In the few weeks since it was handed down, we’ve begun to see the impact of the Supreme Court’s decision in US v. Rahimi. Early indications are it could be limited.
In the highest-profile example so far, the Eighth Circuit Court of Appeals ruled Tuesday that Minnesota’s practice of denying 18-20-year-olds the ability to obtain gun carry permits is unconstitutional. That ruling offered one of the first signs of just how much (or how little) courts might change their practices in Second Amendment cases since the Supreme Court elaborated on how best to perform the history and tradition test it first developed just two years ago.
“Minnesota has not met its burden to proffer sufficient evidence to rebut the presumption that 18 to 20-year-olds seeking to carry handguns in public for self-defense are protected by the right to keep and bear arms,” Judge Duane Benton wrote in Worth v. Jacobson. “The Carry Ban […] violates the Second Amendment as applied to Minnesota through the Fourteenth Amendment, and, thus, is unconstitutional.”
Though it is just one decision, it marked the first appellate-level merits ruling on a Second Amendment challenge since the Rahimi decision, which itself was significant in that it was the first time the Court upheld a law against a Second Amendment challenge following a string of landmark cases going the other direction. In effect, it suggests that lower courts may not interpret the Supreme Court’s last word as a call for added flexibility in their Second Amendment analyses. Not only did the Eighth Circuit uphold the same outcome reached by a District Court before Rahimi, but it specifically cited Rahimi to foreclose one of the Minnesota government’s arguments for upholding the law.
“Minnesota states that from the founding, states have had the power to regulate guns in the hands of irresponsible or dangerous groups, such as 18 to 20- year-olds,” Judge Benton wrote.
“At the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people,” he added, citing language from the Rahimi opinion rejecting a categorical disarmament principle based on irresponsibility.
Throughout the rest of the analysis, however, the panel applied a similar historical inquiry to what many courts did before Rahimi.
“Minnesota did not proffer an analogue that meets the ‘how’ and ‘why’ of the Carry Ban for 18 to 20-year-old Minnesotans,” Benton concluded. “The only proffered evidence that was both not entirely based on one’s status as a minor and not entirely removed from burdening carry—Indiana’s 1875 statute—is not sufficient to demonstrate that the Carry Ban is within this nation’s historical tradition of firearm regulation.”
Of course, Rahimi having a limited bearing on the legal analysis of gun-carry permits for young adults may not be surprising. After all, Rahimi dealt with the federal gun prohibition for persons subject to domestic violence restraining orders, not access to carry permits, and the Court delivered a particularly narrow holding.
“When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment,” the majority held in Rahimi.
But it was the way the majority reached its narrow holding that left some gun-rights advocates worried that the Court had significantly weakened its legal test for Second Amendment lawsuits. Their disappointment and concerns were even shared by Justice Thomas, the architect of that test, in his Rahimi dissent.
Thomas accused the majority of endorsing a loose reading of historical analogies that “defeat[s] the purpose of a historical inquiry altogether.”
“Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement,” Thomas wrote. “That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of ‘regulatory blank check’ that Bruen warns against, and the American people ratified the Second Amendment to preclude.”
Thus far, it does not look like Thomas’ worst fears have come to pass. Beyond the Eighth Circuit’s decision on gun permits for young adults, lower courts elsewhere have continued to strike down gun laws, including status-based gun prohibitions like the one at issue in Rahimi.
US District Judge Carlton Reeves, by no means a fan of the Bruen test, also delivered a Second Amendment analysis that seemed unchanged by Rahimi. Earlier this month, he struck down the federal gun ban for undocumented immigrants–at least as applied to the defendant in the case.
“The Fifth Circuit has found that ‘Bruen clearly fundamentally changed our analysis of laws that implicate the Second Amendment, rendering our prior precedent obsolete,’” he wrote in US v. Benito. “And the Supreme Court’s latest decision in Rahimi didn’t disagree with that premise in the slightest. Although the Justices parted ways with the Fifth Circuit’s outcome, they doubled down on the legal standard they articulated in Bruen.”
As a result, he subjected the case to a comparatively stringent analysis under Bruen and determined that undocumented immigrants are “presumptively protected” by the text of the Second Amendment. Under what he called the “Bruen-Rahimi standard,” he said the government would only be able to justify disarming the defendant if he were found to be dangerous because the High Court only endorsed “the principle that American history and tradition support disarmament of dangerous persons.”
“But Mr. Benito has never been convicted of a crime, much less a dangerous crime, so he can’t be disarmed yet,” he concluded.
Even courts that have upheld gun-control laws in Rahimi‘s aftermath have not relied on its reasoning to do so. A three-judge panel for the Third Circuit Court of Appeals on Monday denied a request for preliminary injunction against Delaware’s “assault weapon” and “large-capacity magazine” bans in an opinion that cited Bruen at least 27 times and Rahimi precisely zero times. And, while the majority’s reasoning hinged solely on the grounds that not granting the injunction would not result in “irreparable harm,” another member of the panel wrote separately in a concurrence that she would have ruled on the merits that AR-15s are not even “arms” protected by the Second Amendment—a common argument from judges that pre-dates Rahimi and also did not even cite the decision.
Of course, things are early, and the evidence doesn’t unanimously point toward Rahimi having no impact on Second Amendment cases. One of the first lower court decisions to cite it, upholding criminal charges for possessing unregistered machinegun conversion devices against a Second Amendment challenge, did endorse the view that Rahimi watered down the Bruen test–at least somewhat.
“I do not believe Herriott’s constitutional rights are being violated, and the National Firearms Act statutes remain constitutional after Bruen (and after Rahimi as well),” Judge Philip Simon wrote in US v. Herriott. “If anything, Rahimi can be seen as a softening of the approach to the Second Amendment taken in Bruen. How else does one explain that the author of Bruen is the sole dissenter in Rahimi?”
It’s possible that a more significant split over Rahimi‘s impact on Second Amendment cases will begin to emerge over time. However, the way lower courts have handled gun cases hasn’t changed much yet.
