The Supreme Court currently has a conservative majority that is committed to interpreting the Constitution in its original sense. This commitment will be tested in two cases currently before the court that have unfavorable optics. One case involves a Second Amendment challenge to a federal statute criminalizing possession of firearms by those subject to domestic violence restraining orders. The other case involves a ban on bump stocks, which allow semiautomatic rifles to fire at a rate comparable to machine guns.
The Supreme Court has undergone a transformation due to Republican efforts aimed at preventing the politicized use of judicial power for progressive social change. This effort led to the promotion of originalist theories of interpretation, which gained momentum after the Heller case in 2008. The lower courts, however, continued to use a deferential balancing test when reviewing gun-control laws until the Supreme Court invalidated a New York law in 2022. The Bruen case established a new legal test to enforce the original meaning of the Second Amendment by ensuring that gun regulations align with historical tradition.
One of the cases currently before the Supreme Court, Rahimi, should be an easy decision under the originalist test established in the Bruen case. The government has not presented any pre-20th-century laws punishing American citizens for possessing a gun in their homes. The defendant in the case, Zackey Rahimi, has a restraining order against him and faces charges involving firearms misuse. The Supreme Court’s decision in this case will reveal how seriously the Second Amendment is taken compared to other constitutional rights.
In the second case, Garland v. Cargill, the issue revolves around bump stocks and the interpretation of the National Firearms Act of 1934. The government’s initial conclusion was that bump stocks do not turn a semiautomatic rifle into a machine gun based on the text of the statute, which defines machine guns as weapons that shoot automatically more than one shot by a single function of the trigger. Upholding the government’s reclassification of bump stocks would require the Supreme Court to disregard the principle that only Congress can amend statutes.
The conservative legal movement’s goal has been to replace the result-oriented approach of the Warren court with respect for the original meaning of the Constitution and Congress’s authority to enact and amend laws. The outcome of these cases will be a test of whether this goal has been achieved. If the government wins either or both cases, it may indicate that the conservative legal movement has not fully succeeded in its project to uphold originalist principles and respect Congress’s legislative authority. These cases will play a crucial role in determining how faithfully the conservative justices adhere to their originalist legal principles.
