Will Rahimi Save The Unworkable Bruen?

While the holding fit nicely into a sentence, the Supreme Court’s Bruen decision wreaked havoc on lower courts struggling to figure out how that sentence was applied.

[T]he court articulated a “text, history and tradition” test for evaluating gun restrictions in future federal cases. Under this test, gun control measures were constitutional only if the government could demonstrate those restrictions were “consistent with the nation’s historical tradition of firearm regulation.” That was the most significant element of the Bruen case.

Granted, there was little clarity under Heller and McDonald, Justice Scalia having tossed in the errant paragraph that undermined any coherent reading of the rest of the opinion. But the “historical tradition” test of Bruen took matters from bad to worse. Neither the government nor judges were colonial era historians. Just because there was no law enacted restricting firearms back then doesn’t mean there wouldn’t have been had there been a problem in need of resolution. And the laws that did exist were directed at circumstances, and weapons, then in existence. Things change.

David French, who strongly supported Heller, saw the problem somewhat differently.

Not only was the history messy, but judicial reliance on founding-era legislation suffers from an additional conceptual flaw: State legislatures are hardly stuffed with constitutional scholars. Then and now, our state legislatures are prone to enact wildly unconstitutional legislation.

The assumption in Bruen is that the same folks who ratified the Second Amendment knew what it meant, and so any laws they passed were, by definition, consistent with the Second Amendment’s meaning. David isn’t buying.

Our courts exist in part to check legislatures when they go astray. The courts do not rely on legislatures to establish constitutional doctrine. In our divided system of government, legislators are not tasked with interpreting constitutional law. Yes, they should take the Constitution into account when they draft laws, but the laws they draft aren’t precedent. They do not and should not bind the courts.

This is a “which is to be master” problem, whether the laws back then dictate the parameters of the right to keep and bear arms or were legislatures just as inclined to test, and exceed, the limits of the Constitution back then as they are now? While Justice Thomas, author of Bruen and lone dissenter in Rahimi, persisted in his slavish reliance on the laws at the time of ratification as controlling, David characterizes the break of the rest of the Court as an effort to make sense of Bruen by going beyond the precise limits of laws as existed in colonial times.

On Friday, eight justices of the Supreme Court not only ruled against Rahimi. They clarified their approach to text, history and tradition in a way that freed lower courts from the straitjacket of finding precise historical analogies. Roberts declared that “some courts have misunderstood the methodology of our recent Second Amendment cases.” The court’s precedents “were not meant to suggest a law trapped in amber.” Or, as Justice Amy Coney Barrett wrote in her concurrence, “Historical regulations reveal a principle, not a mold.”

Cool rhetoric, for sure, evoking images of Jurassic Park which did not turn out well. But cool phrasing does not necessarily provide any greater clarity than before. So if not “trapped in amber,” then what? If a “principle, not a mold,” what is the principle?

As a practical matter, this means, as Roberts wrote, that “when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’”

Putting aside the irony that the guy who wrote Bruen is now apparently clueless about what he meant, the Court has now clarified that the regulation need not be “precise.” It’s unclear whether any colonial era regs were precisely the same as laws today, but close enough for Bruen and Scalia’s errant paragraph. The problem is what is sufficient to make today’s laws sufficiently analogous to suffice?

Applying this more flexible framework, the court reached a holding that will echo beyond Rahimi’s case: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

This, of course, is merely an outcome, not a rationale. How does this differ from holding abortion to be a substantive due process right, or gay marriage, or a plethora of other salutary rules from back when the “living Constitution” was the preferred mode of analysis?

If this ruling held, every person subject to a domestic violence restraining order could have immediate access to firearms, assuming no other legal restrictions applied.

Even worse, if the Fifth Circuit’s ruling had stood, lawmakers seeking to justify virtually any gun regulation would have to be prepared to find colonial or early-American analogies for their proposed restriction or watch it fail in court. This would have meant that lawmakers facing modern gun violence problems involving modern weapons would have been constrained into essentially colonial and founding-era legal solutions.

All true, but these are policy arguments rather than a principled application of a constitutional right. Rights are frequently in conflict with policies we might prefer, but that’s the nature of constitutional rights. You don’t honor them only when you like the outcome, but when they test our principles as well.

While it’s understandable that David, given his preference for Red Flag laws, wants to view Rahimi as salvaging some portion of reason from the misbegotten Bruen decision, and to a very small degree it does clarify that colonial regs need only be analogous and not precisely on point, Rahimi provides no better rule to be applied by lower courts than Bruen. If anything, it’s introduces yet another vagary into the mix that will engender a new round of arguments without any principled resolution. The problem is Bruen, and Rahimi doesn’t fix the problem.

6 thoughts on “Will Rahimi Save The Unworkable Bruen?

  1. hal

    While I agree with your conclusion, as expressed in the final sentence, the premise that Rahimi is a good decision is not just flawed, it’s flat out wrong.

    Rahimi is pretty much the poster child for the sort of person who should not be allowed access to firearms, but that anyone should have a fundamental right (arguably the most fundamental right, the right to defend oneself) denied without due process is unconscionable.

  2. tk

    Second Amendment jurisprudence has been a mess sine the earliest days. Heller and McDonald were steps in the right direction. But while Bruen’s overall holding was correct, the “historic test” created a new mess. And rather than helping to resolve it, Rahimi just added to that mess by muddying the waters. Sure, Bruen is the law of the land, but we can simply disregard it when we please. Which, I suppose, is typical.

    Of course, it doesn’t help that Rahimi is the poster child for someone who should not have guns.

  3. Anonymous Coward

    As a gun rights advocate I see Bruen as simple. Gun control laws are infringements. It’s only “a mess” if you are desperately scrambling to protect pistol rosters, ridiculously intrusive gun permitting laws and declaring 90% of a municipality a “sensitive place”.

  4. L. Phillips

    As a retired cop and licensed dealer in NFA weapons I am conflicted.

    “It’s an absolute right. Quit screwing with it!” has a certain charm, but anyone who has worked the streets of even a mid-sized city knows that there is a substantial group of citizens out there who shouldn’t be allowed near sharp tools much less firearms of any time or type

    I’m glad my job was intake. You lawyers can sort ‘em out.

  5. DaveL

    While Rahimi might allow more breadth in fitting existing or novel laws to historical analogs, I don’t see it as providing anything like positive guidance to lower courts. What I suspect it will do it give cover to courts hostile to 2nd Amendment rights, to return to their default interpretation that, while the 2nd Amendment might theoretically bar some restriction or other on guns at some level of government, they have never yet seen or imagined anything that would fit the bill.


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