The United States v. Rahimi case that is currently pending before the Supreme Court potentially presents a clear and present danger to the originalist methodology of interpreting the Second Amendment as set forth in New York State Rifle and Pistol Association v. Bruen.
For those unfamiliar with Mr. Rahimi’s background and why this is a potentially difficult case for the Court, the following facts, as alleged in the court filings, reveal why this case may set a bad precedent for Second Amendment jurisprudence. In February 2020, he had a restraining order entered against him for dragging his girlfriend and then hitting her head on the dashboard of a car. After hitting his girlfriend he shot at a potential witness. He repeatedly violated his restraining order. In November 2020, he threatened another woman with a gun, leading to his arrest. Months later, police say Mr. Rahimi participated in five shootings, including in the presence of children.
These facts explain why it was a smart decision for Biden’s Attorney General Merrick Garland to put this case on the fast track to the Supreme Court. Rahimi is an apparently odious person, and Garland wants the Court to have to choose between defending Bruen and ruling in favor of him.
That puts pro-gun amici on a tough footing. But there are a few tactics that could make things even tougher if they show up in briefs from those amici.
The first would be criticizing Bruen or arguing it is difficult to understand or apply. Bruen’s opponents already say the decision is too hard to figure out and accuse it of turning lawyers into untrained historians. They do that because the Bruen methodology is a boon to Second Amendment advocates, and the type of historically informed analysis it requires is at the heartland of what lawyers have been doing for centuries.
The second is advocating for a return to judge-empowering interest balancing or tiers of scrutiny. That would turn a fight over the law into a debate about the pros and cons of gun control that will leave Second Amendment advocates much more vulnerable, especially in hostile courts. If the courts become dependent on statistics and studies, they will become dependent on the Ivy League professors–many of whom wish to overturn the Second Amendment. Moreover, the cost of hiring experts is prohibitive for most gun-rights advocates.
Also, the argument flies in the face of what Bruen said.
“Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context,” the court wrote. “Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Another mistake would be suggesting that the relevant date for determining the original meaning of the Second Amendment is 1868, or that purported analogues from the Civil War to the present have any validity. There are solid reasons for this: first, the Supreme Court has repeatedly said that the Bill of Rights means the same thing when it is applied to the federal government as it does when it is applied (via the 14th Amendment) to the states. Second, the Supreme Court has always interpreted the Bill of Rights, including in both Heller and Bruen, through the lens of the Founding Era. To the extent they examined later periods as well, they did so merely to confirm what the Founding Era evidence already demonstrated. Thus, 1791 is the clear choice for interpreting the Second Amendment. (For a full scholarly account of why the Founding Era is the correct answer, see my article in the Harvard Journal of Law and Public Policy.)
Moreover, in Espinoza v. Montana, a 2020 case involving the First Amendment’s religious clauses, the Court’s opinion written by Chief Justice John Roberts made clear that late 19th-century laws inconsistent with the meaning of the original Bill of Rights are not to be considered. There, the Court rejected as irrelevant to the meaning of the 1791 First Amendment, the thirty (30) late 19th Century state laws that forbade government monies from going to religious-oriented schools.
Another error to avoid would be arguing that those committing violent acts somehow remove themselves from the meaning of “the People” as that term is used in the Second Amendment’s text. To allow Mr. Rahimi to be eliminated from “the People” as a textual matter would open up Americans to being disarmed, even if the government cannot identify a single valid analogue to justify the relevant modern gun control law. In other words, the Rahimi case is about history, not plain text. The High Court has already found the text is clear. Mr. Rahimi is certainly part of “the People” given that both Heller and Bruen equated that phrase with “all Americans.”
“We start, therefore, with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans,” the Court said in Heller.
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions,” it reiterated in Bruen.
And, of course, once the Second Amendment’s text is implicated by a modern gun control law, that gun law is presumed to be unconstitutional and unenforceable UNLESS the Government supplies the court with a “well-established and representative historical analogue” to that modern gun law. So, from a gun-rights perspective, it is important that no argument be advanced to narrow the scope of the text of the Second Amendment. To do otherwise would have the effect of relieving the government of its heavy burden to come forth with historical proof supporting its law.
Amici also shouldn’t rely on discriminatory laws or laws aimed at enemies or persons or groups outside the polity as valid analogs. This was made clear by Justice Roberts in Espinoza when he rejected the use of several bigoted state laws that Montana used to justify banning public funds from going to religious schools, laws, which were primarily aimed at harming Catholics. Additionally, in Bruen the Court disregarded discriminatory laws, noting that before the Civil War, the Supreme Court and some states had wrongfully withheld from free blacks the rights of citizenship–including the right to keep and bear arms.
