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Saturday, June 22, 2024

On complaining about mud: a response to Steve

Steve echoes, in his recent post on the Rahimi case, a complaint that we are hearing from some law professors, namely, that the Court has not yet provided a clear (enough) standard for distinguishing firearms regulations that comply with the Second Amendment from those that do not.  I like clarity; I'm kind of a formalist; I generally like "rules" more than "standards" (in law); so, I think I "get" the impulse.  Still, the complaint seems, to me, misplaced. 

Now, to engage the issue, it seems to me, one has to accept the premise that the Second Amendment has something to do with regulations besides those dealing with the National Guard.  Those who profess to hold the view that the Second Amendment provides no protections to -- has nothing to say about -- individuals who wish to own, buy, possess, and use firearms wouldn't seem to have much constructive to say about the doctrinal question presented in a case like Rahimi.  And, it seems to me that, to constructively engage the Court on this matter, one has to accept, if only for the sake of argument, that the Second Amendment's judicially enforceable content has some connection to the "original meaning" of the Second and Fourteenth Amendments.  That is, if one's view is that the answer to Second Amendment questions that come up in courts is "uphold the regulations that are sound policy, and strike down the ones that are not", it doesn't seem to me that there's much point to wrestling with the Court's efforts to announce and apply "originalist" (and capable-of-being-understood-by-regulators-and-lower-courts) doctrines.

So, has the Court dropped the ball? Are things actually "mud"? I'm not sure, but . . . compared to what? It seems unlikely to me that lower courts have less to go on, when it comes to firearms regulations, than they did under, say, the "effects" part of the Lemon test in the 1970s and 80s . . . or most areas of con law, including ones that Rahimi critics like.  The law with respect to cooperation between religious schools and public authorities, for example, is way, way clearer now than it was 40 years ago, but my sense is that this clarity doesn't make most online legal scholars happy. Is the inquiry that Rahimi calls for any "muddier" than the one that, say, all applications of "strict scrutiny" in rights cases call for? (Is the question whether an interest is, or is not, "compelling" any "muddier" than the question whether a particular firearms regulation is meaningfully like a regulation that was accepted at the time of the relevant ratifications?) 

Posted by Rick Garnett on June 22, 2024 at 02:54 PM in Rick Garnett | Permalink


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