Adam Liptak, NYT (“Supreme Court Upholds Law Disarming Domestic Abusers“):
The Supreme Court ruled on Friday that the government can take guns away from people subject to restraining orders for domestic violence, limiting the sweep of a blockbuster decision in 2022 that had vastly expanded Second Amendment rights.
Indeed, Friday’s decision amounted to a retreat from what had been an unbroken series of major rulings favoring gun rights that started in 2008, when the court first recognized an individual constitutional right to keep firearms in the home for self-defense.
In the 2022 decision, the court established a right to carry guns outside the home and announced a new test to assess all sorts of gun control laws, one that looked to historical practices to judge their constitutionality. That new test has sown confusion in the lower courts, with some judges striking down laws that had been on the books for decades.
The case decided Friday, United States v. Rahimi, asked whether a Texas man could be prosecuted under federal law making it a crime for people subject to domestic violence restraining orders to possess guns. Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said that the answer was yes and that Second Amendment rights have limits.
“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,” the chief justice wrote. “Since the founding, our nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.”
Justice Clarence Thomas, the author of the majority opinion in the 2022 decision, New York State Rifle & Pistol Association v. Bruen, was the only dissenter.
[…]
The Bruen decision said gun laws are constitutional only if courts can find a historical analogue.
But that inquiry, Chief Justice Roberts wrote on Friday, does not require locating an exact match and can instead focus on broad principles. “The appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” he wrote.
In dissent, Justice Thomas vehemently disagreed with the majority’s approach.
“The court and government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence,” he wrote.
Justice Thomas wrote that the government has a better way to disarm dangerous people — by prosecuting them for criminal violence. What the government cannot do, he said, is to “strip the Second Amendment right of anyone subject to a protective order — even if he has never been accused or convicted of a crime.”
The court’s three liberal members, who had dissented in the Bruen case, wrote that they continued to think that the ruling was a grave error. But, in a pair of concurring opinions, they said they were happy to embrace the new limits.
Justice Sonia Sotomayor, joined by Justice Elena Kagan, welcomed what she called a clarification of the Bruen standard.
“The court’s interpretation,” she wrote, “permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”
She added that Justice Thomas’s analysis would produce a perverse result. “Under the dissent’s approach,” she wrote, “the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary.”
Justice Ketanji Brown Jackson, in her own concurrence, said the Bruen decision had left lower courts in a state of deep confusion. The chief justice’s majority opinion, she wrote, was “a tacit admission that lower courts are struggling.”
She added: “In my view, the blame may lie with us, not with them.”
Jackson is right. While I support the substance of the Bruen ruling, it was so poorly written as to practically invite absurd outcomes in the lower courts—particularly in the 5th Circuit.
Thomas’ dissent reminds me of his late friend Antonin Scalia’s frequent quip—often comparing himself to Thomas—“I’m a textualist. I’m an originalist. I’m not a nut.” While Scalia was an ideologue, he gave some consideration to practical consequences. Thomas, not so much.
While I would agree with him that the way to get guns away from violent people is to put them in jail, it’s absurd to think the Framers intended to let people who have made specific and credible threats of violence run around with guns until they’re convicted of a crime. And, surely, a judicial hearing that results in a restraining order is sufficient due process for the temporary suspension of one’s gun rights.
WaPo’s Ruth Marcus (“Justices course correct on gun control. Don’t count on it to continue.“) isn’t satisfied.
It was clear from the moment the justices accepted the case — part of the spate of rogue rulings from the out-of-control U.S. Court of Appeals for the Fifth Circuit that it is reviewing, and fixing, this term — that Zackey Rahimi would lose.
As Chief Justice John G. Roberts Jr. outlined in his opinion for the court, Rahimi is a drug dealer who embarked on a weeks-long shooting spree — my favorite was firing in the air when his friend’s credit card was declined at a Whataburger — all while subject to a restraining order that barred him from possessing weapons. Rahimi had dragged his girlfriend to his car, fired shots as she fled and threatened to shoot her if she told police. Police found an arsenal in his home.
These are what lawyers call bad facts. Rahimi’s constitutional argument was that the high court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen invalidated the possession law because it lacked a colonial-era analogues. The Fifth Circuit agreed.
Friday’s ruling made clear, as Roberts put it, that Second Amendment law is not “trapped in amber,” requiring a precedent precisely on point. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” Roberts wrote. “As applied to the facts of this case, [the domestic abuse law] fits comfortably within this tradition.”
So, what’s the problem?
Sotomayor, in a concurrence joined by Kagan, zeroed in on the inherent limitations of the historical approach. “Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, it is no surprise that that generation did not have an equivalent” to the law disarming domestic abusers, she noted.
Still, she said, despite Bruen’s “myopic focus on history and tradition,” the majority’s approach in Rahimi’s case at least “permits a historical inquiry calibrated to reveal something useful and transferable to the present day.”
Perhaps more interesting was the array of approaches endorsed by the conservative justices — as well as the welcome fact that Justice Samuel A. Alito Jr., who didn’t write separately, signed onto the Roberts opinion rather than join Thomas in dissent.
