(Image
via
Getty)
As
a
court
once
ruled,
“[i]f
no
permanent
injury
has
been
inflicted,
nor
malice,
cruelty
nor
dangerous
violence
shown
by
the
husband,
it
is
better
to
draw
the
curtain,
shut
out
the
public
gaze,
and
leave
the
parties
to
forget
and
forgive.”
That’s
a
citation
from
a
recent
opinion
declaring
it
unconstitutional
to
penalize
someone
for
carrying
a
gun
while
subject
to
a
restraining
order
in
a
domestic
abuse
case.
So
you
know
we’re
in
for
some
high
quality
analysis
of
the
“Nation’s
historical
tradition”
as
Justice
Thomas
put
it
in
Bruen.
In
the
aftermath
of
Bruen,
district
courts
don’t
have
much
latitude
when
it
comes
to
gun
regulations.
Once
you
read
“well
regulated
militia”
out
of
the
text
and
then
hand
wave
away
the
lengthy
record
of
contemporaneous
ratification
statements,
there’s
not
a
lot
any
judge
can
do
but
strike
down
any
law
that
even
mentions
guns.
But
when
Judge
David
Counts
of
the
Western
District
of
Texas–Pecos
Division
struck
down
18
USC
§
922(g)(8)
last
week,
he
went
way
beyond
just
shrugging
and
informing
the
parties
that
his
hands
were
tied.
Instead,
he
turned
in
an
opinion
that
goes
so
far
beyond
that
conclusory
edict
that
it’s
honestly
hard
to
tell
if
he’s
serious
and
making
a
fool
of
himself
or
playing
the
fool
to
expose
how
intellectual
bankruptcy
of
Bruen
itself.
The
opinion
deals
with
a
trucker
pulled
over
by
border
patrol
sporting
a
handgun.
Unfortunately
for
the
trucker,
he
was
subject
to
both
a
court
order
accompanying
his
release
on
an
assault
arrest
and
a
family
court
restraining
order
based
on
domestic
abuse.
For
the
last
nearly
three
decades,
carrying
a
gun
under
these
circumstances
would
trigger
18
USC
§
922(g)(8).
But
Judge
Counts
rejects
that
law
as
unconstitutional
because
“history”
wouldn’t
support
infringing
someone’s
right
to
carry
a
deadly
weapon
just
because
multiple
courts
have
determined
the
person
to
be
a
violent
threat
to
society.
Simply
put,
the
Framers
didn’t
really
care
about
women
getting
abused
so
there’s
nothing
modern
legislators
can
do
about
it.
So
what
about
the
“Nation’s
historical
tradition”
as
Thomas
would
say?
This
straightforward
historical
analysis,
however,
reveals
a
historical
tradition
likely
unthinkable
today.
Domestic
abusers
are
not
new.
But
until
the
mid-1970s,
government
intervention—much
less
removing
an
individual’s
firearms—because
of
domestic
violence
practically
did
not
exist.A
reason
for
that
was
how
infrequently
domestic
abusers
were
prosecuted.
For
example,
the
Plymouth
Colony
court
records
from
1633
to
1802
represent
the
only
jurisdiction
where
the
prosecution
of
domestic
violence
has
been
studied
over
a
long
time
frame.
And
during
that
almost
200-year
period,
only
12
cases
involving
wife
beating
were
prosecuted.
Zero
complaints
during
that
time
were
for
child
abuse.
Another
study
of
the
six
New
England
colonies
from
1630
to
1699
confirmed
the
same—only
57
wives
and
128
husbands
were
tried
on
charges
of
assault.
Indeed.
Historically,
no
one
much
cared
about
domestic
abuse
and
therefore
the
“original”
interpretation
of
the
Second
Amendment
would
not
have
considered
it
possible
to
punish
domestic
abusers
for
having
guns.
As
the
judge
reasons,
it’s
not
that
domestic
abuse
wasn’t
a
problem
in
that
era,
but
that
it
was!
Since
domestic
abuse
still
occurred
back
then
and
went
unpunished
—
and
specifically
didn’t
see
authorities
confiscating
someone’s
guns
—
then
it
“proves”
there’s
no
basis
for
any
law
barring
gun
ownership
by
domestic
abusers.
Another
historical
chunk
comes
from
the
nineteenth
century.
