Amid the endless parsing of the US Constitution’s Second Amendment to support gun rights is another famous declaration from the US Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

In what world are these foundational rights consistent with gun rights supporter arguments for the freewheeling use of guns to deprive people of their lives, liberty, and the pursuit of happiness? If not deprived of life by gun violence, survivors can feel stripped of their liberty and denied their rights to justice. No matter what form gun violence takes, it also takes away the pursuit of happiness—in some cases for a lifetime.

With this framework in mind, it’s particularly troubling that the US Supreme Court is doubling down on rulings ensuring that gun owners and manufacturers have little or no accountability to support life, liberty, and the pursuit of happiness.

There are three elephants in the room whose shortcomings continue to imperil life, liberty, and the pursuit of happiness—Justice Clarence Thomas, Chief Justice John Roberts (whose confirmation hearing commitment to call only “balls and strikes” has not been kept), and the Bruen decision that threw gun control into disarray across the land.

Thomas time travels to the past
Justice Clarence Thomas, in particular, seems stuck back in the days of the Revolution, viewing today’s catastrophic gun violence from the perspective of Revolution-era weapons that bear no resemblance to the killing power of modern weapons. 

Thomas’ contemptible views of women—evidenced by Anita Hill’s testimony during his confirmation hearing in 1991—also are on full display with his sole dissent in the 8-1 Rahimi decision to uphold present law preventing domestic violence perpetrators subject to protection order from possessing firearms. Overwhelmingly, domestic violence cases involve female victims. Ninety-one percent of all women killed with firearms in high-income countries were from the United States. [SOURCE] Clarence Thomas was not compelled by this fact.

Roberts ditches his promise to be an umpire only
Then, there’s Chief Justice John Roberts’ broken confirmation commitment to only “call balls and strikes” with regard to the Constitution. When he said this, he was referencing the role of the umpire to make the calls as fairly and objectively as possible.

Viewed through the lens of his Bruen and Rahimi decisions, Roberts’ umpire objectivity is seriously called into question. In the Bruen decision, he voted with the 6-3 supermajority creating an entirely new standard for firearm regulations stating that for a “gun law to be constitutional in the 21st century, it needs to have been in existence, at least in principle, at the time the Second Amendment was ratified” in 1791.

In Rahimi, Roberts ostensibly upheld the opposite point of view, noting in his opinion for the majority that “some courts have misunderstood the methodology of our recent Second Amendment cases.” The Court’s precedents “were not meant to suggest a law trapped in amber.” In contrast, Bruen does trap the law solidly in amber—origin of which goes back centuries.

In 1791, domestic violence laws, restraining orders, and a myriad other gun violence prevention laws did not exist. In fact, spousal rape was not made a crime in all states until 1993.

Additionally, the firearms available to people in 1791 did not have the firepower of today’s guns. In the 18th century, the typical musket held one round, a shooter could fire 3 to 4 rounds a minute, and the maximum accurate range was 50 meters. In contrast, a typical modern day AR-15 has a 30-round magazine, can fire 45 rounds a minute, and has a maximum accurate range of 550 meters according to the Washington Post.

Bruen decision boggles the mind…and the courts
For the Bruen decision to be fair, only firearms comparable to those available in the 18th century should be allowed to be purchased or possessed under the Second Amendment.

While the Rahimi ruling provides some clarification for courts regarding the application of standards, it doesn’t undo or unduly hamper Bruen’s impact. Notes an article in ballsandstrikes.org: “This case was the first big test for the rule the Court established two summers ago in New York State Rifle & Pistol Association v. Bruen, in which Thomas, writing for the six-justice conservative supermajority, declared that laws regulating guns are presumptively unconstitutional unless they are ‘consistent with this Nation’s historical tradition of firearm regulation.’”

“Because of Bruen,” the article continues, “the legality of virtually every gun regulation was suddenly called into question, and overworked and understaffed lower courts embarked on frantic historical safaris to find Founding-era matches to today’s gun laws.”

David French writes in a recent New York Times column, “On Friday, eight justices of the Supreme Court not only ruled against Rahimi. They clarified their approach to text, history and tradition in a way that freed lower courts from the straitjacket of finding precise historical analogies. Or, as Justice Amy Coney Barrett wrote in her concurrence, ‘Historical regulations reveal a principle, not a mold.’”

Originalism ‘cracks’ with Rahimi decision
Two years ago, Supreme Court originalism was in the spotlight after the Bruen decision. Notes ballsandstrikes.org: “The Supreme Court’s Mask-Off Originalism Era Is Officially Underway…At a moment when most Americans favor gun safety laws, the Supreme Court’s decision in Bruen turns back the clock to 1791…after a deadly shooting in Uvalde, Texas, claimed the lives of nineteen elementary school students and two teachers, the Supreme Court in New York State Rifle and Pistol Association v. Bruen struck down a New York law that requires handgun owners to get a license before carrying it in public.” 

According to The Hill in an article published after the Rahimi decision: “The Supreme Court’s gun rights decision deepens the cracks in originalism…In a decision that provoked a sigh of relief in most of the country, the Supreme Court ruled 8-1 last week that a 30-year-old federal law barring accused domestic abusers from having guns while under a restraining order was constitutional under the Second Amendment. In doing so, it overturned the unanimous lower court ruling by a three-judge panel of the conservative Fifth Circuit that previously struck down the federal law.”

The article notes, “In U.S. v. Rahimi, the court majority continued its embrace of an idea derived from the principle of constitutional originalism — in this instance, that current gun laws should be judged according to whether similar laws existed in the country’s past. Perhaps recognizing the manifold problems with this doctrine, and as if to loosen the originalist straitjacket, Chief Justice John Roberts wrote that the relevant historical inquiry was ‘whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.’”

Continuing, the article adds, “Another indication that the court’s conservatives are rethinking blind adherence to originalism came earlier this month, when Justice Amy Coney Barrett wrote that Thomas’ opinion in a trademark case leaned too much into a ‘laser-like focus on the history’ that ‘misses the forest for the trees.’ A further suggestive indication that Thomas’s originalism extremism may be wearing thin came in the recent revelation that he was initially unable to corral five votes for the Bruen majority opinion.

The Supreme Court must stop trampling on “life, liberty, and the pursuit of happiness” by using the Second Amendment to be interpreted as a marketing tool for arms dealers.