Thomas’ gun test meets reality
In 2022, the court’s conservative majority, led by Justice Clarence Thomas, announced a new test for the constitutionality of gun regulations: text, history, tradition.
Using this standard, a modern gun regulation had to have some connection to the use of similar arms prior to 1900. Lower courts did not necessarily have to find a twin to what existed historically, but at least something analogous to the modern weapon. The test was responsible for the
elimination of a number of gun regulations. And then, along came United States v. Rahimi.
After applying the Thomas test, a federal appellate court struck down a federal law that banned anyone with a domestic violence restraining order from owning guns. The appellate court said there was nothing in history to support the federal ban.
Would the Supreme Court, considering the likely public backlash, agree to strike down the law?
In an 8-1 decision, the court upheld the law. Chief Justice John Roberts looked to two early types of laws with principles that were shared by the federal law — protection of public safety. It is the principle that is important, he said. Was the ruling a softening of the Thomas test? Seven of the eight justices in the majority wrote separate opinions explaining their views of the test. Thomas was the lone dissenter.
The court clearly is engaged in internal discussions about application of the test. Americans will learn more as the justices consider what are inevitable gun challenges on their way to the high court.
Punting abortion
Perhaps it was the election year, perhaps it was too soon after jettisoning Roe v. Wade in 2022. But after granting review, briefing and arguments, the justices failed to reach the merits of two abortion cases, their first ones since their Dobbs decision.
A broad challenge to the abortion drug mifepristone by anti-abortion groups
was dismissed because the challengers lacked the right to sue, or standing (FDA v. Alliance for Hippocratic Medicine). And the court also
dismissed as premature Idaho’s challenge to a federal law requiring emergency treatment to stabilize individuals even if treatment needed was an abortion. The dismissal in Moyle v. United States left in place a temporary injunction barring Idaho’s abortion ban.
Just like guns, abortion is destined to return to the Supreme Court.
Barrett charts her path
Some justices have said it takes three to five terms before a new justice feels comfortable on the high court. Barrett, 52, and the youngest justice, took her seat in 2020. While generally a reliable conservative vote, she has had flashes of independence, particularly in the most recent term.
For example, in the Trump immunity decision, while siding with the majority, she disagreed that prosecutors could not use an immune official act as evidence and context in prosecution of an unofficial act. She wrote the dissent, joined by the liberals Sonia Sotomayor and Elena Kagan, in the Jan. 6 Fischer decision, disagreeing with the majority’s textualist interpretation of the criminal law at issue. In the unanimous decision finding that Colorado could not keep Trump off of its primary ballot (Trump v. Anderson), she wrote separately to
criticize the court for deciding more than was necessary to resolve the case.
And just two weeks ago, Barrett, who calls herself an “originalist,” disagreed with Thomas’s claim that "history and tradition" settle the constitutionality of the “names clause” in a federal trademark law. She called his approach
“wrong twice over.”
The 3-3-3 Court
While there were surprises in terms of cross-ideological alignments among the justices this term, a pattern seen more recently continues to hold. The justices’ rates of agreement fall along these lines:
