mistake, he said, to read Bruen “to require a ‘historical twin’ rather than a ‘historical analogue’.” His reasoning was echoed by Barrett, who advocated for a historical test of what she called “original contours”, one that “looks at historical gun regulations to identify the contours of the right”.
The case is another signal of infighting among the court’s conservatives: they cannot decide what they think “originalism” demands, or what they mean when they say “history and tradition”. The court’s appeal to history has always been selective and pretextual, deployed with little consistency, intellectual honesty or concern for historical accuracy, in order to achieve the preferred policy outcomes of Republican justices.
Source: Law Daily Report (lawdailyreport.net)
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