Last February, the far-right United States Court of Appeals for the Fifth Circuit held that a federal law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order” is unconstitutional. On Friday, the Supreme Court announced that it will hear this case.
It is fairly likely that the justices will reverse the Fifth Circuit’s extraordinary decision — as many as six current members of the Court have signaled that, while some of them support an expansive reading of the Second Amendment right to bear arms, the Fifth Circuit’s decision in United States v. Rahimi goes too far. Justice Brett Kavanaugh has endorsed some prohibitions on gun possession by people who have not been convicted of a felony, including laws prohibiting people with serious mental illnesses from owning guns. Justice Amy Coney Barrett, meanwhile, wrote when she was still a lower court judge that “legislatures have the power to prohibit dangerous people from possessing guns.”
A more uncertain question is whether the Court will use the Rahimi case to impose some coherence on the incomprehensible approach to the Second Amendment that it announced just one year ago in New York State Rifle & Pistol Association v. Bruen (2022).
Bruen held that huge swaths of US gun laws must fall unless the government can prove that “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” And it instructed judges to determine whether a particular challenged gun law is consistent with this tradition by searching for “historical analogies” in early American firearm regulations.
In practice, however, it is often impossible to draw precise analogies between today’s gun laws and those from two centuries ago, because both American society and firearms technology have changed so much since the Second Amendment was ratified.
Consider, for example, the federal ban on machine guns. The machine gun was not even invented until 1884, so anyone hunting for early American laws banning this kind of weapon will come up blank. That said, Bruen also acknowledged that the United States has a “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” so a judge who wishes to uphold the machine gun ban could point to this language in Bruen to justify such a decision.
Or consider, for that matter, the law at issue in Rahimi, which prohibits many individuals who are “subject to a court order” that restrains them from “harassing, stalking, or threatening an intimate partner” from possessing a gun. Notably, this law applies to individuals who have not yet been convicted of a crime, but who have had a court proceeding that determined they are a danger to their partner or their partner’s children.
In defending this law, the Justice Department points to various English, colonial American, and early US laws that disarm people “considered to be dangerous.” But DOJ is unable to cite any laws from these eras that specifically prohibit people who abuse their intimate partners from possessing a gun, because no such laws existed at the time. Indeed, it was legal in all 50 states for married partners to beat their spouses until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other.”
Bruen, in other words, requires judges to weigh gun regulations using a tool — historical analogies — that is wholly unsuited to that task. Asking judges to determine whether any 18th-century laws resemble modern-day gun regulations is a bit like asking how James Madison would have regulated smartphones. Early Americans simply did not possess weapons that in any way resemble today’s firearms, and we have no idea how they would have regulated more modern weapons.
Worse, because Bruen held that, in tough cases, the “government must demonstrate” that a modern gun law “is consistent with this Nation’s historical tradition of firearm regulation,” the onus is on the government to find sufficient evidence to defend laws already on the books, rather than on people challenging a regulation. That means that courts are now striking down gun laws that few people would find objectionable because, in the absence of evidence that the framers would have supported a modern-day law, the law typically must be struck down.
Bruen is wreaking havoc on US gun laws
In the year since Bruen was decided, federal courts have stuck down numerous gun laws, including the ban on domestic abusers possessing firearms that was struck down in Rahimi, that impose fairly modest limits on gun owners.
A federal judge in West Virginia, for example, struck down a federal law that prohibits possession of a firearm if the gun’s serial number has been filed off or otherwise removed. Judge Joseph Goodwin’s opinion in United States v. Price acknowledged that this law makes it possible to track firearms to help keep them “out of the hands of ‘individuals whose possession of them would be contrary to the public interest.’” But he nonetheless concluded that Bruen requires this law to be struck down because the first guns that were marked with serial numbers were not manufactured until the 1860s, and “serial numbers were not broadly required for all firearms manufactured and imported in the United States until the passage of the Gun Control Act of 1968.”
Similarly, a New York federal judge struck down that state’s ban on gun possession within houses of worship, claiming there weren’t enough early American laws that similarly protected worshipers from gun violence. And a federal judge in Texas struck down that state’s law prohibiting gun sales to people under 21 — he essentially rewrote the law to allow 18-year-olds to buy guns — on the grounds that there weren’t enough early American laws prohibiting 18- to 20-year-olds from buying guns.
Yet, while lower court judges have relied on Bruen to sweep away all kinds of gun laws, it is unclear how the justices are likely to react as these cases work their way through the appeals process.
Though Justice Brett Kavanaugh joined the majority opinion in Bruen, he also wrote a separate concurring opinion emphasizing that he would still uphold many restrictions on gun use and possession. Among other things, Kavanaugh indicated that he would support “licensing requirements for carrying a handgun,” as well as “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” bans on “dangerous and unusual weapons,” and “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Kavanaugh’s Bruen concurrence was also joined by Chief Justice John Roberts.
Similarly, as noted above, Justice Barrett once claimed that laws prohibiting “dangerous people from possessing guns” may be allowed.
These opinions by Kavanaugh and Barrett should give hope to anyone praying that the Supreme Court will reverse the Fifth Circuit’s decision in Rahimi. Perhaps Roberts and Kavanaugh will conclude that a ban on gun possession by domestic abusers is analogous to bans on “the possession of firearms by felons and the mentally ill,” which both justices have signaled are consistent with US historical tradition. Or perhaps Barrett will conclude that people subject to restraining orders are sufficiently “dangerous” that the national legislature may prevent them from possessing a firearm.
But if this discussion of Bruen’s aftermath proves anything, it should be that the fate of American guns laws is likely to come down to individual judges’ and justices’ arbitrary conclusions about which modern laws are sufficiently similar to laws from two or three centuries ago to justify the modern law’s continued existence.
Is a place of worship a “sensitive place,” similar enough to a school or a government building to justify a restriction on guns? Is a high school senior with a gun sufficiently “dangerous” to justify requiring them to wait until they are old enough to buy beer before they can also buy an AR-15? There are no clear-cut answers to these questions, and the Court’s approach to them is likely to turn less on objective principles of law than on whether John, Brett, and Amy think that a particular gun regulation should be upheld.
Before Bruen, federal appeals courts united around a Second Amendment framework that could be fairly easily applied by any competent federal judge. “Severe burdens” on the right to bear arms, such as a law prohibiting gun possession in the home, were subject to “strict scrutiny,” an unforgiving-but-familiar test that most law students are taught in their first year of classes. Meanwhile, “less onerous” laws were subject to “intermediate scrutiny,” a more forgiving test that is also taught to law students in their introduction to constitutional law.
This familiar framework, which required judges to use tools that they already know how to use, led to much more predictable outcomes than the chaotic appeal to historical analogies demanded by Bruen.
In an ideal world, the Court would recognize that its decision in Bruen is a failure that should be overruled. It offers no meaningful guidance to lower court judges trying to decide which gun laws should be struck down. It endangers laws that no sensible person would oppose, such as the law at issue in Rahimi. And it requires judges to ask silly questions, like whether a ban on domestic abusers owning guns is sufficiently similar to a 1662 English law allowing the Crown to seize guns from people it determined to be “dangerous to the Peace of the Kingdom.”
Realistically, a decision overruling Bruen is unlikely. But, at the very least, the Court could try to use the Rahimi case to rework the Bruen framework so that it no longer produces results that are completely arbitrary.