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| Michael McCarthy |
In Bruen, the court upended the two-step test for scrutinizing gun control laws, which would traditionally begin with a historical analysis of whether a law falls outside of the Second Amendment as originally understood, and then move to a determination of whether the law affects a core Second Amendment right — and if so, whether it survived strict scrutiny. If it fell outside of the core, it would be subject to intermediate scrutiny.
After observing that the proper test requires the government to affirmatively show the regulation is consistent with the Second Amendment's text and historical tradition, thereby eliminating any means-based test, a 6-3 court struck down a century-old New York law requiring individuals to be licensed to publicly carry a firearm.
Many court observers believed the case and the court's shift to pure originalism more or less signified the end of most modern gun control legislation.
Yet, in Rahimi, an 8-1 court upheld a facial constitutional challenge to Title 18 of the U.S. Code, Section 922(g)(8), which criminalizes possession of a firearm by those subject to a domestic violence restraining order after being found to be a credible threat to the safety of others.
Unsurprisingly, no such law existed when the Bill of Rights was ratified in 1791.
Writing for the majority, Chief Justice John Roberts observed that Bruen expressly did not require the law to have a "historical twin" in order to survive a Second Amendment challenge.[2] The court found sufficient analogs in surety and affray laws, both of which had a strong historical tradition and existed at the time of ratification.
The chief justice and other concurring justices took pains to emphasize that Second Amendment law is not "trapped in amber."[3] Rather, the court must "consider[] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition."[4] Post-Bruen, consistency must be found in both the "why and how" a challenged law burdens the right to bear arms.[5]
Unfortunately, the justices' different approaches to searching for those principles, as evidenced in Rahimi, will provide little guidance to lower courts applying the new test.
The facts and narrow holding of Rahimi are worth mentioning to show that it will be mostly unhelpful moving forward on other challenges.
In the underlying case, Zackey Rahimi's girlfriend, C.M., obtained a temporary restraining order against him after he assaulted her, fired a gun as she fled, and later threatened to shoot her if she reported the incident. C.M. also reported other incidents of physical abuse.
In issuing the restraining order, the Texas state court found Rahimi to be a "credible threat" to the woman and their child, and prohibited nearly all contact with the woman during a two-year period in which the respondent's gun license would be suspended.
Rahimi violated the restraining order by appearing at the woman's home and contacting her via social media. When police arrested him for threatening a different woman with a firearm, he was found in possession of a pistol, rifle, ammunition and a copy of the restraining order prohibiting possession of these very items. Police also suspected his involvement in at least five other shootings.
To many observers, it appeared likely after oral arguments last fall that the court would reverse the U.S. Court of Appeals for the Fifth Circuit, which had held that Section 922(g)(8) could not stand after Bruen.
When Justice Roberts probed a historical tradition of disarming dangerous individuals, Rahimi's counsel resisted and said he "would want to know what 'dangerous person' means." Justice Roberts quickly responded, "Well, it means someone who's shooting, you know, at people. That's a good start."[6]
It seemed clear from this line of questioning that, on the limited issue of whether an individual may be banned from carrying a weapon after a court found him to be a credible threat to the safety of others, the court would find sufficient consistency with the founding era.
The 8-1 result in Rahimi does little to obscure a lack of agreement by the justices on applying the test itself. Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh all wrote concurring opinions extolling the virtues of originalism and their views on its application to the Second Amendment, although none was joined by any other justice.
Justices Sonia Sotomayor and Ketanji Brown Jackson wrote separately to comment on the destabilizing effect of a purely originalist view, with Justice Sotomayor, in particular, commenting on the government's interest and the real-world, present-day impact of domestic violence.
Justice Clarence Thomas, who authored the majority opinion in Bruen, was the lone justice in dissent.
Perhaps no disagreement in the justices' analysis brought the various perspectives of originalism to light better than Justice Roberts' reference to the Statute of Northampton of 1328 as an early example of an English law that barred people from misusing weapons to menace others.
In walking through this history and connecting it to surety laws, which required individuals to post a bond if there were grounds they would commit a future physical harm, and affray laws, which disarmed those who terrorized the public with a weapon, the majority opinion held that there was a sufficient, long-standing tradition to permit the government to disarm those who pose a credible threat to others.
However, in a rebuke to looking back at tradition that predated the U.S. Constitution by as much as 400 years, Justice Kavanaugh and Justice Thomas, who dismissed the Statute of Northampton in Bruen, separately observed that the Second Amendment's right to bear arms arose in direct response to the very history of arms prohibition in England.
Justice Thomas' dissent further observed that history provided no support to demonstrate how the modern statute was consistent with the burden placed on the individual — the "how" portion of Bruen's examination.
Surety laws merely required the individual to forfeit their bond for a violation, and affray laws imposed a burden to not carry "dangerous and unusual" weapons in public for the purposes of menacing. On the other hand, the federal statute at issue, Section 922(g)(8), was punishable by a felony conviction and permanent loss of the right to possess a firearm.
According to Justice Thomas, the majority had moved away from Bruen by not looking for a single historical law that had a comparable burden and justification, but "cobbl[ing several laws] together" to find sufficient consistency.[7]
The real reason Rahimi will prove to be unhelpful in articulating a clear test is that the court did not resolve one of the biggest open issues in analyzing the Second Amendment, which focuses not on the proper scope of preratification history, but rather what post-ratification history can be examined to analyze historical tradition.
To many, the Reconstruction era, when the 14th Amendment was ratified, would provide ample basis from which to draw an understanding of individual rights. While Justice Kavanaugh wrote extensively about the need to rely on post-ratification tradition and cited numerous cases in one of the longer string cites in recent memory, the justices avoided the dispute entirely, except to say it would not be resolved in this case.
This alone prevents a complete articulation of Bruen's proper application.
Rahimi's greatest takeaway is likely that the court faces a challenging landscape ahead, which it will have to wade through largely on a case-by-case basis.
Courts will routinely run into issues on how broadly or narrowly to distill a principle from its review of history in what Justice Barrett calls the "level of generality problem."[8] In her words, "a court must be careful not to read a principle at such a high level of generality that it waters down the right."[9]
The court appeared to concede that it anticipates many, many more petitions on the heels of Bruen and Rahimi. Given this backdrop, it will likely soon take on bans on high-capacity magazines, and there is no shortage of cases, including Duncan v. Bonta, which was recently argued before an en-banc session of the U.S. Court of Appeals for the Ninth Circuit.
In this "chaos," as Justice Jackson described the post-Bruen world in one footnote, litigators and judges will need to become "amateur historians" who must engage in the "mad scramble for historical records."[10] A good start, it is not.
Michael J. McCarthy is an associate at Kendall Brill & Kelly LLP. He previously served as an assistant district attorney in the Manhattan District Attorney's Office.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
[1] New York State Rifle & Pistol Assn. Inc. v. Bruen
, 597 U.S. 1 (2022).[2] United States v. Rahimi
, 602 U. S. ____, slip op. at 4 (2024).[3] Id. at 7.
[4] Id. (citing Bruen, 597 U.S. at 26–31).
[5] Id. (citing Bruen, 597 U.S. at 29).
[6] Tr. of Oral Arg. 79, United States v. Rahimi, 602 U. S. ____ (2024).
[7] Id. at 26 (Thomas, J., dissenting).
[8] Id. at 3 (Barrett, J., concurring).
[9] Id. at 4.
[10] Id. at 5 n.2, 6 n.3 (Jackson, J., concurring)