Bernd W'stneck/picture-alliance/dpa/AP Images
A bullet hole is seen in Gnoien, Germany on July 13, 2023.
Early next week, the Supreme Court will have a chance to begin working itself out of the hole it dug last year when it overturned New York’s century-old gun law, discovered in the 27 words of the Second Amendment a previously unknown right to carry concealed handguns in public, and redefined the rules for adjudicating the nation’s gun laws.
The Court’s decision in New York Rifle and Pistol Association v. Bruen has created what has been variously described as “chaos” and “disarray” in the lower courts, as judges attempt to make sense of a ruling that told them, in determining a gun law’s constitutionality, they may no longer consider whether it serves a “governmental interest” or public good (such as reducing gun violence). Instead, they must look solely to the text of the Second Amendment and ascertain if the law is consistent with the nation’s “historical tradition of firearm regulation.”
Judges are having a hard time finding eighteenth- and nineteenth-century precedents, or “analogues,” and are confused about which history is actually relevant to their decision-making. Many are finding the reliance on history altogether unworkable, if not dangerous.
In Indiana, Robert Miller Jr., a district judge appointed by Ronald Reagan, dismissed the case of a man who failed to disclose that he was under felony indictment at the time he purchased a firearm—as required by the federal background check law—because he could find no historical precedent. Miller wrote that he hoped he misunderstood Bruen: “If not, most of the body of law Congress has developed to protect both public safety and the right to bear arms might well be unconstitutional.”
The nation’s gun control regime hasn’t collapsed quite yet, but it’s clearly facing challenges. In Bruen’s wake, gun rights advocates have filed hundreds of lawsuits, and longstanding restrictions have been struck down by multiple courts, among them laws requiring serial numbers on firearms and laws banning guns in places of worship, libraries, museums, bars, subways, domestic violence support centers, and summer camps.
The founders didn’t envision subways, buses, airports, football stadiums that can hold 100,000 fans and other sensitive places where various states and localities have banned guns. But Bruen has opened virtually every modern-day gun law to challenge and forced judges to issue rulings they themselves find absurd. As Judge Miller wrote about the Constitution’s drafters, “it insults both that legacy and their memory to assume they were so short-sighted as to forbid the people, through their elected representatives, from regulating guns in new ways.”
In the upcoming case of United States v. Zackey Rahimi, which will be argued on November 7, the Supreme Court will rule on the constitutionality of a 1994 federal law prohibiting individuals from owning firearms if they are “subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner” or the partner’s child. The broader constitutional issue is whether the government can deny a person his Second Amendment rights if he has not been convicted of a crime.
Rahimi was under a civil restraining order in Texas, which made it illegal for him to possess guns, after he allegedly beat up his girlfriend, threatened to kill her if she reported the incident, and fired a bullet at a witness to the assault. He was later convicted in a federal court of unlawful possession of a firearm while under that civil order.
The Fifth Circuit Court of Appeals upheld Rahimi’s conviction under the pre-Bruen rules, then reversed itself because it could find no analogous limitation from history. The law, the court said, was unconstitutional because it disarms individuals based on civil protective orders rather than criminal proceedings. “Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” the court ruled.
If the Supreme Court agrees, it will effectively prioritize the Second Amendment rights of abusers over the lives of those they may decide to murder, primarily women and children. With over 12 million victims of domestic abuse annually, the decision is quite literally a matter of life or death.
BRUEN MADE IT ESPECIALLY DIFFICULT to uphold modern gun regulations that attempt to address problems like domestic violence that have “persisted since the 18th century.” In such cases, Bruen says, “the lack of a distinctly similar historical regulation” is evidence that the law violates the Second Amendment. Put another way, since the founders tolerated wife-beating—a “husband’s legal prerogative to inflict marital chastisement”—today’s courts are powerless to do anything about it.
Most people would probably find it wise to take guns away from a violent individual like Rahimi, who was involved in five shootings in and around Arlington, Texas between December 2020 and January 2021. They might surmise that there is a public or “governmental interest” in disarming this sort of person.
In 2019, those people would have likely included Amy Coney Barrett, then a judge on the Federal Seventh Circuit, who authored a dissenting opinion in a criminal case eerily similar to Rahimi, arguing that the government had a “very strong” interest in “preventing armed mayhem” and “keeping guns out of the hands of those who are likely to misuse them.” Barrett explicitly referenced “those convicted of domestic violence misdemeanors.” And she argued that, “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”
But that was before Barrett was elevated to the Supreme Court and signed onto Bruen, which threw out any consideration of costs and benefits, common sense and the opinions of state legislatures.
