Archives for category: Guns

Jim Hightower is an old-fashioned Texas liberal. He tries to understand what’s happened to his state in his blog. The GOP is just plain mean and crazy.

He writes:

If you think the GOP’s Congress of Clowns represents the fringiest, freakiest, pack of politicos that MAGA-world can hurl at us – you haven’t been to Texas.

It’s widely known, of course, that Ted Cruz, Greg Abbott, and most other top Republican officials here are obsequious Trump acolytes. Thus, Texas is infamously racing against Florida to be declared the stupidest, meanest, most-repressive state government in America, constantly making demonic attacks on women’s freedom, immigrants, voting rights, public schools, poor people, and so on. But I’m confident Texas will win this race to the bottom for one big reason: GOP crazy runs extraordinarily deep here.

We have a county-level layer of ultra-MAGA cultists constantly pressing the state’s far-right officials to march all the way to the farthest edge of extremism – then leap into absurdity. Therefore, the party officially supports abolishment of labor unions, elimination of the minimum wage, privatization of social security, legalization of machine guns, and… well, you get the drift. Now, though, local mad-dog Trumpistas are pushing their party straight into the abyss of autocracy by declaring war on H-E-B.

What’s that? H-E-B is a Texas chain of supermarkets beloved in communities throughout the state. “Beloved,” because the stores fully embrace the rich diversity of all people in our state, has affordable prices, values employees, and supports community needs.

Nonetheless, county Republican zealots screech that H-E-B violates their party ideology by accepting food stamps, opposing privatization of schools, and (horrors!) sponsoring some LBGTQ pride events. So, they’re demanding official condemnation of the grocery chain for – GET THIS – “advocating for policies contrary to the Republican Party of Texas platform.”

Yes, violating the party platform is to be criminalized. It’s the reincarnation of Orwell’s Nineteen Eighty-Four: Be MAGA… or else.

Two different juries in Michigan convicted the parents of a school shooter. James and Jennifer Crumbley were both found guilty of involuntary manslaughter and were sentenced to 10-15 years in prison. Their son Ethan murdered four other students and wounded several others and a teacher at Oxford High School in Oxford, Michigan.

CNN reported:

James purchased the firearm for his son on Black Friday, four days before the shooting. The next day, Jennifer took her son to the firing range for target practice. “Mom & son day testing out his new Xmas present,” she wrote afterward on social media. The parents failed to properly secure the firearm, as James Crumbley hid it in their bedroom but did not use any locking device, the prosecution argued.

In addition, the trials focused on a pivotal meeting between school employees, Ethan and his parents on the morning of the shooting. Ethan had been called into the school office after he made disturbing writings on a math worksheet, including the phrases “blood everywhere” and “my life is useless” and drawings of a gun and bullet.

The school employees recommended the parents immediately take him out of class and get him mental health treatment, but they declined to do so, saying they had work. The Crumbleys also did not mention to the school the recent gun purchase. Afterward, Ethan was sent back to class. About two hours later, he took the gun out of his backpack and opened fire at the school.

This was apparently the first time that parents have been held accountable for their child’s crimes.

Do you approve? I do.

Do you think other parents might be more responsible in the future? I wish so but I doubt it. I recall that the mother of the Sandy Hook murderer bought him an AR-15, took him to target practice to teach him how to use it. He was mentally ill. She was the first one he killed on the day of the massacre. He shot her in the face while she was still in bed. He then went to Sandy Hook Elementary School and killed 26 people, including 20 children, ages 6 and 7, and six staff members.

Nonetheless, parent accountability for the crimes of their minor children is a step forward. In a sane country, access to deadly weapons would be restricted. In most of this country, there are no limits on buying and carrying guns, thanks to the Republican Party and the Supreme Court, the NRA and the Federalist Society.

Human life is cheap in a fun-loving society.

Colorado has been the site of some high-profile mass murders. One thinks of the massacre at Columbine High School in 1999, which involved 15 deaths plus the two shooters. The massacre at a movie theatre in 2012 in Aurora, which involved 12 deaths. The massacre at a supermarket in Boulder, where 10 people died. Five people died at a gay nightclub in Colorado Springs in 2023. Curtailing access to guns may be one way to limit future killers.

The Denver Post reports:

Colorado would ban the sale, transfer and importation of so-called assault weaponsunder a bill introduced Tuesday in the state House.

