Two years ago, the Supreme Court caused a predictable uproar when it ruled that gun control laws could only be justified under the Second Amendment if they were rooted in history and tradition. On Friday, the court cleared up some of that confusion, upholding the constitutionality of a federal law that bans people subject to domestic violence restraining orders from owning guns. Only Justice Clarence Thomas, who wrote the earlier decision, dissented.
From the moment the judge accepted this case (part of a string of wrongful rulings by the out-of-control U.S. Fifth Circuit Court of Appeals that is currently being reviewed and revised this term), it was clear that Zacky Rahimi was going to lose.
As Chief Justice John G. Roberts Jr. wrote in his opinion, Rahimi was a drug dealer who went on a shooting spree over a period of weeks, my favorite being when he fired a shot into the air at a Whataburger after his friend's credit card was declined. During that time, he was subject to a restraining order prohibiting him from possessing weapons. Rahimi dragged his girlfriend to his car, shot at her as she fled, and threatened to shoot her if she called the police. Police discovered an arsenal in his home.
Those are what lawyers call bad facts. Rahimi's constitutional argument was that the Supreme Court's 2022 decision in New York State Rifle and Pistol Association v. Bruen invalidated the possession law because there was no colonial-era parallel. The 5th Circuit Court of Appeals agreed.
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Friday's decision makes it clear that the Second Amendment is not “locked in amber,” as Justice Roberts put it, but rather that we need precedent on that very point. “Since our founding, our firearms laws have contained provisions prohibiting the misuse of firearms by individuals who threaten to cause bodily harm to others,” Justice Roberts wrote. “Applied to the facts of this case: [the domestic abuse law] It fits right into this tradition.”
The majority opinion had an exasperating tone of victim-blaming, lamenting that “some Courts have misunderstood the techniques of recent Second Amendment cases.” Really? As Justice Ketanji Brown Jackson noted, Bruen had created “confusion” in the lower courts, leaving justices “furiously scrambling for the historical record” for an endeavor they were ill-equipped for and for which the Court had provided woefully inadequate guidance.
“In my view, the responsibility may lie not with them but with us,” Jackson wrote. “The message that the lower courts are currently sending in Second Amendment cases couldn't be clearer: They say there is little rationality in Bruen's insanity.”
The case included five concurring opinions, with six justices joining in addition to Justice Thomas' dissenting opinion, suggesting that the Court is still grappling with and debating the use of history in interpreting the Constitution.
Three liberal justices, Jackson, Sonia Sotomayor and Elena Kagan, made it clear that they preferred the pre-Bruen approach, in which the Court used a balancing test to determine whether gun control laws were legal. (Justices Sotomayor and Kagan dissented in Bruen; Justice Jackson, who has since joined the Court, said he would have joined them.)
In her concurring opinion, joined by Kagan, Sotomayor focused on the inherent limitations of the historical approach: “Given the fact that our nation's founding laws were focused on protecting husbands who abused their spouses, rather than providing any kind of accountability, it is not surprising that that generation had no equivalent to laws to disarm domestic abusers,” she noted.
Still, despite Bruen’s “myopic focus on history and tradition,” she said, the majority’s approach in Rahimi’s case at least “allows for historical inquiry that is tailored to uncover something useful and applicable to the present.”
Perhaps more interesting is the variety of approaches supported by the conservative justices, and the welcome fact that Justice Samuel A. Alito Jr., who did not write a separate opinion, signed Justice Roberts' opinion rather than joining Justice Thomas' dissenting opinion.
Justice Neil M. Gorsuch stressed that historical research must not be diluted by too many generalizations, or the Court could be in “danger of discounting individual rights that people have clearly reserved for themselves,” perhaps indicating that for Gorsuch, Rahimi's case is a one-off.
Justice Amy Coney Barrett, who has been openly musing this term about how to apply the historical test, has emphasized that “imposing an overly specific test for analogies has serious problems” and said that the absence of limitations is not necessarily dispositive. At the same time, Justice Barrett expressed doubts about referring to historical practice long after the provision in question was ratified.
Even under Justice Bruen, United States v. Rahimi was, as Justices Sotomayor and Kagan put it, “an easy case.” Harder cases are not far off. Are felon possession laws that prohibit convicted felons from possessing guns constitutional even if the felony was nonviolent? What about laws that prohibit drug users from possessing weapons, as in Judge Hunter Biden's case? What about people who have been charged or convicted of misdemeanor domestic violence, rather than a felony?
Friday was a good day for those who believe in reasonable gun control: It was the first time the Supreme Court has upheld gun control since declaring in 2008 that the Constitution protects an individual right to bear arms. But it was a tentative ruling from a conservative-majority, history-obsessed court, not a final one.
