Supreme Court Justice Clarence ThomasEric Lee/CNP/Zuma
In 2022, in a decision penned by Justice Clarence Thomas, the Supreme Court announced a new approach to regulating firearms. Henceforth, the court declared in Bruen, gun laws would only pass Second Amendment muster if they are “consistent with the Nation’s historical tradition of firearm regulation.”
Within a year, the Supreme Court was asked to confront the effect of their backward-looking decision: Could someone subject to a domestic violence restraining order have firearms? The question pitted the right of abusers to possess guns against the right of their victims not to be murdered. Would the justices double-down on their history-only approach, or would it find a way to keep guns away from violent abusers?
This decision hinges on ancient laws most people have never heard of.
On Friday, all the justices—except Thomas—decided that the government could take guns away from people whom a court deems a credible threat. The decision in United States v. Rahimi attempted to make Bruen workable in our modern world: one with far deadlier weapons than in 1791, and far more respect for women. But as the decision in Rahimi, its concurrences, and its lone dissent demonstrate, a clear and sensible approach to evaluating gun laws is a long way off.
In 2019, Texan Zackey Rahimi assaulted his girlfriend and fired his gun at a witness. He was put under a domestic violence restraining order, which he violated by possessing a firearm—an infraction under a 1994 federal laws—which he fired at people on multiple occasions. In his defense, Rahimi argued that the restraining order’s gun ban violated his 2nd Amendment right to bear arms.
The 5th Circuit Court of Appeals agreed: there was no 18th century law analogous enough to the statute barring Rahimi from possessing a gun, and therefore under Bruen, that statute must be unconstitutional. Perhaps this is because domestic violence wasn’t considered a serious problem in the 1790s, when women were excluded from voting, let alone crafting legislation. But returning the law to what was contemplated long ago by a small number of men is not a quirk of Bruen—it is the point. Indeed, the day after it decided Bruen, the same justices handed down Dobbs, ruling that the states’ interest in protecting life entirely swallowed any interest a woman might have in ending a pregnancy. The throughline is the lack of rights for women—not the state’s interest in protecting life.
Rahimi’s case quickly rose to the Supreme Court, where the justices had to decide if it was going to allow people found to be a credible threat to their intimate partners or children to possess firearms. Eight of the justices, including 5 who had been in the Bruen majority, balked. Thomas held firm.
In his majority opinion in Rahimi, Chief Justice John Roberts walked back the most extreme consequences of Bruen. Looking for a scapegoat, he blamed the 5th Circuit for how it had applied Bruen in this case. “Some courts have misunderstood the methodology of our recent Second Amendment cases,” Roberts wrote. “These precedents were not meant to suggest a law trapped in amber… the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” But the 5th Circuit arguably read the case correctly. Remember, Thomas wrote Bruen—and he reached the same conclusion as the 5th Circuit.
“Canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task.”
Their squabble underscores a more important point: Whether Thomas and the 5th Circuit or the other eight justices correctly applied Bruen is unknowable, because that decision called on the courts to evaluate gun laws with a subjective historical analysis, not a workable legal test. In Bruen, Thomas instructed courts to consider history, but cautioned that “not all history is created equal.” He advised that “analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” Helpful!
In a concurrence in Rahimi, Justice Ketanji Brown Jackson laid into Bruen for sowing chaos. The contradictory analyses coming out of the lower courts “say there is little method to Bruen’s madness,” she wrote, adding that after Bruen, “confusion plagu[es] the lower courts.” This was bound to happen, she explained, because “canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task.”
Inadvertently, Thomas’ own, lone dissent in Rahimi makes this same point. By taking the same historical analogues and coming to the opposite conclusion of his colleagues, he tacitly acknowledges how difficult it is to apply Bruen. And he demonstrates just how radical the most limiting version of Bruen would be.
In his dissent, Thomas lays out his own historical case for allowing Rahimi to keep his guns. Whereas his colleagues find enough historical analogues to convince them that there is a long-standing tradition of disarming dangerous individuals, Thomas says the analogues fail his subjective test. “Although surety laws shared a common justification with” the statute at issue, they “imposed a materially different burden,” he writes. “Affray laws are wide of the mark” for carving out “interpersonal violence in the home.” (Yes, this decision hinges on ancient laws most people have never heard of, because that’s how Bruen works.) As in Bruen, Thomas’ dissent is a poor roadmap to lower courts because its only guidance is its own detailed historical analysis. It is one thing to apply precedent, but quite another to assess a range of historical evidence and then decide whether it is good enough for Clarence Thomas.
Because the courts remain shackled to a historical test, the majority’s opinion is unlikely to stem the chaos. While Thomas’ ultra-narrow version of historical analysis lost the day, it’s not entirely clear what will ultimately replace it. Roberts tried to make Bruen more reasonable by urging courts to decide if a law is “relevantly similar” to “laws that our tradition is understood to permit, apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Sound easy? Every other justice except Alito either wrote separately or joined a concurrence, signaling that there are competing views about how to analyze the Second Amendment; Roberts’ 8-1 majority is big, but may prove shaky.
Justice Neil Gorsuch, though joining Roberts, concurred in what read like a love letter to Thomas’ methodology. “Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.” Awww.
Justice Brett Kavanaugh proposed going all-in on history tests and ditching the methods of constitutional interpretation that have governed the court’s caselaw for the last 70 years. Justice Amy Coney Barrett said that the majority had found the right “level of generality” in its search for a satisfying historical analogy but acknowledged that “harder level-of-generality problems can await another day.” All together, the GOP-appointed justices pointedly affirmed a historical approach to Second Amendment jurisprudence, holding fast to Bruen even while disagreeing with the analysis of its author.
Despite Friday’s majority decision not to completely chain modern law to the morality of 1791, it’s worth emphasizing that the court simply applied Bruen—it did not overturn it. Courts are still bound to consider history, rather than the state’s interest in protecting its citizens. The legality of other gun laws remains unclear. But at least the Rahimis will remain disarmed.
