Two years ago, the Supreme Court created predictable havoc with its declaration that gun restrictions could only be justified under the Second Amendment if they were rooted in history and tradition. On Friday, the court cleaned up some of that mess, upholding the constitutionality of a federal law that prohibits those subject to domestic violence restraining orders from possessing guns. Only Justice Clarence Thomas, author of the earlier ruling, dissented.
That’s something to be thankful for, I guess. It was clear from the moment the justices accepted the case — part of the spate of rogue rulings from the out-of-control U.S. Court of Appeals for the Fifth Circuit that it is reviewing, and fixing, this term — that Zackey Rahimi would lose.
As Chief Justice John G. Roberts Jr. outlined in his opinion for the court, Rahimi is a drug dealer who embarked on a weeks-long shooting spree — my favorite was firing in the air when his friend’s credit card was declined at a Whataburger — all while subject to a restraining order that barred him from possessing weapons. Rahimi had dragged his girlfriend to his car, fired shots as she fled and threatened to shoot her if she told police. Police found an arsenal in his home.
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These are what lawyers call bad facts. Rahimi’s constitutional argument was that the high court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen invalidated the possession law because it lacked a colonial-era analogues. The Fifth Circuit agreed.
Friday’s ruling made clear, as Roberts put it, that Second Amendment law is not “trapped in amber,” requiring a precedent precisely on point. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” Roberts wrote. “As applied to the facts of this case, [the domestic abuse law] fits comfortably within this tradition.”
There is an infuriating blame-the-victim tone to the majority opinion, lamenting that “some courts have misunderstood the methodology of our recent Second Amendment cases.” Really? As Justice Ketanji Brown Jackson observed, Bruen unleashed “chaos” in the lower courts as judges engaged in a “mad scramble for historical records,” an enterprise for which they are ill-equipped and for which the court provided woefully inadequate guidance.
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“In my view, the blame may lie with us, not with them,” Jackson wrote. “The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness.”
The array of opinions — the case featured five concurring opinions joined by six justices, in addition to the Thomas dissent — suggested that this is a court still grappling with, and still arguing among itself about, the uses of history in constitutional interpretation.
The three liberal justices — Jackson, Sonia Sotomayor and Elena Kagan — made clear that they liked it better the old way, before Bruen, when courts used a balancing test to determine the legitimacy of gun restrictions. (Sotomayor and Kagan dissented in Bruen; Jackson joined the court after that but said she would have joined them.)
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Sotomayor, in a concurrence joined by Kagan, zeroed in on the inherent limitations of the historical approach. “Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, it is no surprise that that generation did not have an equivalent” to the law disarming domestic abusers, she noted.
Still, she said, despite Bruen’s “myopic focus on history and tradition,” the majority’s approach in Rahimi’s case at least “permits a historical inquiry calibrated to reveal something useful and transferable to the present day.”
Perhaps more interesting was the array of approaches endorsed by the conservative justices — as well as the welcome fact that Justice Samuel A. Alito Jr., who didn’t write separately, signed onto the Roberts opinion rather than join Thomas in dissent.
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Justice Neil M. Gorsuch emphasized that the historical inquiry shouldn’t be watered down to too great a level of generality, lest courts “risk gaming away an individual right the people expressly preserved for themselves,” signaling, perhaps, that for him Rahimi’s case was a one-off.
Justice Amy Coney Barrett, who has been musing openly this term about how to apply the historical test, emphasized that “imposing a test that demands overly specific analogues has serious problems,” and said the absence of a restriction wasn’t necessarily dispositive. At the same time, Barrett expressed doubt about looking to historical practices long after ratification of the text at issue.
Even under Bruen, as Sotomayor and Kagan said, United States v. Rahimi was “an easy case.” Harder ones are not far off: Are felon-in-possession laws that prohibit convicted felons from having guns constitutional, even if the felony involved was nonviolent? What about laws barring drug users from having weapons, as in the case of Hunter Biden? What about those who are charged or convicted of misdemeanor domestic abuse, not felonies?
Friday was a better day for those who believe in rational gun regulation — the first time the court had upheld a gun law since it declared in 2008 that the Constitution protects an individual right to bear arms. But this is an interim word from a conservative-dominated, history-obsessed court, not the last one.