The measure, HB24-1292, is similar to legislation that a House committee killed last spring in its first hearing, but this year’s version may have better chances. The new bill would define assault weapons as including semi-automatic rifles and pistols with fixed large-capacity magazines or the ability to accept detachable magazines, along with several other types of high-powered firearms.

It would not ban the possession of the weapons but would prohibit the “manufacturing, importing, purchasing, selling, offering to sell or transferring” of them, with exemptions for police and the military. It also would prohibit the possession of rapid-fire trigger activators, Seth Klamann reports.

The Justice Department recently released a lengthy report on the massacre of 19 students and two teachers in Uvalde, Texas, on May 24, 2022.

The report concluded that teachers and students have more training about how to react to an active shooter than the nearly 400 law enforcement officers who converged on the school. No one was sure who was in charge. The children had been trained to be silent, and they were. The officers assumed that the silence meant that the shooter was barricaded in an empty classroom, despite numerous 911 calls by terrified students. For over an hour, no one confronted the killer. The mistakes cost lives. When the killer was dead, the medical response to the situation was bizarre. Dead children were placed in ambulances, while children with gunshot wounds were loaded onto school buses.

ProPublica and the Texas Tribune published and summarized the findings:

UVALDE, Texas — Law enforcement agencies across the country should immediately prioritize active shooter training, U.S. Attorney General Merrick Garland said Thursday as he released a scathing report about the handling of the 2022 massacre in Uvalde, Texas, in which lives could have been saved if training protocols had been followed.

The Justice Department’s long-anticipated report about the shooting found that “cascading failures of leadership, decision-making, tactics, policy and training” led to the bungled response, which Garland said should never have happened. Nineteen children and two teachers were killed on May 24, 2022.

“Had law enforcement agencies followed generally accepted practices in an active shooter situation and gone right after the shooter to stop him, lives would have been saved and people would have survived,” Garland said during a news conference on Thursday.

The report’s findings about the failure to follow protocol and the lack of sufficient training to prepare officers for a mass shooting largely mirrored the flaws revealed in a Texas Tribune, ProPublica and FRONTLINE investigation published last month that found that states require students and teachers to receive far more training to prepare them for a mass shooting than they require for the police. At least 37 states require schools to conduct active-shooter-related drills, nearly all on an annual basis. But Texas is the only state that mandates that all of its police officers complete repeated training, at least 16 hours every two years. That requirement was implemented after the Uvalde shooting.

Garland said the report was produced in an effort to offer lessons that would hopefully better prepare law enforcement across the country to respond to future mass shootings. It offered recommendations that included requiring all agencies in a region to train together and providing officers across the country with at least eight hours of active shooter training annually.

The vast majority of at least 380 officers from about two dozen local, state and federal agencies who responded to the school had never trained together, “contributing to difficulties in coordination and communication,” the report stated.

“Our children deserve better than to grow up in a country where an 18-year-old has easy access to a weapon that belongs on the battlefield, not in a classroom,” Garland said. “And communities across the country, and the law enforcement officers who protect them, deserve better than to be forced to respond to one horrific mass shooting after another. But that is the terrible reality that we face. And so it is the reality that every law enforcement agency in every community across the country must be prepared for.”

Mo Canady, executive director of the National Association of School Resource Officers, said in an interview that he appreciates the emphasis the Department of Justice placed on widespread active-shooter training. Still, Canady said he is frustrated that leaders have not already learned that “25-year-old lesson” after the shootings at Columbine High, Sandy Hook Elementary and Marjory Stoneman Douglas High School.

Since the 1999 Columbine shooting, law enforcement officers have been trained to prioritize stopping the shooter. The report stated that everything else, including officer safety, should be secondary, adding that efforts to engage the shooter “must be undertaken regardless of the equipment and personnel available.”

“We’ve got to understand what the priorities are and, quite frankly, I see there are not a lot of priorities greater than keeping students safe at school,” Canady said.

Kimberly Mata-Rubio, whose 10-year-old daughter Lexi was killed in the shooting, said she hopes the report’s findings lead to action, that “the failures end today and that local officials do what wasn’t done that day, do right by the victims and survivors of Robb Elementary: terminations, criminal prosecutions and that our state and federal government enacts sensible gun laws…”

The district attorney and the Texas Department of Public Safety have fought the release of records related to the shooting, prompting news organizations, including ProPublica and the Tribune, to sue. A Travis County district judge ruled in the newsrooms’ favor last month, but DPS appealed. The agency did not respond to requests for comment about the Justice Department’s report.

