Brett Kavanaugh May Have Quietly Sabotaged Clarence Thomas’ Extreme Gun Ruling – By Mark Joseph Stern (Slate) / Feb 3, 2023
The 5th U.S. Circuit Court of Appeals’ decision on Thursday allowing alleged domestic abusers to keep their guns is perhaps the most radical Second Amendment decision in the history of the federal judiciary. It is not, however, a surprise. Justice Clarence Thomas’ opinion in last year’s Bruen case invited lower courts to strike down any gun restrictions that “our ancestors would never have accepted.” This standard is infinitely malleable given the hopeless ambiguities in the historical record. But even where the record is clear, Thomas’ test leads to heinous results given that the “ancestors” in question were often violently racist and misogynistic white men. As the 5th Circuit tacitly acknowledged, “our ancestors” would “never have accepted” disarming domestic abusers because they did not believe domestic violence was a crime.
And yet, despite the reach of Bruen, I am fairly confident that five justices will reverse the 5th Circuit and uphold a variety of laws that our ancestors would have rejected, including the federal ban on owning a gun while subject to a restraining order for domestic violence. Why? Because I do not think five justices agree with Bruen. Yes, it was a 6–3 decision. Yes, every justice in the majority joined Thomas’ opinion in full. But one justice, Brett Kavanaugh, wrote a separate opinion laying out a different standard that cannot be squared with Thomas’. And another, Chief Justice John Roberts, joined him. Under the Kavanaugh-Roberts test, disarming alleged abusers—and other individual adjudged to be dangerous—is almost certainly constitutional.
It is almost never wise to be optimistic about this Supreme Court. And it is frightening to think that thousands of lives depend on Kavanaugh ruling the right way. But in this most unusual case, I think cautious confidence is in order.
