On June 21, the Supreme Court decided United States v. Rahimi, overturning the Fifth Circuit’s application of the newly minted test for evaluating the constitutionality of firearm regulations under the Second Amendment. In N.Y. State Rifle & Pistol Ass’n v. Bruen— decided only two years earlier — the Court turned Second Amendment precedent on its head by establishing a new two-part test. The test asked: (1) whether the regulated conduct falls within the scope of the Second Amendment; and (2) if so, whether that regulation is consistent with the historical tradition of firearm regulation in the United States. Applying this test, the Fifth Circuit held that 18 U.S.C. § 922(g)(8) — a federal statute criminalizing firearm possession by individuals subject to domestic violence protective orders — was unconstitutional because it does not comply with American traditions of firearm regulation. Put succinctly, the Fifth Circuit found that since early Congresses did not specifically disarm domestic abusers, neither could modern Congresses. Nevertheless, in an 8–1 decision by Chief Justice Roberts, the Supreme Court reversed the Fifth Circuit and upheld § 922(g)(8). The Court re-emphasized that under the second step of Bruen, the Government needed to show only that the challenged regulation had “a well-established and representative historical analogue, not a historical twin.” Justice Sotomayor wrote a concurring opinion joined by Justice Kagan. Justices Gorsuch, Kavanaugh, Barrett, and Jackson also filed separate concurring opinions, while Justice Thomas — the author of Bruen — penned the lone dissent.
Rahimi is emblematic of the struggle that lower courts have faced in applying Bruen. Despite its short history, the Bruen test has already been the subject of heated debate among academics and jurists. And while Rahimi is a step towards improving the test, it is no panacea. The Bruen test is not a mere application of public meaning originalism, but rather originalism-by-analogy, a term coined by Professors Joseph Blocher and Eric Ruben. Public meaning originalism performs an inquiry into the natural construction of words and phrases by relying on evidence of the text’s historical meaning. By comparison, the Bruen test requires a court to consider the intent and rationale of both the historical and modern restriction. However, beyond a mere caveat that the Court did not intend to impose a “regulatory straight jacket” on the Government by demanding an historical twin, the Bruen Court provided little guidance on the appropriate level of generality for the historical analogue analysis. Rahimi presented this question squarely, asking the Court to decide whether it was sufficient under Bruen that the Framers broadly disarmed dangerous persons, or whether the Government needed to present a historical analogue specifically disarming domestic abusers.
By deeming historical surety and “going armed” laws sufficient analogues, the Court opted to conduct its analysis of § 922(g)(8) at a higher level of generality. This holding is in line with the suggestions proffered by Professors Blocher and Ruben, who stated, “the most obvious doctrinal solution is to adjust the level of generality at which a court conducts the inquiry.” Because the Bruen Court “seemed to take [a] narrowing approach when framing the relevant regulatory tradition, even as it defined the right at a high level of abstraction,” Rahimi presented the Court with the opportunity to clarify the level of generality for lower courts to follow by articulating an overarching theory of the appropriate level of generality in Second Amendment jurisprudence. Logically, if the Court wants to construe the level of generality in defining what constitutes a firearm broadly, then it should also broadly construe the level of generality when it comes to considering the constitutionality of regulations regarding such arms. And the Court’s decision in Rahimi heeds this wisdom, stating that its “precedents were not meant to suggest a law trapped in amber.” Since the Second Amendment’s protections are not confined to only those arms which existed at the time of the Founding, the Second Amendment must necessarily permit regulations that are analogous, but not identical, to those enacted by the Founding Generation. “To hold[] otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.” As such, the Court held that Founding–era surety laws and “going armed laws,” which disarmed those deemed dangerous to public safety, constituted sufficient historical analogues. The Fifth Circuit erred in demanding any further level of specificity.
Justices Sotomayor and Jackson also emphasized the importance of articulating a theory on the appropriate level of generality for lower courts. Indeed, utilizing a high and consistent level of generality across the analysis not only safeguards § 922(g)(8) but also allows the Bruen test to generate some doctrinal coherence. In particular, the new test accounts for prohibitions on other groups of people, including those who suffer from mental illness, that were not acknowledged or understood at the time of the Founding. Such concerns dovetail with District of Columbia v. Heller, which revolutionized Second Amendment jurisprudence by articulating an individual right to bear arms. The Heller Court set forth the trajectory that would lead to Bruen almost fifteen years later.In Heller, the Court explicitly emphasized that nothing in its decision should bring into question longstanding prohibitions on disarming the mentally ill — a point that the Court reiterated in Bruen. Individuals with mental illness pose a risk to themselves and others when they have access to firearms. To ensure our legislatures can effectively address such modern issues, courts must consistently apply a broad approach in their Bruen analysis. Thus, the Court’s articulation of a theory of generality in the application of the Bruen test should be applauded as a step towards improving the test’s administrability.