Thomas and the court’s conservatives have saddled judges with the ill-defined “originalist” task of figuring out exactly what politicians in the late 1700s to mid-1800s thought the Second Amendment meant.
After Bruen, it’s all about history and traditions. But which history and traditions will Barrett and her fellow conservatives look to?
In a concurring opinion in Bruen, Barret wrote that the court’s “near-exclusive reliance” on history “goes much too far,” noting that not a single U.S. court of appeals had adopted “this rigid history-only approach,” but instead relied on balancing text and history against the government’s interest in limiting an individual’s access to guns. This, of course, suggests that Barrett was comfortable with the old formula for deciding gun cases, which she helped scuttle in the very same opinion. How she now hopes to square that pre-Bruen approach with the new “rigid history-only” formula without reversing Bruen remains to be seen.
In the Rahimi case, the government, like Barrett in Bruen, argued that there was an established tradition of disarming dangerous individuals in both pre-colonial and colonial history. But the notoriously conservative Fifth Circuit wasn’t buying any of the government’s history pertaining to dangerous individuals, and vacated Rahimi’s conviction.
So, to Barrett’s point: Exactly how rigid is Bruen’s “rigid history-only approach?”
Turns out, it’s pretty rigid. Clarence Thomas, Bruen’s lead author, instructs judges that “all history is not created equal,” and that “post-Civil War discussions” of the Second Amendment provide little insight into “its original meaning.” Thomas tells judges to focus primarily on the years between ratification of the Second Amendment in 1791 and its incorporation by the states in 1868.
Narrowing the historic timeline and insisting that judges focus on “original meanings” has made it difficult for judges to find a historic foundation for gun laws enacted well after 1868 that were designed to address problems the founders failed to foresee.
In a 2016 law review article, Coney Barrett warned that sticking to the Constitution’s original meaning in some cases would “wreak havoc” on our democracy, and would arguably require “the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.”
Meanwhile, Thomas and the court’s conservatives have saddled judges with the ill-defined “originalist” task of figuring out exactly what politicians in the late 1700s to mid-1800s thought the Second Amendment meant. These same judges seem perfectly happy to abandon their originalism when it suits their purposes—as they did repeatedly in deciding Bruen itself.
For example, Bruen acknowledges that handguns may have been considered “dangerous and unusual during the colonial period” and that “historical tradition” would have supported banning them. Yet Bruen created a right to carry them not because of any original meaning, historic foundation or analogue, but because, “they are indisputably in ‘common use’ for self-defense today,” and “they are today, in the 21st century, ‘the quintessential self-defense weapon.’” (Machine guns, by the way, are not in “common use” today because the Congress effectively banned them in 1934 when they were commonly used in gangland killings. That ban will undoubtedly be challenged sometime in the future.)
Similarly, Bruen cites a modern rationale, rather than any “historical basis,” to justify carrying guns in public: “[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”
Bruen says the right to carry is protected under the Constitution not because the founders or any other court before 2022 said it was a right, but precisely because the founders failed to say it wasn’t a right. Meanwhile, the opposite logic seems to hold when it comes to abortion, where the same Court says it’s not a protected right because the founders failed to address it.
Bruen acknowledges that the “historical record” provides few places where guns were banned. Yet it magically allows gun bans to stand in schools, government buildings, polling places and other “sensitive” locations because, the court says, it “can assume it settled that these locations were ‘sensitive places.’” Likewise, it accepts “longstanding prohibitions” on gun possession by felons and the mentally ill, apparently because, well, they’re longstanding, seem to make sense, and the justices don’t want to mess with them.
It is these ahistorical, cherry-picked restrictions that give defenders of the current law barring gun ownership by those under civil restraining orders some hope that the Court may find it difficult to stomach allowing Zackey Rahimi and like-minded predators to own firearms. In his concurring opinion in Bruen, Justice Brett Kavanaugh and Chief Justice John Roberts wrote that the Court’s list of these “presumptively lawful regulatory measures… does not purport to be exhaustive,” suggesting that they may be willing to expand the list and countenance further limits on the Second Amendment. If one or both of them, or possibly Barrett, join the three liberals on the court, they could overturn the Fifth Circuit and uphold the current law.
Beyond the narrow question of disarming civilly restrained domestic abusers, lower-court judges would like to see the Supreme Court use the Rahimi case to explain how its selectively applied “history-only” approach is supposed to work in the twenty-first century. But it’s not clear that such an explanation is feasible or that, short of eating crow and reversing Bruen, there is any logical way out of the mess the court has created. The danger is that the court will approach this problem piecemeal as Second Amendment absolutists challenge one gun law after another, while the chaos and confusion in the lower courts continues.
