The Supreme Court decision in United States v. Rahimi represents a slightly less strict application of originalism to Second Amendment issues than appeared in the Court’s 2022 decision in New York State Rifle & Pistol Assn., Inc. v. Bruen. Nonetheless, the Rahimi decision further exposes the problems of applying an originalist test to governmental regulation of a constitutional right, particularly to the Second Amendment where applying 1790s firearm regulation policies to the present day is particularly problematic.
Before getting to Rahimi, I think it is important to discuss the faulty foundation of the Court’s recent Second Amendment jurisprudence. The Supreme Court’s embrace of the Second Amendment as a protection for individual owners of firearms is one of the “greatest” accomplishments of conservative legal theorists in recent times.
The text of Second Amendment explicitly discusses a right to bear arms to maintain a well-regulated militia:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Consistent with the text, the Supreme Court’s 1938 decision in United States v Miller makes pretty clear that the right to bear arms is conditioned on the arms being used as part of a state militia:
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Even beyond the quote above, if you read the Miller opinion, it goes on for several pages talking about the relationship of the Second Amendment to use of arms in a state militia.
Beginning in 1980s, certain conservatives undertook the effort to read the “state militia” component out of the Second Amendment in Miller. And that effort paid off in 2009, in District of Columbia v. Heller, when a majority of the Supreme Court effectively reread the militia requirement out of Second Amendment and Miller. I do not say this lightly but Justice Scalia’s opinion in Heller is disingenuous in discussing the text of the Second Amendment and Heller. The Heller decision and the opinion the next year in McDonald v. Chicago, which applied Heller to firearm regulations of states,* rewrote the purpose of the Second Amendment. The purpose no longer was the purpose that actually appeared in the text – the right to bear arms to maintain a well regulated state militia. Now, according to the Court, individual self-defense was the “central component” of the right to bear arms.
The damage of Heller and McDonald to firearm regulation was somewhat mitigated by how the lower courts applied those decisions. The consensus of the lower courts was to apply a means/end test where the court balanced the government’s justification for a regulation against the degree it infringed on the right to bear arms. These types of tests are common in constitutional analysis and have been applied to rights under the First Amendment and Fourteenth Amendment for several decades.
Bruen changed that dramatically. In Bruen, the Court held unconstitutional a New York law that required individuals to demonstrate “proper cause” to obtain an unrestricted license to “have and carry” a concealed “pistol and revolver.” The Court held that the New York law violated the Second Amendment right to bear arms. In reaching this determination, the Court applied originalist theory – it only considered the text of the Second Amendment and the practice of firearm regulation prior to, and at the time of, ratification of the Second Amendment and the Fourteenth Amendment. If the firearm regulation is something regulated in the 1790s or analogous to firearm regulations in the 1790s, then it would be okay. Otherwise, it would be unconstitutional. In reaching this determination, the Court specifically rejected the use of a means/end test.
The Second Amendment is particularly ill-equipped to apply an originalist test. There is no comparison between the rifles and muskets of the 18th Century and the weapons of mass destruction that exist today.
Not surprisingly, courts have struggled in applying Bruen. How do you properly analogize 18th Century firearm regulation to that of the present day? One of the more outrageous lower court decisions was the Fifth Circuit decision in United States v. Rahimi. A conservative panel, applying Bruen, held that a federal law [18 U.S.C. § 922 (g)(8)] which barred persons under a domestic violence restraining order from possessing a firearm, violated the Second Amendment on its face, meaning that the law was unconstitutional in all of its applications. Two of the historical analogues proposed by the government and rejected by the court were “surety” laws and “going armed” laws.
The Supreme Court decided to take the case. Thankfully, it reversed the lower court decision by an 8-1 vote, with only Justice Thomas dissenting. Notably, every justice other than Alito and Kagan wrote opinions. Rahimi serves as an opportunity to clarify Bruen. I think it also serves as a defense – both to tell state and local governments and the American public decision that Bruen is not so bad and to defend originalism as whole.
