On Guns, the Supreme Court Can’t Shoot Straight
By judging today’s gun laws against what prevailed in the age of muskets, the conservative justices have left lower courts and legislatures without any guidance.
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The Supreme Court’s Second Amendment case law consists of serial sea changes; and its latest entry showcases the limits of an interpretive method tied to recovering the determinate meaning of words written in the past, as the justices battled over the meaning of their ruling just two years prior. First, in 2008, in District of Columbia v. Heller,the Court declared for the first time that that 217-year-old constitutional provision protects an individual right to have guns for self-defense unconnected from any militia purposes. Two years later, in City of Chicago v. McDonald, it applied that ruling to state and local governments, where the vast majority of firearm regulation has occurred throughout this nation’s history. And two years ago, in New York State Rifle & Pistol Association v. Bruen, the Court announced a radical new history and tradition test for reviewing Second Amendment claims. Last week, the Court in United States v. Rahimi applied its new past-bound test to the modern problem of armed domestic violence. In that ruling, the Court sowed substantial uncertainty yet again–and undermined the originalist premise on which its Second Amendment precedents stand: that judges can reliably recover and apply the single fixed meaning of a contested legal text.
Under the Bruen test, if a challenged law implicates the Second Amendment’s “plain text,” the government must prove the law is “consistent with this Nation’s historical tradition of firearms regulation.” Justice Clarence Thomas’s Bruen opinion underlined the government’s obligation to come forward with historical analogs that judges would compare to modern laws; historical precursors would be found “relevantly similar” if they shared comparable justifications and imposed comparable burdens. That test proved just amorphous enough to leave legislators uncertain about their lawmaking authority and, at the same time, provide judges ample discretion to uphold or invalidate gun laws based on their views of the laws’ policy wisdom.
Enter the U.S. Court of Appeals for the Fifth Circuit. In March 2023, a unanimous three-judge panel reversed Zackey Rahimi’s conviction for unlawful gun possession. Rahimi had violated a federal law, 18 U.S.C. § 922(g)(8), which bars gun possession by individuals subject to certain domestic violence restraining orders. He argued that Bruen’s historical test meant the law was unconstitutional. After all, he asserted, the founders were aware of domestic violence, yet they didn’t disarm abusers: “The Founders could have adopted a complete ban on firearms to combat intimate-partner violence. They didn’t.” Under one view of Bruen, that’s all he should have needed to win: the absence of “analogous” regulations in the past. Remarkably, all three appeals court judges agreed. Quoting Bruen, they “conclude[d] that § 922(g)(8)’s ban on possession of firearms is an ‘outlier that our ancestors would never have accepted.’”
One telling aspect of the debate in the lower courts and much of the Supreme Court briefing was the silence about the real-world implications of invalidation. Lost in all the scouring through history was modern-day reality. A woman in an abusive relationship is five times more likely to be killed by an intimate partner when the partner has access to firearms. Nearly a million women have been shot or shot at by an intimate partner, and a staggering 4.5 million have been threatened with a gun.
The blindness to this reality was, unfortunately, by design. Bruen hadtried to divorce constitutional adjudication from contemporary concerns. It sought to set in centuries-old stone the state’s power to secure public safety. Rahimi was a test case for that method. Did it really require invalidating life-saving gun laws that are narrowly tailored to address a small subset of dangerous individuals shown to be a grave threat to others?
When the case came before the Supreme Court, the justices grappled with how to interpret a complex legal text securing gun rights. But that contested text was not that of the Second Amendment (which is not quoted in the majority opinion); rather, the focus of the interpretive dispute was the text of Bruen. In an opinion written by Chief Justice John Roberts, eight justices read Bruen to mandate a historical test at least partly responsive to contemporary changes. That test did not, to use the Court’s memorable phrasing, “suggest a law trapped in amber.” The majority reasoned that the Second Amendment protects more than muskets and permits more than doppelgangers of 18th-century regulations. Under this reading of Bruen, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” (Emphasis added.) For the majority, Bruen did not require trotting out individual historical regulations and comparing them one by one to the challenged law. According to Rahimi, Bruen allowed government some leeway to regulate in ways not contemplated by the founding generation. Instead of a match to individual historical laws, a challenged law under the Rahimi reading of Bruen “must comport with the principles underlying the Second Amendment.” (Emphasis added.)
