Guns

Stephen Halbrook | 6.26.2024 11:25 PM

A good faith disagreement exists between the majority in United States v. Rahimi and Justice Thomas in dissent on whether the founding-era laws on affrays and sureties are valid historical analogues for the federal gun ban on persons who are subject to domestic violence restraining orders (DVROs). Justice Thomas makes a persuasive case that they do not suffice, while the Chief Justice, writing for the majority, contends that the requirement that the underlying court order includes "a finding that such person represents a credible threat to the physical safety of such intimate partner or child" is amply parallel.

But Rahimi is sufficiently consistent with NY State Rifle & Pistol Ass'n v. Bruen that three Justices could not contain their rejection of that opinion. They concurred because Rahimi's conviction was upheld, not because they agreed with any of the reasoning.

Justice Sotomayor, joined by Justice Kagan, began by asserting her continued belief "that Bruen was wrongly decided." She then held her nose and argued that Bruen was correctly applied in Rahimi. But she tried to undercut Rahimi's historical approach given that "the weapons in question have evolved dramatically," citing an article about how it took a long time to load 18th century guns. On the contrary, the Chief Justice reiterated that the term "arms" applies, "prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence," adding that protection does not apply "only to muskets and sabers." Is this a warmup for the fight over "assault weapon" bans?

Justice Sotomayor added that "I remain troubled by Bruen's myopic focus on history and tradition," yearning for the days of "means-end scrutiny that this Court rejected in Bruen." Still, she conceded that "the Second Amendment does not yield automatically to the Government's compelling interest," and we should recall that she did not dissent in the per curiam Caetano v. Massachusetts stun gun decision.

Justice Jackson also disagreed with Bruen, questioned "the workability of that legal standard," and claimed that the lower courts "say there is little method to Bruen's madness." She decried that "courts must sift through troves of centuries-old documentation looking for supportive historical evidence," even though many First and Fourth Amendment decisions have also gone through that process. She concluded that the legal standards must "foster stability, facilitate consistency, and promote predictability," but "Bruen's history-focused test ticks none of those boxes."

When compared with this complete rejection of the text-history approach, the differences between the Chief Justice and Justice Thomas look a lot smaller. Their quarrel is about the application of the rule, not the rule itself. There's no hint that any of the six Justices who are favorable to the Second........

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