And with similar laws on the books in 48 states and territories, the court — even this conservative court — isn’t about to declare that the dead hand of colonial-era history prevents the 21st-century government from temporarily disarming those credibly accused of domestic violence.
The real question in United States v. Rahimi, one that was front and center in Tuesday’s arguments, is to what extent the justices will use the case to mitigate the damage and clean up the chaos unleashed in the lower courts by their 2022 decision in New York State Rifle and Pistol Association v. Bruen.
The justices could rule narrowly in upholding the law, and there were indications Tuesday that at least some are inclined to go that route. But they would be wise to follow the counsel of U.S. Solicitor General Elizabeth B. Prelogar, who offered the court a way to stem the flood of gun cases headed in its direction.
Here’s why that’s sorely needed: In Bruen, the court, ruling 6-3, upended the way lower courts had weighed the constitutionality of gun restrictions since 2008, when the justices declared that the Second Amendment protects an individual’s right to keep and bear arms. Previously, the courts had settled on a balancing test, considering whether the limitation at issue was justified by public safety concerns.
The majority in Bruen said that was wrong. Instead, it said in an opinion by Justice Clarence Thomas that judges must look to history and tradition to consider whether the restriction “is consistent with the Nation’s historical tradition of firearm regulation.” Judges were instructed to scour statutes and treatises from the era of cannonballs and muskets to find a “well-established and representative historical analogue” for modern-day gun rules.
As Justice Stephen G. Breyer predicted in his dissent, mayhem ensued. A friend-of-the-court brief by scholars of the Second Amendment lays out the damage: Courts have reached conflicting views about the constitutionality of prohibiting felons and drug users from possessing firearms; barring so-called ghost guns; restricting high-capacity magazines; and banning assault weapons. A federal judge in New York said the state couldn’t bar guns at summer camps — because there wasn’t any colonial-era parallel.
And the 5th Circuit in Rahimi struck down the gun ban for subjects of domestic violence restraining orders — notwithstanding language from the court making clear that the protections of the Second Amendment apply only to “law-abiding, responsible citizens.” Rahimi was “hardly a model citizen,” the court said, but the government had failed to come up with a convincing “historical analogue” for disarming domestic abusers. Therefore, the law was unconstitutional.
Questioning Prelogar, Justice Elena Kagan noted that “there seems to be a fair bit of division and a fair bit of confusion about what Bruen means. … And I’m wondering if you think that there’s any useful guidance, in addition to resolving this case … we can give to lower courts.”
Prelogar had three suggestions. First, the court should make clear that judges shouldn’t only search for regulations — they should look to “a wide variety of historical sources” for parallels.
Second, judges have been “parsing the historical evidence” too parsimoniously. “Court after court has looked at the government’s examples and picked them apart to say: ‘Well, taking them one by one, there’s a minute difference between how this regulation operated in 1791 or the ensuing decades and how … provisions operate today,’” Prelogar said. “And I think that comes very close to requiring us to have a dead ringer when Bruen itself said that’s not necessary.”
Third, courts are putting too much weight “on the absence of regulation in a circumstance where there’s no reason to think that was due to constitutional concerns.” So, in Rahimi, for example, there wasn’t any colonial-era regulation barring domestic abusers from having guns. “But,” she said, “there is nothing … to suggest that anyone thought you couldn’t disarm domestic abusers or couldn’t disarm dangerous people.”
The Biden administration supported a different result in Bruen. It backed the New York state licensing rules struck down in that case, which required those seeking concealed carry permits to demonstrate “proper cause,” as a reasonable measure to protect public safety. The mess the case has created is not of the Biden team’s making.
Still, Prelogar wasn’t urging the justices to junk Bruen — not that they are inclined to do that — merely to make clear that it doesn’t compel crazy outcomes like arming domestic abusers. She put the blame on lower courts for a “profound misreading” of Bruen, rather than on the ruling itself; this was canny but way too charitable. The case opened the door to precisely the kind of mischief and confusion that has ensued.
Be that as it may, the justices would be wise to follow Prelogar’s road map. It won’t convince all the conservatives. But she has offered a smart way for the justices to ameliorate some of the damage they have inflicted without having to confess how badly they erred.
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