Bruen and Rahimi
Two years ago, in New York State Pistol and Rifle Association v. Bruen, the Supreme Court held that the government could justify a firearms regulation under the Second Amendment only by “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” The government could make this showing only by pointing to historical regulations analogous to the regulation under review.
Now, in United States v. Rahimi, the Court has upheld a federal statute forbidding possession of a firearm by someone subject to a domestic violence restraining order, as long as this order was based on “a finding that [this person] poses a ‘credible threat to the physical safety’ of a protected person.” Every member of the Court except Justice Clarence Thomas joined Chief Justice John Roberts’s majority opinion. Complaining that “some courts have misunderstood the methodology of our recent Second Amendment cases,” Roberts purported to apply the Bruen standard without modification.
What made disarming domestic abusers consistent with the nation’s historical tradition of firearms regulations? It certainly wasn’t that domestic abusers were barred from possessing weapons in the 18th or 19th centuries. As one federal district judge observed: “Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.”
Was it, then, that people other than domestic abusers—Native Americans, enslaved people, free Blacks, Catholics, and people who refused to swear allegiance to the Commonwealth of Pennsylvania or the Commonwealth of Virginia—had been disarmed in the past? No, it wasn’t that either. Some courts had concluded that, under Bruen, these discriminatory disarmaments could justify the disarmament today of nonviolent felons, violent felons, drug addicts, the mentally ill, minors, and domestic abusers. But Chief Justice Roberts didn’t rely on any of these past, shameful disarmaments.
Rather, Roberts described what he called “surety” and “going armed” laws and said: “Taken together, [these] laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” This statement and others in the majority and concurring opinions might have led you to believe that “surety” and “going armed” laws disarmed people, but they didn’t.
Surety laws simply provided that someone who carried a dangerous weapon in a way that put someone else in fear or threatened the public peace could be required to find sureties who’d post a monetary bond. This bond would be forfeited if the weapon-carrier then broke the peace within a specified period. But, even then, no one took his weapon away.
According to Roberts, “the going armed laws prohibited ‘riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land.’” He added, “[T]he law punished these acts with ‘forfeiture of the arms . . . and imprisonment.’” The language he quoted came from a 1769 treatise by Sir William Blackstone, who in turn relied on an English statute enacted in 1328. This statute spoke only of forfeiting “armor” because no firearms had yet appeared in Europe. But, when firearms appeared, the statute included them. Four American states had statutes patterned on the medieval statute, and a few others punished going armed as a common law crime.
Someone who forfeited a gun as an “instrumentality” of going armed could go home to pick up another or, if he didn’t have a spare, buy a new one. If imprisoned, he’d lose access to his firearms while locked up, but he could resume possession as soon as he was released. Unlike the defendant in Rahimi, neither this offender nor someone ordered by a court to post a bond was disarmed (except insofar as anyone locked up for anything loses access to his weapons for reasons that don’t resemble those offered for disarming domestic abusers).
Bruen was different. In that case, the Court acknowledged that two states and several U.S. territories had 19th-century statutes closely analogous to the one it struck down. The Court dismissed these acknowledged analogues as “outliers.” In Rahimi, as Justice Thomas noted in dissent, “not a single historical regulation” closely resembled the challenged statute. But the Court upheld the statute anyway. Josh Blackman, an originalist scholar, titled a blog post: “Rahimi, Meenie, Miney, Mo; After Only Two Years Bruen’s Gotta Go.”
The Ground Begins to Rumble
In Bruen, the Court rejected a standard for judging firearms regulations approved by eleven of the thirteen federal courts of appeals (all that had considered the issue). This standard would have allowed courts to take account of the interest of domestic-violence victims in not being shot. The Supreme Court, however, forbade consideration of this interest along with all others, dismissing “judge-empowering ‘interest-balancing’” as “one step too many.”
As Rahimi showed, the Court’s repudiation of interest balancing didn’t work. Because most firearms regulations are intended to promote individual or public safety, a court can almost always find similarities between old ones and new ones when it wants to, and it can almost always find differences. Bruen didn’t bring balancing to an end; it camouflaged the process with a splattering of irrelevant history and moved it beneath the table. “Taken together,” the Chief Justice wrote, “the surety and going armed laws confirm what common sense suggests.”
