Bruen and Abstraction

In U.S. v. Rahimi, the petitioner challenges a federal statute prohibiting possession of firearms by persons subject to domestic-violence restraining orders. Rahimi argues that this law violates the Second Amendment because no analogous prohibition existed at the time the amendment was ratified.

The petitioner’s argument is based on the Supreme Court’s opinion in New York State Rifle & Pistol Association, Inc. v. Bruen, wherein the court held that laws regulating guns must be consistent with the nation’s historical tradition of firearms regulation. What that means in practice is that a modern gun law must be analogous to a law on the books in the period during and immediately after the ratification of the Second Amendment.

It seems likely that the court will deny Rahimi’s challenge, mainly because it would be totally cuckoo bananas to allow a violently unhinged nut job like Rahimi to possess a firearm. But it’s hard to understand why, as a matter of constitutional reasoning, Rahimi is incorrect in his application of Bruen.

It’s basically undisputed that gun regulations at the founding did not prohibit individuals who committed domestic violence from possessing firearms. Since no analogous law existed, 18 U.S.C. § 922(g)(8) is unconstitutional. Case closed.

Not so fast. Justice Thomas told us in his majority opinion in Bruen that a founding era gun regulation need not be a dead ringer for the modern law to satisfy the history and tradition test. Rather, the historical regulation must be “relevantly similar,” meaning that the burden imposed and the government’s justification are analogous.

So, for example, prohibitions in effect at the founding on possessing guns in certain sensitive places, such as courthouses, would justify similar prohibitions today even if the particular sensitive places may be different (like post offices).¹

And it is argued that it was in fact common practice at the founding to confiscate firearms from those society deemed dangerous, such as unrepentant loyalists. So while the particular classes of individuals deemed dangerous may have changed, the idea of confiscating of guns from dangerous individuals is the same. Following this line of argument, the court may deny Rahimi’s argument without disturbing Bruen.

But this reasoning is giving me déjà vu. Looking at the Glucksburg test for identifying unenumerated rights under the doctrine of substantive due process, I concluded that the analysis did not establish an objective method of identifying unenumerated rights because the outcome is determined at the outset by how narrowly or broadly one chooses to define the right.

What we have here is a similar problem of defining the level of abstraction. If you don’t like a gun regulation, you can define the analogy narrowly and decide the law is unconstitutional. There were no laws at the founding confiscating guns from persons subject to domestic violence restraining orders, therefore such a law is unconstitutional.

Alternatively, if you like the regulation, you can define the analogy broadly. Confiscating guns from dangerous individuals is the throughline that justifies this modern prohibition on domestic abusers, notwithstanding differences in the particular application.

While I hope the court does adopt the broad analogy to overrule the Fifth Circuit’s decision striking down 18 U.S.C. § 922(g)(8), doing so would demonstrate how the court can manipulate abstraction to achieve its preferred policy outcomes under the cover of “neutral” historical inquiry. It can demand strict compliance with historical practice, narrowly defined, to deny a right it doesn’t favor. Or it can apply a loose analytical framework based on broad principles to save a favored right.

1. Said the lower courts: hold my beer.