As
society
advanced,
removing
firearms
from
an
abuser—through
government
intervention
or
otherwise—was
still
not
a
prevalent
occurrence.
For
instance,
one
prominent
scholar
examined
statutory
materials
and
articles
from
major
newspapers
across
eight
states
in
the
American
West
from
1860
to
1930.
And
from
that
historical
examination,
the
usual
mode
of
punishment
for
domestic
violence
was
a
fine,
with
the
most
common
being
between
$50–200.
Some
offenders—although
it
was
far
less
common—could
receive
a
whipping
or
jail
time.
Consider
the
short
period
in
the
1870s
when
the
California
penal
code
allowed
an
abuser
to
be
punished
with
“not
less
than
twenty-one
lashes
on
the
bare
back.”
It’s
here
when
I
started
wondering
if
the
judge
is
performing
a
bit.
“Look,
if
you
wanted
to
whip
people
for
this
crime
that’s
fine…
but
you
can’t
take
away
their
deadly
weapons!”
Atop
this
loony
premise,
the
opinion
adds
the
historical
citation
to
some
curated
newspaper
articles
from
1860
to
1930
across
eight
states.
That’s
such
a
cartoonishly
bad
abuse
of
historical
methods
it
feels
like
a
satirical
jab.
Indeed,
the
judge’s
inclusion
of
the
quote
that
opens
this
article
feels
pointed.
It’s
as
though
he
dug
deep
to
find
the
most
appalling
markers
of
“historical
tradition”
on
purpose.
As
the
opinion
goes
on,
the
conclusions
keep
pushing
up
against
that
fine
line
between
crazy
and
satire.
For
one
thing,
one
could
easily
imagine
a
scenario
where
separate
courts
can
come
to
different
conclusions
on
a
law’s
constitutionality,
but
both
courts
would
be
right
under
Bruen.
Say
the
Government
in
Court
A
develops
an
in-depth
historical
analysis
to
uphold
a
regulation,
and
Court
A
finds
that
the
Government
met
the
burden
imposed
by
Bruen’s
step
two.
The
Government
in
Court
B,
in
contrast,
could
face
the
same
regulation
as
in
Court
A
on
the
same
day,
but
develop
no
analysis
or
fail
to
respond
at
all.
An
inflexible
reading
of
Bruen
then,
would
require
Court
B
to
declare
the
regulation
unconstitutional.
On
that
basis,
the
same
regulation
gets
different
results
based
on
how
adept
at
historical
research
the
Government’s
attorneys
are
in
a
particular
location
or
the
time
they
have
to
devote
to
the
task.
Yes…
almost
as
though
this
“historical
analysis”
thing
is
non-legal,
intellectual
gobbledygook.
What’s
more,
because
most
gun
regulations
are
relatively
new,
the
Second
Amendment’s
jurisprudence
is
underdeveloped
compared
to
other
constitutional
provisions.
It
wasn’t
until
Heller
in
2008
that
the
individual
right
to
keep
and
bear
arms
was
solidified.
And
the
Second
Amendment
wasn’t
incorporated
against
the
states
through
the
Fourteenth
Amendment’s
Due
Process
Clause
until
McDonald
in
2010—almost
100
years
after
the
First
Amendment
was
incorporated.
Thus,
analyzing
the
Second
Amendment
through
a
historical
lens
as
an
individual
right,
applicable
against
the
states,
has
only
been
around
for
some
14
years.
Or
put
another
way,
the
Supreme
Court’s
jurisprudence
that
the
Second
Amendment
enshrines
an
individual
right
is
younger
than
Twitter,
Facebook,
or
YouTube.
By
“relatively
new,”
he
means
that
federal
gun
regulations
date
back
almost
a
century
and
the
one
at
issue
here
goes
back
three
decades
while
the
right
in
question
isn’t
even
old
enough
to
drive
yet.
The
Bruen
mandate
to
rule
based
on
history
becomes
farcical
when
judges
for
two
centuries
read
the
same
historical
texts
and
yet
no
one
saw
the
same
“history”
the
majority
concocts
until
14
years
ago.
I
mean…
this
has
to
be
some
Supreme
Court
trolling,
right?
This
can’t
be
serious,
could
it?
We
may
never
know
how
Judge
Counts
intended
this
opinion
to…
“count.”
But
whether
it’s
serious
or
not,
the
opinion
excels
as
an
indict
of
Bruen.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.