When the Court announced its ruling in Rahimi, an army of Court watchers exclaimed: Whew! Amen! and Praise the Lord! Especially when the issue was the validity of a popular statute that seemed likely to save lives, bending Bruen a little (or a lot) looked better than playing it straight. The Chief Justice apparently had cobbled together an opinion that brought almost all of the Justices aboard and saved the day. Huzzah! But the day would have been happier still if any of the Justices who joined the Bruen opinion had said frankly that two years of effort by lower courts had failed to make any sense of this decision and that repudiating or modifying its standard was necessary.
Confessions of error by Supreme Court Justices are rare, but they happen. And, as Justice Ketanji Brown Jackson noted in a concurring opinion: “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.” Jackson observed that “confusion plagu[es] the lower courts” and that “Bruen’s history-and-tradition test [is] creating chaos.”
As later sections of this Article will show, Bruen relied on irrelevant history, ignored a wealth of relevant history, announced a standard that lacked any textual or originalist justification, imposed a “mission impossible” burden of proof, and failed to recognize the need for some balancing when text and history offer no answer.
Justice Kavanaugh Explains It All
Justice Brett Kavanaugh wrote a 24-page concurring opinion in Rahimi that Josh Blackman remarked was about 24 pages too long. This opinion made the question of how to approach constitutional interpretation sound easy. The issue was whether to rely on history or make everything up:
[A]bsent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history and policy.
Generally speaking, the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text. The policy approach rests on the philosophical or policy dispositions of the individual judge.
History, not policy, is the proper guide. . . .
Judges are like umpires, as The Chief Justice has aptly explained. . . . When properly applied, history helps ensure that judges do not simply create constitutional meaning “out of whole cloth.”
As I’ve said for nearly 40 years, the Supreme Court has overused interest balancing. I’m no fan of the Court’s formulaic tiers of review. But the Court’s and Justice Kavanaugh’s claim that text and history can do it all and eliminate any need for interest balancing seems infantile.
Here’s a quick illustration: Concurring in Bruen, Justice Kavanaugh said that this decision would allow states to require firearms training as a condition of obtaining a firearms license. But Kavanaugh probably wouldn’t approve requiring 70 days of full-time bootcamp training. The text of the Second Amendment doesn’t tell him where to draw a line between two hours and 70 days. Neither does history. Kavanaugh, an unelected judge with “philosophical and policy dispositions,” must draw this line himself. As Justice Oliver Wendell Holmes said, judges legislate “interstitially.” Part of a judge’s job is to determine when interest balancing is appropriate and when it isn’t.
The Lessons of History
Justice Kavanaugh prefers history to policy. Does it matter what history? Why probe for legislative analogues? Bruen says the goal of this scavenger hunt is to determine whether a challenged provision is one our ancestors would have accepted.
Founding-era laws sometimes answer that question. The people who wrote and ratified the Bill of Rights didn’t regard flogging and capital punishment as cruel and unusual. We know they didn’t because they imposed both punishments frequently, and no one complained that the punishments were unconstitutional. Similarly, if a modern legislature were to reenact the founding-era laws upon which Rahimi relied, we’d have good reason to believe that, if members of the founding generation were resurrected and not told how things had changed, they wouldn’t invoke the Second Amendment to strike these laws down.
As Bruen said and Rahimi emphasizes, antique laws need not be the “twins” of current laws to be relevant to the originalist inquiry. But do eight Justices of the Supreme Court (or any of them) truly believe that surety and going-armed laws demonstrate that the founders would have approved the total disarmament of domestic abusers? In Rahimi, the inquiry demanded by Bruen seemed to take on a life of its own.
