In US v. Rahimi, the Supreme Court rebuked a lower court for applying its Second Amendment test too strictly. Will it do the same for those applying it too loosely?
On Friday, The Court handed down an 8-1 ruling upholding Zachary Rahimi’s conviction for violating the federal ban on gun possession for those subject to a domestic violence restraining order. It said the underlying federal law fit within the history and tradition of firearms regulation, as required by the Bruen test, because early American surety and affray laws were close enough in basis and execution for the modern law to pass muster. The majority ruled it was within the tradition of “preventing individuals who threaten physical harm to others from misusing firearms.”
The ruling will likely have little direct practical effect. It maintains the status quo for those, like Rahimi, who’ve been subject to a domestic violence restraining order after a court specifically found they are dangerous. The government can still disarm them–at least temporarily.
The more substantial outcome of the ruling is found in how it got to the conclusion the modern ban was constitutional and the message it sent to the lower courts.
“[S]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber,” Chief Justice John Roberts wrote for the majority. “As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it ‘extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.’ By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”
The opinion was primarily a rebuke of the Fifth Circuit Court of Appeals for the way it applied Bruen, which the majority reminded everyone it did not mean to be a regulatory “straightjacket.”
“For its part, the Fifth Circuit made two errors,” Roberts wrote. “First, like the dissent, it read Bruen to require a ‘historical twin’ rather than a ‘historical analogue.’ Second, it did not correctly apply our precedents governing facial challenges.”
Of course, the Bruen test was also not meant to be a “blank check” for government regulators either. The lone dissenter in the case, who also happened to be the author of the Bruen decision, warned the majority’s reasoning in Rahimi could push the lower courts in that direction.
“The Court recognizes that surety and affray laws on their own are not enough,” Justice Clarence Thomas wrote in his dissent. “So it takes pieces from each to stitch together an analogue for §922(g)(8).”
He argued that mix and match approach “defeats 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 warned. “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.”
To his point, it’s not difficult to find lower court rulings in the post-Bruen landscape that have relied on dubious historical analysis to uphold all manner of modern gun restrictions. Cases where judges have upheld bans on the sale of popular guns and so-called Large Capacity Magazines (LCMs) have all involved an exceedingly broad viewpoint for finding historical analogies. Often, the judges will just throw a mish-mash of laws from varying time periods against the wall and call the collection a justifiable analogue because they share a general goal of ensuring public safety.
“The justification for the law is a public safety concern comparable to the concerns justifying the historical regulation of gunpowder storage and of weapons like sawed-off shotguns, Bowie knives, M-16s and the like,” Judge William Kayatta, a Barack Obama appointee, wrote in Ocean State Tactical v. Rhode Island. “The analogical ‘how’ and ‘why’ inquiry that Bruen calls for therefore strongly points in the direction of finding that Rhode Island’s LCM ban does not violate the Second Amendment.”
The majority disagreed with Thomas’s dim reading of the precedent they set. Instead of abandoning the Bruen standard, they argued Thomas’s interpretation of the historical precedent was simply too strict. As was the Fifth Circuit’s interpretation.
Presumably, a majority of The Court also believes other courts have gone too far in the other direction. Now that they’ve given the nation a starting guide for what it looks like to apply Bruen’s history and tradition test too stringently, it would make sense to provide some clues in the other direction. There are likely to be a lot of opportunities to do exactly that waiting in line for a cert grant.
Bruen is a test subject to the historical record’s gray areas. As many of the concurrences point out, history is rarely as straightforward as we’d like. Interpreting it and then applying those lessons to modern gun laws is often going to be difficult. The Supreme Court was always going to have to lead by example in applying the test itself across a wide array of Second Amendment cases to develop a clear structure for the lower courts to follow.
However, if it doesn’t take an Anti-Rahimi case anytime soon and leaves only its admonishment for too strictly interpreting Bruen for lower courts to look to, Thomas’s warnings may well come true.
