The US Department of Justice (DOJ) Tuesday filed a petition with the Supreme Court seeking a reversal of the US Court of Appeals for the Fifth Circuit’s decision in United States v. Rahimi, in which the court ruled that a law prohibiting access to firearms to persons under domestic violence restraining orders was unconstitutional. The Fifth Circuit held that the law, 18 U.S.C. § 922(g)(8)(c), violated the Second Amendment on its face because it failed to comport to the nation’s “historical tradition.”
However, the DOJ cites a 1662 English law that empowered the Crown to seize arms from people deemed “dangerous to the kingdom.” The DOJ further argues that the law “fits squarely within the longstanding tradition of disarming dangerous individuals.” The Fifth Circuit originally affirmed the law’s constitutionality but withdrew their opinion after the Supreme Court’s recent decision in New York Rifle & Pistol Assn. v. Bruen. In that case, the Supreme Court struck down a New York state law prohibiting open carry in public places, holding that the law failed to pass an originalist reading of the Second Amendment.
Originalism is a school of constitutional interpretation that seeks to understand the Constitution as it would have been understood at its writing. This line of constitutional interpretation has drawn criticism from legal scholars. Critics such as Dean of Berkeley Law School Erwin Chemerinsky contend that “even the founders didn’t believe in originalism.” However, four justices of the Supreme Court—Amy Coney Barrett, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—are self-proclaimed originalists, while a fifth, Justice Samuel Alito, describes himself as a “practical originalist.” Even Justice Elena Kagan, part of the court’s liberal bloc, stated “We are all originalists now” in her confirmation hearing.