If applied sensibly, a principles-based approach would be much better than the regulation-based approach many courts read Bruen to prescribe. But how much more guidance does it give lower courts? The Supreme Court’s application of those principles to Rahimi covers that law—and maybe some red flag laws—but not much else. The majority characterized the narrow principle it drew from history at a level of specificity that seemed tailored to decide only this singular challenge: “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”
Questions abound about the scores of Second Amendment cases awaiting Rahimi’s resolution.Must a judge assess a “clear threat”? Could a mental health professional, for example, make that determination? Can a legislature make categorical judgments about classes of people, like intoxicated individuals or those with convictions for crimes of violence, or is disarmament only permissible based on a personalized threat assessment? Can a ban on gun possession remain permanent, or must the prohibition be time-limited?
The stakes of the answers to these questions are high. Days after the decision in Rahimi, the federal government renewed its request for the Supreme Court to resolve the constitutionality of the federal law barring gun possession by those with felony convictions. The government’s “supplemental brief” argued that Rahimi did not offer enough clarification to resolve the lower court disagreement. As it pointed out in its filing, that single law accounted for an astonishing 12 percent of all federal criminal cases in Fiscal Year 2022. “Uncertainty about the statute’s constitutionality,” the government wrote, “thus affects a significant proportion of the federal criminal docket.” Many states have similar prohibitions that are called into question by uncertainty about Bruen. And that’s to say nothing of the other types of laws that Rahimi offers very little help in resolving, including assault weapon bans, prohibitions on guns in sensitive places, regulations of gun accessories like pistol braces and Glock switches, firearm waiting period laws, and much more. If part of the reason the Court decided to review the Rahimi case was to settle open questions about Bruen, it largely failed.
The lone dissenter was, in fact, Bruen’s author, Justice Clarence Thomas. In his view, the Fifth Circuit was correct. No laws worked similarly in the days of yore, those halcyon days of coverture and women’s nearly invisible legal status, so the modern law could not stand. While the majority wrote that “some courts have misunderstood the methodology of our recent Second Amendment cases,” Thomas—who, again, wrote Bruen—said it was the majority who misunderstood the test. For Thomas, that test does trap state power in founding-era amber. The test requires the government to produce specific historical laws “relevantly similar” to modern law, not squishy collections of disparate laws from which “principles” supposedly emanate. Three times, Thomas underscored what he saw as the central problem in the government’s defense of the law: failure to produce “a single historical regulation” to support the modern prohibition.
In Rahimi, the justices committed to applying the original public meaning of centuries-old legal texts disagreed vociferously about the meaning of a text one of them penned, and all of them joined, just 24 months ago. Eight justices accused the Bruen author of misunderstanding his own words; the author accused the eight of acceding to the government’s attempt to “rewrite the Second Amendment and the Court’s precedents interpreting it.” A separate concurrence by Justice Sonia Sotomayor was devoted to demonstrating “why the Court’s interpretation of Bruen, and not the dissent’s, is the right one.” Some of that dispute was about the specificity of Bruen’s broad test; much of it, however, was over the import of the words and ideas the chosen terms expressed—what does it mean to be “relevantly similar,” “analogous enough,” or “consistent with” historical tradition? In other words, Rahimi was largely about the contested original public meaning of Bruen’s phrases. The justices whose actions made these words law—the ratifiers of the Bruen decision, so to speak—could not agree on its meaning. That should give us serious pause about the soundness of an interpretive method that turns on the ability of judges to locate the fixed meanings of documents drafted a quarter millennium ago.
Rahimi is the bare minimum we should expect of the Supreme Court. Actually, it’s below that bar. We should, to be sure, expect the justices to reject legal theories that demonstrably endanger society based on tendentious readings of the Constitution. But we should also expect some semblance of clarity from them as the apex court in our judicial system. They can’t decide every significant dispute. But they can—or should at least aspire to—provide direction to the thousands of lower court judges tasked with making monumental and effectively final decisions daily. The Court in Rahimi seems not to have even tried. It certainly has not cleaned up the cacophonous confusion in the lower courts since Bruen. Our long national nightmare, spawned by a test tying lawmakers’ hands to the masts of the past, is not yet over.
Jacob D. Charles is Associate Professor of Law at Pepperdine University. His scholarship focuses on the Second Amendment and firearms law. Before taking a post at Pepperdine, he served as the inaugural executive director of the Center for Firearms Law at Duke University School of Law.
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