Further, Bruen said this of Reconstruction: “After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted. This Court has already recounted some of the Southern abuses violating blacks’ right to keep and bear arms.” The Bruen court did not believe such laws could inform the meaning of the Second Amendment.
Gun-rights advocates should equally avoid arguing that traditions of regulation can be derived from amorphous or general background principles and practices, and not from actual laws that were on the books and enforced (whether statutory or common law). The Supreme Court has already made clear what is necessary under its test.
“In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” the majority held in Bruen. “To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” (italics added).
Additionally, reliance on extra-legal material is typically done in connection with expert reports. Government defendants will often have proffered experts claim there was a general understanding that something like “preserving the peace” was a critical government function at the Founding, and then proceed to argue that virtually any gun-control law can be supported by that amorphous concept. The government’s brief in Rahimi follows this strategy. But Bruen says—repeatedly—that the government has the burden to prove its law is consistent with actual historical regulations. Moreover, it is absurd to think there is some well-established exception to Second Amendment protections that was never reflected in actual laws.
Amici also shouldn’t suggest that Heller’s dictum about “presumptively lawful regulations” language flips the burden of proof or otherwise affects the Bruen analysis in any way. We see this frequently in cases that touch on Heller’s list of presumptively lawful regulations. For example, the government will argue that because Heller stated that “sensitive place” laws are presumptively constitutional, plaintiffs—and not the government—bear the burden of demonstrating that a right to carry extends to those places.
But Bruen instructs us that once the Second Amendment’s text is implicated, in every case it becomes the government’s burden to demonstrate that the law being challenged is constitutional. Heller’s dicta about “presumptively lawful regulations” at most stated a mere expectation that certain types of laws would turn out to have (or not to have) constitutional implications. But that does not relieve a court from having to apply Bruen’s methodology to the facts at hand to determine whether the Supreme Court’s working assumption was accurate.
Pro-gun briefs should emphatically reject the idea that Heller and Bruen have already concluded and held that people who are not “law-abiding” or “responsible” can be disarmed. While there likely are some types of people who can be disarmed (e.g., murderers and violently mentally ill people), the Court has said nothing about where the line lies. The plaintiffs in Heller and Bruen were law-abiding and responsible by any measure. By stating that the right extends to law-abiding and responsible citizens, the Court was holding that the right extended to the plaintiffs in those cases. It was not commenting on the rights of the non-law-abiding or irresponsible, and it didn’t establish any line that would separate people whose rights are protected from those whose rights can be restricted. That will have to be decided in future cases.
Amici also shouldn’t accept the argument that domestic violence is a new societal problem that was not taken seriously in early periods of American history. At the Founding, there was a surety regime in place that gave legal recourse to women who were assaulted by their husbands. Justices of the peace and judges could require sureties, in which case a person would have to bind himself to a conditional debt with a third party, and if that person violated the peace, he would have to pay the debt along with the third party. A failure to find a third party to vouch for oneself could result in imprisonment.
Founding-Era English legal commentator William Blackstone recognizes the use of these sureties in preventing violence.
“ANY justices of the peace, by virtue of their commission, or those who are ex officio conservators of the peace,… may demand such security according to their own discretion: or it may be granted at the request of any subject, upon due cause shown, provided such demandant be under the king’s protection . . .,” and he notes that “Wives may demand it against their husbands; or husbands, if necessary, against their wives” in his 1770 Commentaries on the Laws of England. Similarly, in 1762, legal commentator William Hawkins wrote that “all persons whatsoever under the King’s Protection, being of sane Memory, whether they be natural and good Subjects, or Aliens, or attainted of Treason, & have a Right to demand surety of the Peace,” and that “it is certain, that a Wife may demand it against her Husband threatening to beat her outrageously, and that a Husband also may have it against his wife.”
In addition, not only was there legal recourse for battered wives, but the strong Christian framework of 18th-century America also protected them from mistreatment by their spouses. Randolph Roth, an academic who has studied violence at the Founding (and whose work is often cited by gun-control advocates) tells us that the New England Puritans had “a strong sense of the reciprocal obligations of husbands and wives and of the mutuality necessary for a successful marriage,” and as a result, they often addressed domestic violence as a religious community.
To close, how the Supreme Court comes down on these eight arguments is likely to decide the Rahimi case. If gun-rights advocates want to win, they should be well aware of them and their pitfalls.