Texas Gov. Greg Abbott, who initially praised the response and later said he was misled, released a statement thanking the Justice Department. He said the state has already adopted some of the recommended measures and would review others.

The report, which offers the most comprehensive account to date from authorities about the shooting, echoes many findings from a probe released by a state House committee two months after the shooting…

The report noted that the “misguided and misleading narratives, leaks, and lack of communication about what happened on May 24 is unprecedented and has had an extensive, negative impact on the mental health and recovery of the family members and other victims, as well as the entire community of Uvalde.”

The previous mayor of Uvalde requested the federal review days after the shooting when it became clear that the response was flawed. The review was led in part by Sheriff John Mina of Orange County, Florida, who was the incident commander during the 2016 Pulse Nightclub massacre in Orlando.

An outside review of that incident found that Florida officers, who waited three hours to take down the shooter, mostly followed best practices, although it stated that the law enforcement agencies in Orlando should update their training and policies.

In multiple after-action reviews, including the Pulse report, authors opted not to criticize significant law enforcement delays during mass shootings, according to an analysis of more than three dozen of these reports by ProPublica, the Tribune and FRONTLINE.

The Uvalde report was far more critical, finding failures in leadership, command and coordination.

It stated that officers wrongly treated the situation as a barricaded suspect incident instead of one in which a shooter was an active threat to children and teachers. Officers should “never” treat an active shooter with access to victims as a barricaded suspect — especially in a school, where there is a “high probability” of potential victims and innocent civilians being present, the report stated.

Officers had multiple indicators that should have made it clear they were facing an active shooter, including 911 calls from children and teachers pleading for help, a dispatcher’s announcement minutes after officers arrived that students were likely in the classroom with the shooter, and an Uvalde school police officer announcing that his wife had called to tell him she had been shot, according to the report.

Gupta condemned the medical response, saying that after police breached the classroom and killed the gunman, dead victims were placed in ambulances while children with bullet wounds were put on school buses. Many of those findings were revealed in a 2022 investigation by the Tribune, ProPublica and The Washington Post that determined medical responders did not know who was in charge and that two students and a teacher who later died still had a pulse when they were rescued from the school.

In its blistering criticism of responding officers, the report said that supervisors from various law enforcement agencies “demonstrated no urgency” in taking control of the incident, which exacerbated communication problems and added to overall confusion.

Uvalde school district Police Chief Pete Arredondo, who was listed as the incident commander in the district’s active-shooter plan, had the “necessary authority, training and tools” to lead the response but did not provide “appropriate leadership, command and control,” the report found. Arredondo could not be reached for comment Thursday through his attorney. He has previously defended his actions and those of others involved in the response.

Beyond that, no leader from any of the other responding agencies “effectively questioned the decisions and lack of urgency” demonstrated by Arredondo and Uvalde Police Department Acting Chief Mariano Pargas, who both arrived at the school within minutes of the first round of gunfire. The report listed Uvalde County Sheriff Ruben Nolasco, Uvalde County Constables Emmanuel Zamora and Johnny Field, and an unidentified Texas Ranger as examples of such leaders.

“Responding officers here in Uvalde, who also lost loved ones and who still bear the emotional scars of that day, deserved the kind of leadership and training that would have prepared them to do the work that was required,” Garland said.

The report also found that key officers, including Pargas, had no active shooter or incident command training despite, in some instances, having decades of law enforcement experience. Nolasco, the sheriff, also had no active shooter training and “minimal” incident command training.

Dan Marburger, who served for almost three decades as principal of the Perry High School, died of the wounds he sustained after being shot by a high school student on January 4.

The high school student killed an 11-year-old sixth grader and wounded several others, then killed himself.

Mr. Marburger gave his life to save the lives of students.

In this country, “gun rights” have more protection than the lives of students, teachers, and principals. Don’t believe those politicians who say they protect “life” but oppose gun control. This is a contradiction or outright hypocrisy. Anyone who values life must demand gun control.

Governor Kim Reynolds ordered state flags to be flown at half-mast. Surely, she also offered thoughts and prayers. Maybe. Don’t count on her to inquire why a high school student had a deadly weapon or to act to make sure that buyers of guns undergo background checks, take training in gun safety, are required to own gun safes, and are subject to red flag laws. But none of that will happen. Expect that she will propose arming teachers and other adults in the school. Metal detectors. Probably, she’ll spend some money on mental health.

But not limiting access to guns.

