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There is good news in Friday’s Supreme Court decision in United States v. Rahimi: The Court concluded that at least some people subject to domestic violence restraining orders do not have a categorical right to own a firearm, and upheld a law preventing them from doing so. While Rahimi produced a maze of concurring and dissenting opinions, eight justices ultimately agreed that a man who literally threatened to shoot the mother of his child should not be armed.
But there’s also bad news: Chief Justice John Roberts’s majority opinion is utterly incoherent.
It does nothing to clear up the mass confusion created by the Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which held that all gun laws are unconstitutional unless the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That decision threw gun regulation throughout the United States into chaos and prompted an unusually long list of complaints from sitting judges.
In Rahimi, the far-right US Court of Appeals for the Fifth Circuit struck down a federal law banning people subject to domestic violence restraining orders from owning guns. Yet, while the Fifth Circuit has a history of taking liberties with the law to achieve conservative results, its decision in the Rahimi case was correctly decided under Bruen.
As Justice Clarence Thomas persuasively argues in dissent, Bruen compelled the Fifth Circuit to rule that domestic abusers do, indeed, have a Second Amendment right to own a gun. Friday’s decision in Rahimi essentially carves out an exception to Bruen that is just large enough to allow Zackey Rahimi, the cartoonishly violent individual at the center of this case, to be disarmed. But Roberts’s opinion does little else. And it provides absolutely no meaningful guidance to lower court judges who are struggling to apply the vague “historical tradition” test announced in Bruen.
Indeed, in a concurring opinion, Justice Ketanji Brown Jackson quotes a dozen different lower court opinions begging the Supreme Court to tell them how, exactly, Bruen is supposed to work. As one of those opinions warns the justices, “courts, operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often dispositive, difficult questions.”
Jackson urges her Court to abandon Bruen entirely, and suggests that the justices should instead reinstate a two-step framework that “every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment” used in the period following a landmark 2008 guns decision, at least before the Dunning-Kruger justices decided that they knew better in the Bruen case.
But, alas, that will not happen — most likely for as long as this Court’s 6-3 Republican supermajority gets to decide how the law works. Instead, the Court handed down an incomprehensible decision that also does little more than hold that one of the most dangerous people in the United States cannot own a gun.
While Roberts’s opinion upholds part of the federal law disarming domestic abusers, it doesn’t even declare the entire law constitutional, leaving open the possibility that future courts could allow at least some very dangerous individuals to own guns.
Roberts’s majority opinion is pure gobbledygook
The Bruen decision placed an enormously high burden on any government lawyer trying to convince a court that any gun law is constitutional. To show that a gun law is consistent with “this Nation’s historical tradition of firearm regulation,” the government had to point to “analogous regulations” that existed when the Constitution was framed. And the government carried a particularly high burden when it hoped to enforce a law that addresses “a general societal problem that has persisted since the 18th century.”
Bruen, in other words, was a bold experiment in “originalism,” the idea that the only valid way to interpret the Constitution is to ask how it was understood when it was crafted.
Under an honest application of Bruen’s test, domestic abusers absolutely have a right to own a gun. Certainly, violence between romantic partners existed in the 18th century, but there were hardly any laws targeting this societal problem, and no laws that disarmed domestic abusers. Until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other,” all 50 states did not make it a crime for married partners to beat their spouses.
Nevertheless, every justice but Thomas appeared to realize that allowing Rahimi to own a gun would be untenable. Roberts’s majority opinion opens with a startling litany of Rahimi’s history of shooting guns in public when he gets angry. Among other things, Rahimi threatened to shoot two different women. He fired into a man’s home. And he fired his gun in the air at a burger restaurant after the restaurant declined his friend’s credit card.
In total, Rahimi appears to have committed six different shooting crimes — that is, crimes where he actually discharged his firearm — in addition to the threats to shoot other people.
Yet, rather than admit that the Bruen framework must be fundamentally flawed if it led a federal appeals court to conclude that this uniquely dangerous criminal has a constitutional right to own a gun, Roberts instead tries to shift the blame, claiming that “some courts have misunderstood the methodology of our recent Second Amendment cases.” He then drops two incomprehensible paragraphs seeking to clarify how Bruen is supposed to work.
