What the justices are writing about when they write about Rahimi

The decision took a long time because seven justices wrote. An 8-1 ruling in favor of a gun restriction, but strong disagreements about the future — and the past.

Jun 21, 2024

On Friday, the U.S. Supreme Court upheld the federal ban on firearm possession by a person with a domestic violence order out against them.

Only Justice Clarence Thomas dissented from Chief Justice John Roberts’s decision for the court in United States v. Rahimi. What’s more, every justice in the majority joined Roberts’s succinct, 18-page opinion rejecting Zackey Rahimi’s facial challenge to Section 922(g)(8) as a violation of the Second Amendment.

The decision was a not-so-subtle scaling-back of Thomas’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, despite that Roberts insisted Friday’s decision was only clarifying Bruen in light of the fact that, as he put it, “some courts have misunderstood the methodology of our recent Second Amendment cases.”

OK, Chief.

So, what did they conclude? As Roberts explained:

When a restraining order contains a finding that an indi- vidual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individu- als who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.

Again, everyone except Thomas agreed with that. Thomas, instead, insisted Bruen made “clear” that his one-justice dissent on Friday was correct.

Given his authorship of Bruen, his dissent on Friday is honestly the strongest evidence that Friday’s decision was, indeed, a pulling back from Bruen.

Beneath Roberts’s opinion presenting a united front against Thomas’s thinking, though, every justice in the majority, save for Justice Sam Alito, also wrote separately or joined one of the 49 pages of concurring opinions.

So, what was that about?

Justice Sonia Sotomayor, joined by Justice Elena Kagan, reiterated that “Bruen was wrongly decided,“ but wrote to highlight two main points. First, Sotomayor wrote, “Even under Bruen, this is an easy case.” Second, she — again, with Kagan — made perfectly clear that this was, indeed, a pull-back of Thomas’s vision for Bruen:

The Court today clarifies Bruen’s historical inquiry and rejects the dissent’s exacting historical test. I welcome that development. That being said, I remain troubled by Bruen’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the prob- lems facing our society today. In my view, the Second Amendment allows legislators “to take account of the seri- ous problems posed by gun violence,” Bruen, 597 U. S., at 91 (Breyer, J., dissenting), not merely by asking what their predecessors at the time of the founding or Reconstruction thought, but by listening to their constituents and crafting new and appropriately tailored solutions.

This was, in its way, Sotomayor picking up where now-retired Justice Stephen Breyer left off in his Bruen dissent for the trio-turned-duo.

And yet, the many opinions were in significant part a debate among the newer members of the court about the role of constitutional interpretation and the limits of originalism.

Justice Neil Gorsuch wrote what, I believe, is a sonnet to originalism.

I appreciate that one of our colleagues sees things differ- ently. Post, at 6–7 (THOMAS, J., dissenting). But if reason- able minds can disagree whether §922(g)(8) is analogous to past practices originally understood to fall outside the Sec- ond Amendment’s scope, we at least agree that is the only proper question a court may ask. Post, at 5. Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper

lane, seeking to honor the supreme law the people have or- dained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern dis- putes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.) Allow judges to reign unbounded by those materials, or per- mit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.) Faithful ad- herence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.

Justice Brett Kavanaugh wrote a book report …

… about how much he loves Antonin Scalia.

In relying on post-ratification history as a proper tool to discern constitutional meaning, Madison and Marshall make for a formidable duo. Moving from distant American history to more recent times, one can add Justice Scalia. Throughout his consequential 30-year tenure on this Court, Justice Scalia repeatedly emphasized that constitutional interpretation must take account of text, pre-ratification history, and post-ratification history—the last of which he often referred to as “tradition.” In his words, when judges interpret vague or broadly worded constitutional text, the “traditions of our people” are “paramount.” McDonald v. Chicago, 561 U. S. 742, 792 (2010) (Scalia, J., concurring).

Laying it out more directly than she already had through an opinion she joined and one partial concurrence she wrote earlier this term, Justice Amy Coney Barrett made clear that she has concerns with originalism — and particularly Thomas’s originalism in Bruen.

Courts have struggled with this use of history in the wake of Bruen. One difficulty is a level of generality problem: Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin? Or do found- ing-era gun regulations yield concrete principles that mark the borders of the right? Many courts, including the Fifth Circuit, have under- stood Bruen to require the former, narrower approach. But Bruen emphasized that “analogical reasoning” is not a “reg- ulatory straightjacket.” 597 U. S., at 30. To be consistent with historical limits, a challenged regulation need not be

an updated model of a historical counterpart. Besides, im- posing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century reg- ulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” Ante, at 7. And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of leg- islative authority. Such assumptions are flawed, and originalism does not require them. “Analogical reasoning” under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold.

Justice Ketanji Brown Jackson, meanwhile, made explicit what was implicit in the majority opinion and suggested in Sotomayor and Barrett’s opinions:

I write separately because we now have two years’ worth of post-Bruen cases under our belts, and the experiences of courts applying its history-and-tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up “misunderst[andings],” ante, at 7, is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.

In all, Friday’s ruling in United States v. Rahimi was clear. As with Thursday’s decisions, however, there remains much unresolved — but not unwritten here — for future gun cases and for the future of originalism.

Joe From the Bronx

Jun 22

Roberts: I'll clean up the mess.

Sotomayor/Kagan: Okay, Chief. Shouldn't have made it in the first place, tbh

Gorsuch: Muses of Originalism, inspire me

Kavanaugh: Blah blah blah

Barrett: I'm okay with role playing originalism. If we do, we need to stick with the originals. Clarence tossed in some slipshod "history and tradition" stuff. Not my thing.

Jackson: Okay. It's wrong, but it's the law now. Fine. I concur. But, you know, to be real, it's a mess. We did it. Kinda shouldn't be blaming the victims.

Thomas: I meant what I said before, guys.

Alito (MIA for the last two days): I like the result here. It's a mess, really. But, not going to ruin it. So, I'm staying out of this, guys.

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John Michael Slocum

Lots of repeated "history" from the Republicans with an apparent move toward the middle by Barrett. Jackson had it right. Bad test, bad history, and Thomas makes it plain that he only likes his own history, not anything that might change his Wild West today approach.

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What the justices are writing about when they write about Rahimi

The decision took a long time because seven justices wrote. An 8-1 ruling in favor of a gun restriction, but strong disagreements about the future — and the past.

Discussion about this post