The most likely path forward [in Rahimi] is for the Court to give (in Justice Kagan’s words) “useful guidance” for the lower courts on how to apply Bruen. And by “useful guidance,” Justice Kagan means watering down the Bruen test so lower court judges can pretend Justice Breyer’s Heller dissent is controlling. What is that guidance? Solicitor General Prelogar explains “The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right.” Here, the Solicitor General purports to lecture the–what we are told is–the most originalist Supreme Court ever on originalism.
The most likely path forward [in Rahimi] is for the Court to give (in Justice Kagan’s words) “useful guidance” for the lower courts on how to apply Bruen. And by “useful guidance,” Justice Kagan means watering down the Bruen test so lower court judges can pretend Justice Breyer’s Heller dissent is controlling. What is that guidance? Solicitor General Prelogar explains “The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right.” Here, the Solicitor General purports to lecture the–what we are told is–the most originalist Supreme Court ever on originalism.
