The nine justices of the Supreme Court stared over the edge, with an unpleasant choice before them.
They could, as the lower court did, apply a two-year-old gun rights precedent and declare unconstitutional a federal law designed to keep guns out of the hands of individuals who are subject to court injunctions against domestic violence. They knew that if they upheld such an extreme result, they might end up toppling not only a 30-year-old law but also the court itself, which is already near rock bottom in public opinion. Or they could step back, relax their support for the Second Amendment, and, in judicial terms, rule, “I don't care.”
Eight justices decided not to make that decision, all but Justice Clarence Thomas sticking to the precedent that the other five had abandoned just two years earlier, leaving Thomas alone at the bottom, complaining plaintively that the Court “could not point to a single historic statute that has stripped a citizen of their Second Amendment rights because of the potential for interpersonal violence.”
Of course, I'm taking a bit of liberty here. I don't know if the justices understood their dilemma in this way. But it's impossible to see the outcome of United States v. Rahimi as anything other than an attempt at institutional self-preservation. It was certainly not an attempt at judicial consistency. Chief Justice John Roberts' majority opinion received eight votes, but five of the majority members felt compelled to express their own contrasting, if not outright contradictory, views in separate opinions.
Clearly, the Supreme Court's terse 18-page opinion did not entirely satisfy all of its signatories. Often in cases like this, justices who agree with the opinion writers' conclusion but have widely differing views on how to get there don't sign the main opinion, but write a separate opinion “concurring with the judgment.” When this happens enough times, the majority opinion no longer speaks for the majority of the Court. That didn't happen this time. I think it's because all eight of them recognized the absolute need for the Court to tell the world, at least with a nominally unified voice, that “we didn't intend for it to end up like this when we reformed Second Amendment law two years ago in New York State Rifle & Pistol Association v. Bruen.”
The Rahimi case will be heard on November 7, 2023, and when the Court issues its decision on Friday, it will be the oldest pending case this term. What happened in the last eight-plus months? It must have taken a lot of individual and collective effort to reach a final conclusion. Not all conservative justices would have immediately agreed with the Supreme Court's opinion, at least not before expressing their own opinion.
Justice Neil Gorsuch seemed especially uneasy. At the end of his brief dissenting opinion, he noted that the case was a “facial challenge” to the statute, a tall burden for plaintiffs because they must show that a law that is “facially” unconstitutional has no lawful application. “The case before us does not raise an issue whether the statute it challenges can always be lawfully applied, or whether other statutes are permissible, but only whether the statute has lawful scope,” Justice Gorsuch wrote, adding that “future litigants and courts should not read any further into our decision.” Got it.
Justice Brett Kavanaugh's 24-page concurring opinion was a passionate defense of the Court's reliance on history in Second Amendment cases, and by extension, other constitutional cases. “History is less subjective than policy,” he wrote, adding, “and reliance on history is more consistent with an appropriately impartial judicial role than an approach in which judges seek to subtly (or not) impose their policy views on the American people.”
As Justice Kavanaugh knew, these are highly contentious statements within the Court. Earlier this month, in dissent from Justice Thomas' reliance on history in the trademark case, Justice Amy Coney Barrett said, “Relying solely on history and tradition may seem like a way to get around a judge-created test. But the rule that makes tradition conclusive is itself a judge-created test.” The debate continues.
In Bruen v. New York, Justice Thomas wrote in a 6-3 majority that struck down New York's gun license law that all restrictions on gun ownership are presumed to be unconstitutional unless there is identical or very similar historical precedent at the founding of the nation. In Rahimi, applying a novel history-all-trades approach to federal law, the Fifth Circuit found that no one had taken guns away from perpetrators of domestic violence in the 18th century.
Chief Justice Roberts argued that Justice Bruenn had misunderstood this: the Court did not mean to suggest “law trapped in amber” but simply to ask “whether the regulation at issue is consistent with the principles underpinning our regulatory tradition.”
This was the first time Justice Thomas had heard this, and he countered that “there is no historical regulation that justifies the statute at issue.”
But Chief Justice Roberts approved two provisions, both of which had been imported from English common law: one provided for jail time if a person deemed likely to “disturb the peace” by abusing his spouse or misusing a firearm was released on bail, and the other allowed for the disarmament of those who used weapons to “terrorize the good people of the country.”
“Since our nation's founding, our firearms laws have contained provisions prohibiting the misuse of firearms by individuals who threaten physical harm to others,” the justices wrote, concluding that the law at issue in this case “fits well into that tradition” and is “common sense.”
There is a big difference between a “spot-fit” principle, on the one hand, and similar regulations that must match nearly perfectly, on the other. Which requirement represents the true Bruen decision, a decision that the Chief Justice and four members of the 2024 majority signed just two years ago? It is tempting to conclude that these justices wanted to reinterpret Bruen without explicitly rejecting it.
That may be true, but there was something else here that had implications not just for this case but beyond Second Amendment doctrine as a whole. For years, mostly behind the scenes, members of the Court have had significant debates about the level of generality to apply when interpreting the Constitution. Chief Justice Roberts and Justice Thomas both agreed in this case that history holds the answer, but the Chief Justice surveyed the 18th century situation as a whole, while Justice Thomas dug around looking for the perfect parallel.
In her concurring opinion, Justice Barrett identified what she called the “level of generality problem” that has plagued lower courts in applying Bruen. “Must the government present a Founding-era relative, a cousin, if not a twin, of the challenged regulation?” she asked. “Or do Founding-era gun laws give rise to specific principles that delineate the boundaries of that right?”
Justice Barrett went on to say that “historical regulations reveal principles, not patterns.” But she warned that “certainly, courts must be careful not to interpret principles so generally that they weaken rights.” She said the Court got it right this time, and that “the more difficult questions of generality can wait for another day.”
That day may be coming soon. Awaiting the justices' decisions are petitions raising a variety of Second Amendment questions: whether people convicted of felonies, whether for felonies or nonviolent crimes, can be stripped of their right to own guns; whether state bans on assault weapons are constitutional; whether guns can be barred from certain “sensitive locations”; what principles should apply in a post-Bruen, post-Rahimi world? What analogies will suffice?
And who would say?
Linda Greenhouse, a 1998 Pulitzer Prize winner, covered the Supreme Court for The Times from 1978 to 2008 and was a contributing opinion writer from 2009 to 2021.
The Times is committed to publishing diverse letters to the editor. We want you to tell us what you think about this story and our others. Here are some tips: Email us at letters@nytimes.com.
Follow The New York Times Opinion section on Facebook, Instagram, TikTok and WhatsApp. X And threads.