Eugene Robinson, a columnist for the Washington Post, watched the Iowa debate between Ron DeSantis and Nikki Haley, sparing the rest of us of that burden. He reported on their despicable dodge about the recent killing of a sixth grade student in the school cafeteria.

He wrote:

Ron DeSantis and Nikki Haley did not just lose Wednesday night’s debate. They have lost their way.

At Perry High School in Iowa last week, 17-year-old Dylan Butler shot and killed a sixth-grader, wounded five other students and staff, and then killed himself. Surely, the Republican presidential candidates discussed the tragedy during their debate in Des Moines, right?

Wrong. Neither said a word about a school shooting that had happened just days earlier and barely 40 miles away.

Anyone still searching for a meaningful difference between today’s Democratic Party and the GOP need only take note of their very different reactions to this latest tragedy.

Deadly shootings, even in our schools, are an inevitable feature of our daily lives — according to the Republican Party. In comments and appearances before the debate, the leading GOP candidates all reacted to the Perry shooting by washing their hands of any duty to act. And, of course, by offering thoughts and prayers.

DeSantis, the Florida governor, said during an interview with NBC News and the Des Moines Register that while officials have a responsibility to guarantee safety at our schools, the federal government “is probably not going to be leading that effort.” As though to underscore the point, he later said, according to Reuters, that as president he would sign a bill eliminating the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Haley posted her condolences on X, formerly known as Twitter, shortly after the shooting, saying in part that, “My heart aches for the victims of Perry, Iowa and the entire community.” Later that day, the former U.N. ambassador and South Carolina governor said that “we have to deal with the cancer that is mental health,” called for more security officers at schools and went ahead with her campaign schedule.

Meanwhile, former president Donald Trump — expected to trounce DeSantis, Haley and all other comers in Monday’s Iowa caucuses — addressed school violence during a campaign stop on Friday.

The callousness was breathtaking, even for Trump.
“I want to send our support and our deepest sympathies to the victims and families touched by the terrible school shooting yesterday in Perry, Iowa,” he said in Sioux City. “It’s just horrible, so surprising to see it here. But we have to get over it, we have to move forward.”

Get over it. Imagine the comfort that must have brought to the family of 11-year-old Ahmir Jolliff, who was killed in the shooting.

The Republican Party’s lack of empathy after a tragedy such as this gives the country a real chance to see why that matters for our country’s leadership — and what a real difference the Democrats offer.

On Thursday, the day after Republicans’ dismal debate, Vice President Harris visited a middle school in Charlotte to join a roundtable discussion on gun violence with Education Secretary Miguel Cardona. That’s where she announced the administration’s plan to invest a new round of funding ($285 million) for schools to find and train mental health professionals, per a White House official.

Harris shared her reaction to the Perry shooting on X the day it occurred, highlighting some of the proposals Democrats have been trying to pass:
“As we begin a new year, we must resolve to finally end this epidemic of gun violence that has become the leading cause of death for children in America. We know the solutions: making background checks universal, passing red flag laws, and renewing the assault weapons ban. Now, Congress and state legislators across the country must have the courage to act.”

Open the link to read the rest of the column.

The following story was published by The Denver Post:

A man shot through a window and broke into the Colorado Supreme Court building early Tuesday morning and caused “significant and extensive” damage in several areas of the building before surrendering to police, according to the Colorado State Patrol.

The man was involved in a crash about 1:15 a.m. near 13th Avenue and Lincoln Street a short time before he forced his way into the Ralph L. Carr Colorado Judicial Center, which houses the Colorado Supreme Court, the Colorado Court of Appeals and several other state agencies, according to a Colorado State Patrol news release.

This comes two weeks to the day after the state Supreme Court ruled Donald Trump cannot appear on the state’s primary ballot based on his actions surrounding the Jan. 6, 2021, U.S. Capitol breach and riot by his supporters, Jacob Factor reports.

A few weeks ago, a federal district judge overturned California’s new law banning guns in many public places, saying that the law was “repugnant” and violated the Second Amendment. Today, a federal appeals court put the lower court ruling on hold, allowing the law to go into effect.

Reuters reported:

Dec 30 (Reuters) – A federal appeals court on Saturday cleared the way for a California law that bans the carrying of guns in most public places to take effect at the start of 2024, as the panel put hold a judge’s ruling declaring the measure unconstitutional.

The 9th U.S. Circuit Court of Appeals suspended a Dec. 20 injunction issued by a judge who concluded the Democratic-led state’s law violated the right of citizens to keep and bear arms under the U.S. Constitution’s Second Amendment.