Chief Justice Roberts authored the majority opinion. The first paragraph of Section II of the opinion concisely summarizes the ruling:
When a restraining order contains a finding that an individual 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 individuals 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.
How does he get there? Acknowledging that some lower courts have taken Bruen too far, he states that “some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” He goes to say that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” Quoting and citing Bruen he states that
the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.
He then goes on to analyze a series of firearm regulations that “included provisions barring people from misusing weapons to harm or menace others.” Beginning with regulations from the 1200s and 1300s up through the late 18th Century, he credits as historical analogues many of the same laws rejected by the Fifth Circuit, including “surety laws” and “going armed” laws.
Some words about the opinions from the conservative justices. Justice Gorsuch’s opinion is largely a defense of originalism that goes farther than the Chief Justice. Whereas the Chief Justice says that the law is not trapped in amber, Justice Gorsuch says it is:
As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber,” see ante, at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide.
Justice Gorsuch acknowledges “that adherence to the Constitution’s original meaning may be an imperfect guide” but he says that is better than “substituting our will” for that of 18th Century Americans.
I disagree with Justice Gorsuch on two related fronts. First, it is one thing to say that the words of the Constitution should be followed. It is another to say that we are stuck with the 18th Century definitions of those words. Second, in my view, if the choice is between the will of the present day as opposed to that of the 18th Century, I will take our will today. But I do not think that choice must be made. We can apply the words of the Constitution but use contemporary definitions of those words. We do not have to import the world of the 18th Century to decide 21st Century cases.
Of the conservative justices, Justice Kavanaugh adopts the least radical approach to constitutional interpretation. In his concurring opinion, he explains “how courts apply pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text.” In that analysis, he makes a valuable point that “some pre-ratification history can be probative of what the Constitution does not mean. The Framers drafted and approved many provisions of the Constitution precisely to depart from rather than adhere to certain pre-ratification laws, practices, or understandings.” One example he gives is of the Equal Protection Clause: “The Equal Protection Clause provides another example. Ratified in 1868, that Clause sought to reject the Nation’s history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution.” In addition, Justice Kavanaugh lays out the significant degree to which the Court has relied on post-ratification history in constitutional interpretation – we are not stuck viewing society as it existed in the 1790s.
That being said, Justice Kavanaugh rejects the use of what he calls “policy” or “balancing test” approaches to judicial interpretation, which as discussed above, are tests used under the First and Fourteenth Amendments that balance the need for the law as opposed its burden on the individual right. In his view, these tests are too subjective because they are not grounded in history. Like Justice Gorsuch, Justice Kavanaugh acknowledges that the “historical approach is not perfect.” But quoting McDonald, he contends that “it is the best means available in an imperfect world.”
Justice Barrett’s short concurring opinion focuses on the practical more than the doctrinal. She acknowledges the struggle lower courts have had in applying 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 founding-era gun regulations yield concrete principles that mark the borders of the right?
She goes on to say that the latter applies: “’Analogical reasoning’ under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold.” And then she recognizes the challenge to determining the proper level of generality in defining the principle:
To be sure, a court must be careful not to read a principle at such a high level of generality that it waters down the right. 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.
She closes by finding stating that Rahimi is a relatively straightforward case but that “[h]arder level-of-generality problems can await another day.”
Rahimi is certainly an improvement on Bruen. It appears to permit judges to use historical analogues to draw broader principles that can be applied to analyzing current firearm regulations. Perhaps these will lead to courts rejecting more far-fetched Second Amendment challenges will be unsuccessful. But making courts apply this originalist test is ill-conceived and messy. Judges will have to sift through centuries-old firearm regulations and determine what is analogous to the present day and what is not. Why should firearm regulations that are nearly one thousand years old bear more relevance than those of the last fifty years? The whole exercise would be laughable if there were not lives at stake.
* The Bill of Rights contained in the first Ten Amendments to the Constitution creates restrictions on the federal government; the Supreme Court has subsequently held that the individual rights contained in the Bill of Rights also apply to the states through the Fourteenth Amendment