Justice Neil M. Gorsuch emphasized that the historical inquiry shouldn’t be watered down to too great a level of generality, lest courts “risk gaming away an individual right the people expressly preserved for themselves,” signaling, perhaps, that for him Rahimi’s case was a one-off.
Justice Amy Coney Barrett, who has been musing openly this term about how to apply the historical test, emphasized that “imposing a test that demands overly specific analogues has serious problems,” and said the absence of a restriction wasn’t necessarily dispositive. At the same time, Barrett expressed doubt about looking to historical practices long after ratification of the text at issue.
Even under Bruen, as Sotomayor and Kagan said, United States v. Rahimi was “an easy case.” Harder ones are not far off: Are felon-in-possession laws that prohibit convicted felons from having guns constitutional, even if the felony involved was nonviolent? What about laws barring drug users from having weapons, as in the case of Hunter Biden? What about those who are charged or convicted of misdemeanor domestic abuse, not felonies?
Friday was a better day for those who believe in rational gun regulation — the first time the court had upheld a gun law since it declared in 2008 that the Constitution protects an individual right to bear arms. But this is an interim word from a conservative-dominated, history-obsessed court, not the last one.
Roberts’ opinion doesn’t fully clarify the boundaries but, as Justice Kavanaugh rightly notes, “Second Amendment jurisprudence is in its early innings,” given that the Court didn’t issue its maximalist interpretation of gun rights until 2008.
Whether the Framers intended a broad, personal right to own firearms is debatable and, indeed, has been debated for quite a long time. If we’re operating on the post-2008 assumption that this is what the 2nd Amendment guarantees, though, I don’t know what other than history we’d use to understand the limits of the right. That’s at least partially how we’ve interpreted the protections of the 1st, 4th, 5th, and 8th Amendments.
Rather obviously, 1789 (when the Bill of Rights were authored) was a very long time ago and the law needs to adjust for societal and technological developments. But the basic principles here haven’t changed much: people have a right to own guns but the community has the right to place reasonable limitations on those rights. Taking guns away from drug dealers who threaten to kill their girlfriends is a pretty easy call.
Slate‘s Mark Joseph Stern (“The Supreme Court Walks Back Clarence Thomas’ Guns Extremism“) is more generous:
The difference between Rahimi and Bruen is perfectly captured by Roberts’ majority opinion and the lone dissent written by Bruen’s own author, Thomas. The chief justice asserted, “The government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” He breezily walked through a smattering of history allowing for the seizure of arms to preserve “public order.” For proof, Roberts cited surety laws, legislation that required an individual “suspected of future misbehavior” to post a bond, which he would forfeit if he engaged in misconduct. Domestic abusers could, in theory, be subject to the surety system, as could individuals who misused firearms—and that was good enough for Roberts. To him, this evidence established a historical practice of “preventing individuals who threaten physical harm to others from misusing firearms.” And disarming abusers “fits comfortably within this tradition.”
To Thomas, by contrast, surety laws “are worlds—not degrees—apart” from the law in question, because they were civil (not criminal) measures that did not actually disarm people but merely threatened them with a fine. These laws “did not alter an individual’s right to keep and bear arms,” Thomas protested, and they therefore failed to establish a relevant “history and tradition.” Indeed, “the government does not identify even a single regulation with an analogous burden and justification,” he complained in dissent. In 1791 a man like Zackey Rahimi could be disarmed only after a conviction for a violent crime. And so, Thomas wrote, that must remain the rule today.
Bruen was a 6–3 decision. Yet every justice who joined Thomas’ opinion in Bruen in 2022 signed on to Roberts’ walk back of Bruen on Friday. What happened? Aside from Justice Samuel Alito, every remaining member of the court expressed their views by writing or joining separate concurrences in Rahimi. Justice Brett Kavanaugh tried to defend his beloved “history and tradition” test, as opposed to “a balancing test that churns out the judge’s own policy beliefs,” while creating more room for “precedent” (or “the accumulated wisdom of jurists”). Justice Amy Coney Barrett wrote that Bruen “demands a wider lens” than the 5th Circuit deployed, explaining that “historical regulations reveal a principle, not a mold,” and do not forever lock us into “late-18th-century policy choices.” Justice Neil Gorsuch tried to split the difference, marshaling a defense of Bruen while subtly reworking it to limit sweeping legal attacks on gun regulations.
Justice Sonia Sotomayor, joined by Justice Elena Kagan, celebrated the majority’s focus on “principles” instead of perfect analogs. “History has a role to play in Second Amendment analysis,” she wrote, “but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.” Justice Ketanji Brown Jackson, who joined the court soon after Bruen came down, warned that Rahimi will not end the “increasingly erratic and unprincipled body of law” that Bruen inspired. “The blame” for the lower courts’ struggles “may lie with us,” she noted, “not with them.” All three liberals sound ready and willing to overturn Bruen altogether if they get the chance—but will, for now, settle for Rahimi’s compromise.
The difference between Roberts and Thomas is that one is not a nut.
