Supreme Court Justice Robert Jackson famously asserted in Brown v. Allen (1953): “We are not final because we are infallible, but we are infallible only because we are final.” The assertion is a half-truth. The Court is not infallible testified by its overruling of hundreds of precedents. In that sense, a decision of the Court is never final because it is always vulnerable to overruling. Thus, Jones v. Opelika (1942), upholding a license requirement for the sale of books, was vacated within a year as wrongly decided in Jones v. Opelika II (1943). Justice Owen Roberts complained in Smith v. Allwright (1944) that the Court’s flip-flops “tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only.”
The error-prone Supreme Court shot itself in the foot last year in a landmark gun control case in New York State Rifle & Pistol Association v. Bruen. The Court declared that the Second Amendment right to keep and bear arms prohibits any restriction on gun ownership or use that is not a direct descendent of a 1791 common gun limitation when the Amendment was ratified. A first or second cousin consanguinity will not do.
Does the direct descendant standard make any sense? In 1791, 95 percent of the population resided in rural areas. In 2022, 80 percent resided in urban areas. The potential for gun mischief and a need for corresponding gun restrictions are clearly different then and now. Would you expect to find strict gun controls on the generally uninhabited island occupied by Robinson Crusoe?
Think of an analogy. The Constitution expressly empowers Congress in Article I, section 8, to raise and support armies and a navy. It says nothing about an Air Force or Space Command. Should the latter be held unconstitutional?
Chief Justice John Marshall elaborated in McCulloch v. Maryland (1819) referencing the Necessary and Proper Clause in Article I, section 8: “This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.”
The Court in New York State Rife & Pistol Association was clueless as to how to distinguish between a direct descendant gun law and a first or second cousin relationship. The result has been a rule of judges in subordinate tribunals, i.e., the distinction is whatever a judge says it is in the judge’s courtroom. The Court’s task is to dispel not sow confusion. But this precedent did the opposite.
Take the case of Zackley Rahimi examined today by columnist Ruth Marcus in The Washington Post. Mr. Rahimi was convicted of illegal possession of firearms after receiving a domestic violence retraining order for allegedly assaulting his ex-girlfriend. Further, Rahimi was gun-happy. He fired an AR-15 into the home of a man to whom he had sold Percocet. The next day, after a car accident, he shot the other driver with a hand gun. He shot at a police car, and fired several rounds into the air infuriated when a friend’s credit card was declined at a fast-food eatery.
The United States Court of Appeals for the Fifth Circuit held the Second Amendment prohibits denying guns to persons subject to domestic violence restraining orders. Judge Cory T. Wilson scoured the books in the 1791 age of muskets, but his archeological dig unearthed no laws expressly disarming persons found prone to domestic violence after a court hearing.
Surprising?
Women only stopped being chattel in American law with the Married Women’s Property Act of 1870. Justice Joseph Bradley proclaimed in Broadwell v. Illinois (1873): “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
To err is human. To confess error is divine. Let’s hope the Supreme Court choses divinity to use the Rahimi craziness to abandon the unworkability of the Bruen direct descendant rationale.
Supreme court only interprets the law and decides weather it is constirutional or not. That is what it does on this case. “Shooting oneself on leg” is not correct anology.