When evaluating if a gun law is constitutional, Roberts writes, “a court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit.” He adds that “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.”
Yet Roberts also caveats this statement, insisting that “even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding.”
So judges must ask if a modern-day law is “relevantly similar” to a founding-era gun law, whatever the hell that means. The modern law will probably be constitutional if it addresses a problem that the founders also tried to address, but not if the modern law “does so to an extent beyond what was done at the founding.”
It’s hard not to pity the poor lower court judges who will have to apply this word salad in future cases.
In any event, Roberts claims that a modern law prohibiting Zackey Rahimi from owning a gun is constitutional because something called “surety” laws existed two or three centuries ago. These laws required “individuals suspected of future misbehavior to post a bond” — that is, to pay a sum of money that would be forfeited if they engaged in such misbehavior. As Roberts writes, these laws “could be invoked to prevent all forms of violence, including spousal abuse.”
So, apparently, these surety laws are “relevantly similar” enough to a modern law prohibiting domestic abusers from owning guns that Zackey Rahimi can be disarmed.
That’s actually a pretty significant retreat from Bruen. As Thomas writes in his Rahimi dissent, Bruen doesn’t just create a very high presumption that any modern gun law addressing a social problem that existed in the 1700s is unconstitutional, it also states that “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”
While surety laws may have allowed some legal consequences to be imposed on early American domestic abusers, Thomas writes, they “imposed a materially different burden.” Surety laws “did not alter an individual’s right to keep and bear arms,” they merely required some individuals to pay a sum of money.
So the Court has taken some steps to weaken Bruen. While both Bruen and Rahimi hold that the government must show that any modern gun law is sufficiently similar to a centuries-old gun law in order to be upheld, Rahimi does suggest that the two laws need not be too precisely similar. As Roberts writes, Bruen was “not meant to suggest a law trapped in amber.”
But Rahimi’s test is no less incoherent than Bruen’s, and it does nothing to allay the many complaints from lower court judges that Jackson enumerates in her concurrence. Rahimi simply states in vague terms that more gun laws should be upheld than were upheld in the first two years after Bruen.
It’s unclear if Rahimi even allows all domestic abusers to be disarmed
Notably, Roberts’s majority opinion also places a great deal of weight on the fact that Rahimi brought what is known as a “facial” challenge to the federal law disarming domestic abusers.
Facial challenges allege that a particular law is unconstitutional in all of its applications, meaning that a court must effectively strike it from the books. They stand in contrast to weaker “as-applied” challenges, which allege that a law is unconstitutional only when enforced against a particular party. As Roberts explains, facial challenges are notoriously difficult to win — the party challenging the law must “establish that no set of circumstances exists under which the Act would be valid.”
But Rahimi’s case also involved the most extreme facts imaginable — most criminal defendants, even defendants charged with serious gun crimes, aren’t implicated in six different shootings. And so Roberts concludes that the federal law disarming domestic abusers “is constitutional as applied to the facts of Rahimi’s own case.” Rahimi’s facial challenge fails.
But the Rahimi decision doesn’t even uphold the entire federal law preventing domestic abusers from owning guns. That law contains two separate provisions laying out when someone subject to a restraining order must be disarmed. The Court upholds one of these provisions, but defers the question of whether the other one is constitutional until another day.
The federal disarmament law at issue in this case applies in two different sets of circumstances. One provision prohibits anyone from having a gun if a court finds that they pose “a credible threat to the physical safety” of certain other people. The second provision applies if someone is subject to a restraining order that “prohibits the use, attempted use, or threatened use of physical force.”
Roberts’s opinion upholds the first of these provisions, but it leaves open for another day whether someone can be disarmed after a court orders them not to use physical force against another person. And, because the legal framework announced by the Rahimi majority is so vague, it is anyone’s guess how lower courts will approach this still-open legal question.
Rahimi, in other words, is a monument to this Court’s arrogance, and its inability to admit its own mistakes. Bruen is an unworkable disaster that has caused mass confusion within the lower courts. It should be overruled in its entirety.
Instead, all the Court did on Friday is carve out an exception to Bruen for some — and not even all — people who commit domestic violence.
