The Bogus Legal Theory Driving America’s Gun Violence Crisis

This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.

By the end of June, the U.S. Supreme Court will issue its decision in United States v. Rahimi, a case in which a man subject to a domestic violence restraining order says he has a constitutional right to keep his gun and that a federal law disarming abusers violates the Second Amendment. The court will also decide Garland v. Cargill, a challenge to a law classifying semiautomatic weapons equipped with bump stocks as machine guns because they enable automatic fire.

Last year, more than 40,000 people were killed by guns in the United States. Gun violence is now the No. 1 killer of children in America, and every month, about 70 American women are murdered by gun-wielding intimate partners. If her abuser has a gun, an abused woman is five times more likely to be killed by him.

Americans support commonsense gun control measures, with more than 80 percent of adults—including 79 percent of gun owners—saying that guns should be removed from people under domestic violence restraining orders. Close to the same percentage of Americans back laws that require gun owners to lock up their weapons. The United States is the only wealthy, functional peacetime state not plagued with gang violence that still has gun violence rates this high. The reason is our shockingly lax gun laws and the number of guns that have been allowed to proliferate as a result.

Why are we stuck with such lax gun safety laws when stricter regulation is so popular? Congress and state legislatures have struggled to do much about these pervasive and deadly problems in large part because of our current Supreme Court—and in particular its past 16 years of radical pro-gun jurisprudence. Since 2008, the court has radically departed from centuries of case law on gun regulations and the Second Amendment, making it astoundingly difficult for lawmakers to implement even the most basic and commonsense of gun laws. The departure had to do with the rapid rise of originalism, the legal theory that claims to interpret the Constitution according to its “public meaning” at the time of ratification. When it comes to guns, this effort stems largely from a 2008 case that has proved to be the original sin of originalist constitutional theory: District of Columbia v. Heller.

Heller centered on a (frankly poorly written) D.C. law regulating handgun ownership that functionally made it difficult for private individuals in the District to own handguns. A police officer, who wanted a handgun both on the job and at home, sued. And for the first time, the conservatives of the Supreme Court discovered an individual right to bear arms within the Second Amendment of the U.S. Constitution—and had the gall to call this a return to the founders’ intent.

Claiming that there is a singular, discoverable intent or meaning that can be derived from the founders’ words is bizarre. If you have ever followed the passage of a law through a statehouse or Congress, you have seen that many different people have many different ways of understanding and interpreting the very words they are putting into legal effect; if you have ever read the Federalist Papers or even recall much of your high school American history class, you may remember that there was robust conflict and compromise over the Constitution, including serious disagreement as to what various words and ideas might actually mean. Scholars still argue over the meaning of the Ten Commandments, which........

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