Legislative Silence Isn’t Relevant
Bruen’s most serious error was its assumption that the analogy game works both ways. It was the absence of founding-era analogues that sank the statute at issue in Bruen, and the failure of legislatures to act has no significant bearing on the original meaning of the Constitution. It shows only that people saw no need for a particular sort of law or no way to implement laws of this sort. The Bruen majority missed the distinction between declining to act and lacking the power to do so. Counting “yes” and “no” answers to the analogy hunt equally, it “affirmed the consequent” and embraced “the fallacy of the converse”: All cats have tails. That animal has a tail. So, it must be a cat.
An astonished commentator, Andrew Koppelman, put it this way: “This isn’t originalism. It is historical fiction. Congress has never mandated that the Capitol building be painted with big red polka dots. That is not evidence that the Constitution prohibits such a decorative choice.”
In Rahimi, one member of the Bruen majority adverted to the glaring error that permeated the earlier opinion. In the most thoughtful of Rahimi’s five concurring opinions, Justice Amy Coney Barrett wrote that a “serious problem” posed by the demand for “overly specific analogues” is the assumption “that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority.” Barrett observed that this assumption is “flawed” and that “originalism does not require [it].” “Here, though,” she said, “the Court settles on just the right level of generality.”
Barrett’s acknowledgement that founding-era legislatures can’t be assumed to have “maximally exercised their power to regulate” is right on the mark. It may prove to be the most significant aspect of Rahimi apart from its result. Contrary to Barrett’s suggestion, however, this error has nothing to do with the demand for overly specific analogues or the level of generality. A legislature’s failure to enact a twin tells you nothing about the meaning of the Second Amendment, and its failure to enact a measure that would qualify as an aunt or cousin says nothing either. If no legislature had ever enacted any firearms regulations and the first appeared yesterday, this regulation would have no historical analogue. But the absence of an analogue would neither show nor indicate that the regulation was unconstitutional. Abandoning the “‘use it or lose it’ view of legislative authority” would bring Bruen’s misguided standard crashing down.
Nothing about Bruen is originalist. No member of the founding generation is known to have declared that Second Amendment inverts the presumption of constitutionality and renders all firearms regulations presumptively unconstitutional. None is known to have said that only arms limitations sufficiently analogous to well-established historic limitations can pass constitutional muster. None appears to have suggested that judges should never balance interests. And surely none imagined even for a moment that legislative silence has any bearing on the scope of the right to bear arms. Judges purporting to be originalists created the Bruen standard all by themselves.
The Court’s reliance on irrelevant history was aggravated by its disregard of relevant history. From shortly after the ratification of the Second Amendment until the Supreme Court decided District of Columbia v. Heller in 2008, state, municipal, and (starting in 1934) federal legislatures enacted firearms regulations with apparent abandon. Their guiding principle seemed to be “whatever looks beneficial today.” The courts posed no impediment. Legislatures enacted thousands of firearms restrictions between 1791 and 2000, but only twenty or so reported decisions held any of them unconstitutional. No federal court struck down even one.
When firearms restrictions were challenged in the 19th century, courts explained that the right to bear arms “leave[s] with the Legislature the authority of adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals.” Although a statute which “amounts to a destruction of the right . . . would be clearly unconstitutional, a law which is intended merely to promote personal security, and to put down lawless aggression and violence . . . does not come in collision with the constitution.” Departures from the view that the “police power” of every state justified reasonable firearms regulations were rare, and reading what 19th-century opinions said and attempting to determine how 19th-century courts understood the right to bear arms differs greatly from counting analogues.
The standards, principles, and rulings of the earliest decisions concerning the right to bear arms show clearly why an originalist judge should uphold Congress’s prohibition of gun possession by domestic abusers. They supply far better historical evidence than the existence of surety and going-armed laws. But, perhaps because the earliest decisions justify not only the statute upheld in Rahimi but also all other reasonable firearms regulations, the Supreme Court has turned a blind eye to them.
Will “Principle” Rule the Future?
Chief Justice Roberts’s opinion for the Court in Rahimi declared: “[T]he appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Although Justice Neil Gorsuch joined this opinion, he warned in a concurring opinion: “Allow judges to . . . extrapolate their own broad new principles from [text and history], and no one can have any idea how they might rule.”
