Has the U.S. Supreme Court stripped away all limits on the right to buy and carry arms? We are soon to find out, as the Court just heard a case challenging restrictions on domestic violence abusers. A federal appeals court decided that even violent people should have the right to bear arms, because that is what the Founders wanted. Some states allow open carry of weapons; some require no background checks for purchasers. We may soon be living in the “O.K. Corral,” where shootouts are a common occurrence.

Rachel Barkow of the website CAFE analyzes the case and the likely ruling of the High Court. Barkow is a professor at the New York University School of Law, specializing in criminal law.

She writes:

Since 2008, there has been no greater obstacle to confronting America’s epidemic of gun violence than the Supreme Court. That was the year five justices on the Court decided the Heller case, which held, for the first time in the country’s history, that the Second Amendment of the Constitution protected an individual’s right to bear arms and was not, in spite of its plain language, cabined to protecting the collective right of a militia to bear arms. The Court’s majority claimed its view was consistent with the original meaning of the clause, but legal historians have demolished that claim. The Court’s decision was instead the product of an orchestrated campaign by the National Rifle Association over decades to shift opinion on the Constitution’s meaning. Heller was the culmination of those efforts and the decision drastically curtailed the ability of voters to limit gun possession because it entrenched a constitutional right to possess firearms. The actual holding of Heller covered only the ability to possess a gun inside one’s home for self-defense, but it was just the first step in the Court’s takeover of gun policy.

Despite widespread criticism by legal scholars and historians of the Court’s interpretation of the Second Amendment, the Court (pardon the pun) stuck to its guns. Last Term in Bruen, the Court expanded the scope of the Second Amendment by striking down a New York law that required people to show “proper cause” to get a permit to carry guns for self-defense in public. That decision not only expanded the right to bear arms to include carrying a weapon in public, but it also changed the manner in which the Court would analyze Second Amendment claims to make it even harder for sensible gun regulations to survive the Court’s review.

The Court, in an opinion authored by Justice Thomas, rejected the argument that a regulation that covers guns outside the home can be upheld if it promotes an important interest. Instead, “The government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

In other words, no matter how much the government might want to address the scourge of gun violence and mass shootings, its hands are tied by what the Court believes white men in the 18th century would have wanted. Moreover, this is an inquiry that the Court typically gets wrong because it is not a body composed of trained historians, but of lawyers doing back-of-the-envelope history (derisively and accurately referred to as “law office history”) that typically just so happens to yield the very result a majority of justices would like to see.

That is how we have arrived at the surreal moment at the Court on Tuesday in which the justices heard arguments about whether the government can remove guns from domestic violence abusers. That is the issue in United States v. Rahimi, a case out of the Fifth Circuit, a conservative federal intermediate appellate court that covers Louisiana, Mississippi, and Texas. The Fifth Circuit believed it correctly followed the framework from Bruen and struck down a federal law that prevents people subject to domestic violence restraining orders from possessing firearms. To obtain such a restraining order, a court must find, after notice and a hearing, that a person presents a credible threat to their intimate partner or child, and that the order is necessary to protect the partner or child from “domestic gun abuse.”

In a sane world, the question of whether someone should lose access to weapons would turn on the adequacy of the procedures for making that determination and the evidence that the person poses a threat. In the Supreme Court’s world, in contrast, whether someone is stripped of access to guns depends solely on whether the government of the 18th century disarmed similarly situated people. According to the Fifth Circuit, the government’s evidence from the 18th century about taking guns from “dangerous” people was not sufficiently similar, so the federal law could not pass muster.

Will five justices of the Supreme Court agree with the Fifth Circuit that the historical record is too thin to support the domestic violence law? The Court’s three liberal justices will almost certainly side with the government. Justices Kagan and Sotomayor have already expressed their disagreement with the Court’s flawed framework for deciding these issues by joining Justice Breyer’s dissent in Bruen. Justice Jackson was not on the Court in Bruen, but she expressed skepticism about the Bruen framework in her questioning at oral argument in Rahimi. She got to the heart of the insanity of the matter when she asked Rahimi’s lawyer if the Court’s task, in his view, was to look for “the regulation of white Protestant men related to domestic violence,” or if it was possible to take the level of generality up a notch.

The question is whether at least two of the six conservative justices will agree, and all signs from the oral argument are that the government has amassed enough evidence to get five votes to uphold this particular law. Justice Barrett wrote an opinion when she was on the Seventh Circuit that recognized firearms can be removed from dangerous people, and her questions at argument suggested she sees Rahimi as falling into that category. Indeed, she talked about domestic violence as being in the heartland of danger. Justice Gorsuch also gave indications that the facts of this case would survive Second Amendment scrutiny because he kept carving out issues for future cases. It is likely other justices will join this decision as well, given the clear finding of danger under the facts of the case. Even Rahimi’s counsel had a hard time arguing his client was not a danger when asked at oral argument.

It is less clear that there are enough votes to shift the framework for deciding these cases so that the government in 2023 and beyond is not hamstrung by what the government did in the 18th century. Part of the debate at oral argument was over how specific a historical analog has to be to allow a gun regulation today. If the Court does not make clear that governments today can identify threats and dangers – even if the Framing generation did not identify those same threats and dangers – as suitable for disarmament, the government in Rahimi will have won a battle, but not the war, on gun violence. Whether gun regulations survive will depend on what five lawyers on the Supreme Court think.

The Court’s track record in Second Amendment cases does not inspire confidence. The Court got the history of the Second Amendment’s scope wrong in Heller. It is not an individual right but a collective one in the service of militias. The Court then made matters far worse in Bruen by broadening the scope of that right and preventing the government from regulating firearms unless the Framers passed a similar regulation. Everything comes down to an interpretation of 18th century America’s approach to guns, despite the fact that almost nothing about firearms is the same as it was at the time of the framing.

Nor does the Court limit itself to history so rigidly in other contexts. That is what led legal scholar Khiara Bridges to declare “the right to bear arms the most protected of rights in the Constitution.”

The Court’s inconsistent approach to originalism is the reason people can more easily lose their liberty than their right to keep a firearm. Although we are supposed to have a presumption of innocence in America and that is a concept firmly rooted in the original meaning of due process, if you are merely charged with a crime – not convicted – you can be locked in jail, according to the Supreme Court, as long as a judge thinks you are dangerous. No originalist should permit this, as the Framing generation did not condone incarceration on the basis that someone was merely accused of a crime and then deemed dangerous by a judge before conviction. Yet we have hundreds of thousands of people incarcerated on just this basis because the Court has not taken the same strict originalist approach to pretrial detention. We can only ponder why we ended up with a regime that would allow liberty to be taken away so cavalierly, but that treats gun rights as inviolate without a sufficiently precise historical analog.

The Framers were not so foolish as to place greater protections on guns than freedom. But the Supreme Court does not seem to understand the relevant history. Whatever the Court decides in Rahimi, we are a long way from a sensible constitutional framework for thinking about these issues as long as the inquiry will depend on the Court’s faulty historical analysis. Tragically, this is an area where the Court’s law office history is literally killing us.