Nevertheless, the Court’s clarification may still be a Band-Aid on a festering wound inflicted by the Court’s myopic focus on history. Though a higher level of generality permits more flexible analysis, such a standard leaves the door open for significant variation across lower courts. Indeed, the inquiry conducted by the Rahimi Court ultimately involved extrapolating broad governing principles from two separate historical regulations to justify a single modern regulation — a methodological move that led Justice Thomas to critique Rahimi as a piecemeal approach. This concern is justified. However, far from indicating that Rahimi is wrongly decided, the piecemeal approach seems to indicate that there is a dearth of guiding principles constraining the Bruen historical analysis more generally.
This invites the opportunity to reflect on what work originalism and history are doing in the Bruen analysis — a point expounded by Justice Jackson at oral argument and in her concurrence. For instance, Justice Jackson asked Solicitor General Prelogar whether, under the Bruen test, the Government is permitted to disarm individuals who were not deemed dangerous at the Founding — including, as relevant to Rahimi, domestic abusers. Having joined the Court after Bruen was decided, Justice Jackson made her concerns explicit. She stated, “What’s the point of going to the Founding era? … I thought it was doing some work. But, if we’re still applying modern sensibilities, I don’t really understand the historical framing.” And in her concurrence, she highlighted her frustration with Bruen’s requirement that courts “consider history to the exclusion of all else.”
Such focus on history has been a hallmark of the Roberts Court — a Court obsessed with the constitutional theory of originalism. As a theory, originalism was born out of a desire for judicial restraint. In the words of Justice Scalia, one of the foremost early originalists, “the main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law.” Indeed, the Bruen Court reminded us of the underlying anxiety about judicial discretion that shaped the Court’s reasoning and methodology: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Yet, despite these concerns—and the originalist authors of the opinion — the Rahimi Court’s articulation of how to determine what constitutes a historical analogue does not seem to provide much meaningful restraint.
Rather, under Rahimi, the abstract level of generality coupled with the ability to pull principles from a variety of historical regulations has the potential to generate varied outcomes. Indeed, Justice Barrett’s concurrence acknowledged the danger of such a high level of generality, stating “[t]o 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.” But, nonetheless, Justice Barrett put her concerns to the side, finding that the Court’s holding arrives at the appropriate level of generality — at least for now. As she concluded, “[h]arder level-of-generality problems can await another day.”
The concurring opinions bring to light the differing views on the efficacy of historical analysis in determining the constitutionality of a regulation and the extent to which Bruen’s historical approach is a viable methodology. To be clear, no justice — not even Justices Sotomayor and Jackson — doubts that history has its place in Second Amendment analysis. Even the former bedrock Second Amendment test, prior to being displaced by Bruen, started with a historical inquiry and only moved to means-end scrutiny if the regulation did not fall within the Nation’s historical tradition. Yet, the question is, what is the proper place for this inquiry?
In Justice Scalia’s mind, tethering legal analysis to history is a compromise. He did not deny the limits of judicial historiography but rather viewed it as a tool to moderate the power of a judge’s own predilections. For Justice Scalia, “this is a world in which nothing is flawless” and that “a thing worth doing is worth doing badly.” Indeed, fellow originalist Justices Gorsuch and Kavanaugh seem to express this very same sentiment in their concurrences. Yet, if the desired end for the Bruen test is judicial restraint, it is unclear whether originalism-by-analogy effectively advances this goal. Does the test live up to Justice Kavanaugh’s command that “[h]istory, not policy, is the proper guide”? The Court’s clarification of the level of generality to apply in the Bruen test should be praised as a step toward enhancing its effectiveness. However, the seven opinions in Rahimi illustrate the difficulty and necessity of delineating the proper bounds of historical analysis in Second Amendment jurisprudence. Considering that originalism-by-analogy may not generate the judicial restraint the Bruen Court desired, and that grounds originalism more generally, the Court should take seriously the concerns raised by Justices Sotomayor, Kagan, and Jackson. Despite its common-sense alterations to the Bruen approach, Rahimi is hardly the cure-all for the methodology’s problems.
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