Rahimi and Abstraction
Today, the US Supreme Court handed down its opinion in Rahimi v. US, the much anticipated follow up to the court’s consequential and highly controversial Second Amendment decision New York State Rifle & Pistol Assn, Inc. v. Bruen. In Bruen, Justice Thomas, writing for the majority, held that to be deemed constitutional, a modern gun law restricting Second Amendment rights must be “relevantly similar” to a historical analogue. In doing so, the court rejected the use of interest-balancing by courts that would ask whether an infringement on gun rights could be justified by the government’s interest in mitigating the harmful effects of gun violence.
The law at issue in Rahimi was 18 USC 922(g)(8), which prohibits an individual subject to a court order finding him “a credible threat to the physical safety of [an] intimate partner” from possessing a firearm. Chief Justice Roberts, on behalf of an eight member majority, upheld the federal statute, holding that it was relevantly similar to gun laws in effect at the time of the ratification of the Second Amendment. Justices Sotomayor (joined by Justice Kagan), Gorsuch, Kavanaugh, Barrett, and Jackson, all filed concurrences. Justice Thomas, the author of Bruen, dissented.
In upholding the statute, the Rahimi majority criticized lower courts for “misunderstanding the methodology” of Bruen. That case did not stand for the principle that the law is “trapped in amber.” Rather, Bruen requires courts to determine whether the “challenged regulation is consistent with the principles that underpin our regulatory tradition.” Consequently, the Second Amendment “permits more than just those regulations identical to ones that could be found in 1791.” Justice Thomas, however, doubled down on the strict application of Bruen, arguing that modern laws may not address social problems related to guns by any means “materially different” from those used in the eighteenth century.
Although both the majority and the dissent purported to apply the Bruen test, they came to opposite conclusions about the constitutionality of 18 USC 922(g)(8). As I predicted, the dispute between Justice Thomas and the rest of the court stemmed from the different levels of abstraction they applied to historical gun laws when determining whether they were relevantly similar to the modern federal law.
The Chief Justice wrote that the “[w]hy and how” of gun restrictions should be central inquiry. Examining the historical record, he concluded that the Second Amendment “permits the disarmament of individuals who pose a credible threat to the physical safety of others.” He relied primarily on two historical examples from the founding era: laws relating to sureties and public affrays.
At the founding, wives could require that their abusive husbands put up a surety, basically a bond guaranteed by other community members, for good behavior. If the husband stepped out of line, the sureties would have to bring the husband to court to answer for his conduct or forfeit their cash. Sureties could also be required of those who carried a “dangerous and offensive weapon” in public, guaranteeing against misuse of the weapon.
Meanwhile, among the public affrays prohibited at common law was the brandishing of weapons in public “to the Terror of the People.” It was a crime, according to Blackstone, to go around armed “with dangerous or unusual weapons [to] terrify [] the good people of the land.” Doing so could result in forfeiture of the arms and imprisonment.
Although 18 USC 922(g)(8) is not a historical dead ringer for these eighteenth century gun laws, the majority found them relevantly similar in terms of purpose and method (“why and how”) because they mitigated threats of future violence by particular individuals through temporary measures like bonds and disarmament. A domestic violence restraining order similarly prohibits possession of fire arms under section 922(g)(8) for a period of time while the order is in effect.
Justice Thomas, however, took the majority to task for mixing and matching different founding era laws. “The question before us is whether a single historical law has a comparable burden and justification as § 922(g)(8),” he wrote, “not whether several laws can be cobbled together to qualify.” For him, surety laws proved that section 922(g)(8) is not like founding era gun restrictions because they did not involve disarmament. Surety laws “did not alter an individual’s right to keep and bear arms” because “[e]ven if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money.” Thus, while they are similar in terms of the justification (to deal with potentially violent individuals), surety laws were not relevant similar in terms of their burden.
And, according to Justice Thomas, public affray laws were not similar in either justification or burden. Affrays were concerned only with conduct threatening to the general public, and were legally distinct from assaults that involved private interpersonal violence, the subject of domestic violence restraining orders relied on by section 922(g)(8). In addition, while the commission of a public affray could result in disarmament, that penalty required a criminal conviction based on proof beyond a reasonable doubt. Restraining orders are not subject to proof beyond a reasonable doubt. Affray laws were thus not similar in terms of why or how.
Justice Barrett, in her concurrence, honed in on this “generality problem.” “Must the government,” she asked, “produce a founding-era relative of the challenged regulation-if not a twin, a cousin? Or do founding-era regulations yield concrete principles that mark the borders of the right?” So far, she noted, courts had interpreted Bruen to require a close historical twin. As a member of the majority, she rejected that approach: “[h]istorical regulations reveal a principle, not a mold.”
But it’s hard to believe that lower courts are “misunderstanding” Bruen, given that the author of that opinion, Justice Thomas, apparently agrees with them. At the very least, the disagreement and confusion over the application of Bruen undercuts the idea that originalism is more objective and neutral than other methods of constitutional interpretation.1
Instead, as I expected, the court is able to manipulate the Bruen test by adjusting the level of abstraction applied to construct the historical analogy. In this way, the court can achieve its desired policy outcome,2 but wrap its decision in a cloak of ostensible neutrality by purporting to undertake an objective inquiry into the nation’s “history and tradition.”
That is, if the court’s history and tradition approach can even really be called “originalism.” More on that later.
Don’t get me wrong, I very much personally agree with that policy and I’m relieved by the result in this case. Nor do I agree with Justice Thomas that section 922(g)(8) is unconstitutional. My point here is about whether the court’s test is really less subjective than so-called living constitutionalism.