The Supreme Court today reversed the Fifth Circuit and upheld a federal statute prohibiting persons under domestic violence restraining orders from possessing firearms against a Second Amendment challenge. The case, United States v. Rahimi, had quickly become a tentpole example of the disaster show unleashed by the landmark Bruen decision, which tossed out the "heightened scrutiny" review uniformly used by lower courts to adjudicate Second Amendment challenges in favor of a "historical analogue" test that immediately proved almost entirely unworkable. The majority in Rahimi appears to have significantly retreated from Bruen, underscoring that Bruen does not demand a "clone" law but merely something "analogous" that existed at the time of the framing (here, the relevant analogy was "surety" laws, which required "individuals suspected of future misbehavior to post a bond").
The Court's decision was 8-1, with only Justice Thomas (the author of Bruen) dissenting. This isn't too surprising -- most legal observers thought after watching oral argument that the Fifth Circuit's opinion was destined to be reversed. The stance that the "cartoonishly violent" domestic abuser at the center of Rahimi had a Second Amendment right to remain armed and dangerous was predictably something that most of the Justices wanted to race away from as fast as possible.
But the real fun, for me, came in reading the concurring opinions. Two of them, authored by the liberal Justices Kagan and Jackson, are dedicated to making the obvious point that Bruen has been an absolute trainwreck. The conservative concurrences, by contrast, are a spectacle of chest-thumping paeons to originalism as the one true standard of constitutional jurisprudence, distinguished most essentially by the fact that it is not results-oriented and prevents judges from tailoring the outcome of cases to meet their ideological preferences.
Us legal progressives have to enjoy the small things these days, and if ever there have been clearer examples of protesting-too-much in a judicial opinion, I'm not sure I've seen it. It could not be clearer that the outcome in Rahimi dictated the reasoning. It could not be clearer that the contemporary social policy consequences are basically the entirety of what drives the otherwise arbitrary inquiry into how "analogous" is analogous enough (and, for what it's worth, such policy arguments also took center stage in the conservative arguments marshalled to strike down the law -- it's policy all the way down). The ferocity through which Justices Kavanaugh and Gorsuch in particular extol originalism's virtues in their opinions reek of desperation. Bruen was a classic instance of this Court taking a huge theoretical swing in service of an abstract political ideology and leaving the mess for later. Unfortunately for them, the mess piled up quicker than they anticipated, and now they're left in the humiliating position of having to act like the ensuing disaster wasn't one of their own making.
I will give some credit to Justice Barrett for grappling with a few of the critical questions here. She correctly notes that the historical test does not mean that contemporary legislatures are limited to "an updated model of a historical counterpart" in crafting gun legislation, because "historical regulations reveal a principle, not a mold." Within the general class of domains where there is historical evidence states were permitted to implement restrictions on the right to bear arms, the legislature should get significant deference in determining how it wants to instantiate those restrictions -- the flipside of Bruen's general admonition that policy judgments have no role to play in Second Amendment adjudication.
The other essential point Barrett makes is critiquing the assumption "that founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority." We can group legislative action -- at the founding or at any other time -- into three broad buckets: (1) laws the legislature passed and which they believed were constitutional (2) laws they did not pass because they thought they'd be unconstitutional, and (3) laws they did not pass, but not because they believed they were unconstitutional (one hopes the fourth category -- laws that were passed even though the legislature believed they were unconstitutional -- is close to a null set). The third category is an utterly mundane one: the legislature doesn't enact legislation for a whole host of reasons, the vast majority of which have nothing to do with any constitutional worries -- anything from "we think this is bad policy" to "we didn't consider this at all".
Unless we think that founding-era Americans enacted every single possible gun law that they thought was constitutionally-permissible -- legislating to the utmost limits of their constitutional authority -- there will be entries in both the second and third categories. But to modern eyes, these two buckets will be largely observationally equivalent -- the lack of a historical precedent could mean that laws of this sort were thought to be unconstitutional, or they could mean they weren't passed for the myriad range of other reasons laws don't get passed. Bruen basically papers over this problem by pretending the last bucket doesn't exist, but in doing so it curb-stomps its own historical test. As for me, I don't have a good answer regarding how to disaggregate the two buckets, but doing so is essential to actually applying the historical test Bruen purports to impose. I'll give one cheer to Justice Barrett for at least recognizing the problem, but I suspect that this is yet another reason why Bruen's nebulous and vexing character is going to be intractable and will remain how it's begun: an incoherent mess of law office history cloaking bog-standard ideological policy judgments.
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