The three-judge panel issued an administrative stay that temporarily put the injunction on hold until a different 9th Circuit panel could consider pausing the lower-court judge’s order for even longer while the litigation plays out.

“This ruling will allow California’s common-sense gun laws to remain in place while we appeal the district court’s dangerous ruling,” California Governor Gavin Newsom, a Democrat, said in a statement…

The measure, which is set to take effect on Monday after Newsom signed it into law in September, was enacted after a landmark ruling in June 2022 by the conservative-majority U.S. Supreme Court that expanded gun rights nationwide.

The Supreme Court in that case struck down New York’s strict gun permit regime and declared for the first time that the right to keep and bear arms under the Second Amendment protects a person’s right to carry a handgun in public for self-defense.

Under California’s new law, people could not carry concealed guns in 26 categories of “sensitive places” including hospitals, playgrounds, stadiums, zoos and places of worship, regardless of whether they had permits to carry concealed weapons.

The law, Senate Bill 2, also barred people from having concealed guns at privately owned commercial establishments that are open to the public, unless the business’s operator posts a sign allowing license holders to carry guns on their property.

Open the link to read the article in full.

Governor Gavin Newsom and the California legislature crafted a gun law intended to limit the places where it was legal to have a gun. That law was struck down by a federal judge who said it was “repugnant” and stripped gun owners of their rights. The judge referred to the Supreme Court’s Bruen decision last year that overturned New York state’s strict gun laws.

Let’s get this right: Restricting guns is repugnant but mass murders are not. Or, maybe mass murders are less repugnant than restricting the right to carry a gun almost anywhere.

The Los Angeles Times reported:

A new California law that would bar licensed gun holders from carrying their firearms into an array of public places will not go into full effect on Jan. 1 as scheduled, after a federal judge blocked major parts of it as unconstitutional Wednesday.

The law, Senate Bill 2, was part of a slate of new gun control measures passed this year by California Democrats in response to two things: a sweeping U.S. Supreme Court ruling that reined in gun control measures nationally last year, and several high-profile mass shootings in the state this year — including in Half Moon Bay and Monterey Park.

In his decision to block the law Wednesday, U.S. District Judge Cormac J. Carney wrote that the law’s “coverage is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court.”

Gov. Gavin Newsom, who signed the bill into law and has called for tougher gun restrictions in the state and at the national level, immediately swung back with his own statement in defense of the measure.

“Defying common sense, this ruling outrageously calls California’s data-backed gun safety efforts ‘repugnant,’” Newsom said. “What is repugnant is this ruling, which greenlights the proliferation of guns in our hospitals, libraries, and children’s playgrounds — spaces which should be safe for all.”

California Atty. Gen. Rob Bonta, in his own statement, said Carney “got it wrong,” and the state will appeal his decision to a higher court.

The law would have precluded licensed gun carriers from having their firearms on public transportation, at public gatherings and special events, in parks and at playgrounds, in stadiums, arenas and casinos, in medical facilities, religious institutions or financial institutions, anywhere that liquor is sold and consumed, in all other private commercial spaces where the owner has not explicitly posted a sign to the contrary, and in many parking areas, among other places.

Democrats had championed the law as a workaround to the Supreme Court’s decision in New York State Rifle & Pistol Assn. vs. Bruen last year, which held that sweeping restrictions on licensed gun holders to carry their weapons in public were unconstitutional, in part because they stripped those people of their constitutional right to self-defense.

The Bruen decision made certain exceptions, including for bans on guns in certain “sensitive places” that historically had been protected from gun holders — such as in schools and courtrooms. State Sen. Anthony Portantino (D-Burbank) introduced SB 2 as a means of extending the list of “sensitive places” under California law.

The law was to apply to concealed-carry permit holders in major metropolitan centers such as Los Angeles but also to open-carry permit holders in rural, less populated parts of the state.

In his ruling Wednesday, Carney, an appointee of President George W. Bush, said the new law went too far — as the “sensitive places” exception cited by the Supreme Court had to do with relatively few, historically restricted places, not most public spaces in society.

He said an injunction against the law taking effect as litigation in the case continues was warranted because those suing the state over the measure are likely to win their case and would suffer “irreparable harm” if they weren’t allowed to carry their firearms in the meantime.

That last line is rich. Gun owners will suffer “irreparable harm” if they can’t bring their gun to a hospital or church or a public park or a playground.

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.