Justice Kavanaugh quoted Justice Antonin Scalia for the proposition that “constitutional interpretation should reflect ‘the principles adhered to, over time, by the American people,’” and Justice Barrett declared that “historical regulations reveal a principle, not a mold.” She cautioned, however, that “a court must be careful not to read a principle at such a high level of generality that it waters down the right” and added: “Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.”
Justice Jackson emphasized the Court’s ruling that “gun regulations need only ‘comport with the principles underlying the Second Amendment.’” Quoting a law review article, she hoped that “appellate courts, including ours, will find a way to ‘[b]rin[g] discipline to the increasingly erratic and unprincipled body of law that is emerging after Bruen.’”
A concurring opinion by Justice Sonia Sotomayor, joined by Justice Elena Kagan, underscored the Court’s statement that a challenged regulation need only comport with the principles underlying the Second Amendment. It did so not only once but five times. In dissent, Justice Thomas warned of the “dangers of approaches based on generalized principles.” He declared that any “principle-based approach [resembling the one proposed by the government] would hollow out the Second Amendment of any substance,” and he added that “the Court should remain wary of any theory . . . that would exchange the Second Amendment’s boundary line . . . for vague (and dubious) principles.”
One can infer principles from the wide-ranging firearm regulations approved by legislatures in states whose constitutions guaranteed the right to bear arms. One can also infer them from the many judicial rulings upholding these regulations and the few striking some down. But there is no need to infer any principles at all, for 19th-century judges shouted aloud the one that should matter to originalists: Regulations that reasonably further public safety and don’t destroy the right are OK.
Like firearms restrictions approved after 1791, the statements in 19th-century judicial opinions are “post-enactment history,” but they’re by far the best evidence available of the original meaning of the right to bear arms. The prior history is sparse. It consists mostly of surety laws, going-armed laws, gunpowder-storage laws, laws disarming disfavored groups like Catholics and British loyalists, the promise of the English Bill of Rights of 1689 that “Protestants may have Arms for their Defense suitable to their Conditions, and as allowed by law,” and William Blackstone’s statement that the right to bear arms is subject to “due restrictions.”
Rahimi inferred a less sweeping principle than the one articulated in the early cases: Legislatures may authorize the temporary disarmament of someone who has been given notice and an opportunity to appear and then has been found by a court to pose a credible threat to the physical safety of a specified individual. This principle settles nothing beyond the issue in Rahimi itself. It’s not much of a principle.
After Rahimi, government lawyers will continue to probe the public notice sections of 19th-century newspapers for analogues. Lower courts will continue to disagree about the validity of firearms regulations while acknowledging that they’re ill-qualified to make the inquiry that Bruen demands. And the Supreme Court will be required to accept many cases to keep the Second Amendment from having different meanings in Philadelphia and Kansas City.
In resolving these cases, the Justices probably will be more divided than they were in Rahimi. In each, some will point to similarities to asserted analogues while others will point to differences. But none of the Justices are likely to vote differently than they would have if they’d been deliberating about “undue burdens” or “governmental interests” rather than history. The Court may draw lines—for example, between dangerous and non-dangerous felons—that will prompt years of further litigation and (ahem) interest balancing. Three days after the Rahimi decision, the Solicitor General asked the Court to grant certiorari in three cases in order to determine whether Congress had validly prohibited gun possession by (a) people convicted of violent felonies, (b) people convicted of non-violent felonies, and (c) people convicted of drug felonies.
Justices Sotomayor and Kagan, who dissented in Bruen, reiterated in Rahimi that they thought Bruen was wrongly decided. Justice Jackson made clear that she’s prepared to join them in overruling that decision. I think the day may come when justices whose “philosophical and policy dispositions” differ greatly from those of Justices Sotomayor, Kagan, and Jackson will also acknowledge that Bruen is unsound and unworkable. Hardcore originalists may realize that Bruen discredits them and their jurisprudential cause.
The demise of Bruen is unlikely to come quickly. The decision’s façade will stand as judges continue to nibble away at it. But the sooner it falls, the better.
