22 Bruen and Rahimi: The New History and Tradition Test for Gun Rights
While the Court painted Bruen’s history and tradition test as superior to an interest-means test in terms of protecting Second Amendment rights, the test did lead to uncertainty at the lower courts. In particular, judges struggled with two problems:
- How close, when comparing laws to historical analogues, must a contemporary statute be to be constitutional? Thomas stated in his majority opinion that the comparison process is “neither a regulatory straightjacket nor a regulatory blank check.” What does this mean in real terms? Must the two statutes have similar purposes or goals? Similar means? Similar scopes of punishment? Should the comparison itself be strict, or loose?
- What types of historical evidence are required to establish such a comparison? Colonial laws? Laws enacted after the Bill of Rights? Laws enacted around the ratification of the 14th amendment and its eventual extension of the Second Amendment to the states? How many such laws are needed to establish a “tradition” of regulation?
These questions, along with the Court’s suggestion that prior appellate precedent had been too deferential to the government, created a new legal environment more hostile to gun regulations. One example: a district court judge struck down a Texas law banning 18-21-year-olds from receiving public carry permits. There was no history or tradition, the judge held, of preventing otherwise law-abiding young adults from carrying firearms. Other laws facing challenge under Bruen included bans on high-capacity magazines, prohibitions against felons who committed non-violent felonies from owning firearms, or bans on “assault weapons.”
The Bruen framework was particularly challenging to regulations that focused on problems that had not been treated seriously by 18th or 19th-century society, such as domestic violence. Given the high frequency of gun violence by intimate partners (particularly though not exclusively against women), federal law prohibits the possession of firearms by individuals under a civil restraining order for domestic violence. This law aims to protect individuals from partner violence either during the period before a conviction can be secured or in cases where there is sufficient evidence to justify a civil order, but perhaps not a criminal conviction.
This federal prohibition was challenged in United States v. Rahimi (2024). After several acts of harassment and violence towards his girlfriend (including waving a gun at her and firing that gun at a witness), Rahimi was put under a civil restraining order from a Texas court, which also activated the federal prohibition on owning firearms. When Rahimi was arrested after repeatedly breaking the order, multiple firearms were found at his home. He was charged and convinced in federal court, after which he appealed, arguing that the law was a facial violation of the Second Amendment. The district court had already rejected this claim, but on appeal, the 5th Circuit Court of Appeals held that using Bruen, there was no history or tradition of disarming someone who posed a threat to another individual, absent a criminal conviction. In other words, because there was no history and tradition of protecting potential victims by using restraining orders to disarm potential offenders, the law was unconstitutional.
The Supreme Court took the federal government’s appeal. Rahimi was a noteworthy case in at least two respects. First, Rahimi was an extraordinarily unsympathetic petitioner who not only had harassed and threatened his girlfriend but had been involved in multiple other separate shootings. As such, he met the common-sense definition of a “dangerous person” who should lose their right to firearms. Ruling in favor of Rahimi would do a Court suffering from low approval ratings little favors. Second, Rahimi would be the first Supreme Court case after Bruen to employ the history and traditions test. The Court’s reasoning here would give lower courts more information on how closely a contemporary law must match historical firearm regulation to be constitutional, further refining the rules of the new legal regime.
United States. v. Rahimi
602 U.S. 680 (2024)
Facts: Federal law 18 U.S.C. §922(g)(8) prohibited individuals under a civil restraining order for domestic violence from owning firearms. Zackey Rahimi was subject to such an order, after several acts of harassment against his girlfriend, including brandishing a weapon against her after assaulting her and firing that weapon at a witness to the event. After multiple violations of the restraining order, Rahimi was arrested, during which the police found firearms at his home. Rahimi was charged and convicted of breaking 18 U.S.C. §922(g)(8).
Question: Does 18 U.S.C. §922(g)(8), a federal prohibition on owning firearms by individuals under a civil restraining order for domestic violence, violate the Second Amendment?
Vote: No (8-1)
For the Court: Justice Roberts
Concurring opinion: Justice Sotomayor
Concurring opinion: Justice Gorsuch (omitted)
Concurring opinion: Justice Kavanaugh
Concurring opinion: Justice Barrett (omitted)
Concurring opinion: Justice Jackson
Dissenting opinion: Justice Thomas
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. Respondent Zackey Rahimi is subject to such an order. The question is whether this provision may be enforced against him consistent with the Second Amendment.
I
A
In December 2019, Rahimi met his girlfriend, C. M., for lunch in a parking lot. C. M. is also the mother of Rahimi’s young child, A. R. During the meal, Rahimi and C. M. began arguing, and Rahimi became enraged. C. M. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard. When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the passenger seat. C. M. took advantage of the opportunity to escape. Rahimi fired as she fled, although it is unclear whether he was aiming at C. M. or the witness. Rahimi later called C. M. and warned that he would shoot her if she reported the incident.
Undeterred by this threat, C. M. went to court to seek a restraining order. In the affidavit accompanying her application, C. M. recounted the parking lot incident as well as other assaults. She also detailed how Rahimi’s conduct had endangered A. R. Although Rahimi had an opportunity to contest C. M.’s testimony, he did not do so. On February 5, 2020, a state court in Tarrant County, Texas, issued a restraining order against him. The order, entered with the consent of both parties, included a finding that Rahimi had committed “family violence.” It also found that this violence was “likely to occur again” and that Rahimi posed “a credible threat” to the “physical safety” of C. M. or A. R. Based on these findings, the order prohibited Rahimi from threatening C. M. or her family for two years or contacting C. M. during that period except to discuss A. R. It also suspended Rahimi’s gun license for two years…
In May, however, Rahimi violated the order by approaching C. M.’s home at night. He also began contacting her through several social media accounts.
In November, Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings…
B
Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. §922(g)(8)…
Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) violated on its face the Second Amendment right to keep and bear arms. Concluding that Circuit precedent foreclosed Rahimi’s Second Amendment challenge, the District Court denied his motion. Rahimi then pleaded guilty. On appeal, he again raised his Second Amendment challenge. The appeal was denied, and Rahimi petitioned for rehearing en banc.
While Rahimi’s petition was pending, this Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen (2022). In Bruen, we explained that when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation’s historical tradition of firearm regulation.”
In light of Bruen, the panel withdrew the prior opinion and ordered additional briefing. A new panel then heard oral argument and reversed. Surveying the evidence that the Government had identified, the panel concluded that Section 922(g)(8) does not fit within our tradition of firearm regulation. Judge Ho wrote separately to express his view that the panel’s ruling did not conflict with the interest in protecting people from violent individuals.
We granted certiorari.
II
When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.
A
…
In Heller, our inquiry into the scope of the right began with “constitutional text and history.” In Bruen, we directed courts to examine our “historical tradition of firearm regulation” to help delineate the contours of the right. We explained that if a challenged regulation fits within that tradition, it is lawful under the Second Amendment. We also clarified that when the Government regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it bears the burden to “justify its regulation.”
Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding… By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.
As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition…
Why and how the regulation burdens the right are central to this inquiry. For example, 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. 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. And when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.” The law must comport with the principles underlying the Second Amendment, but it need not be a “dead ringer” or a “historical twin.”
B
Bearing these principles in mind, we conclude that Section 922(g)(8) survives Rahimi’s challenge.
1
Rahimi challenges Section 922(g)(8) on its face. This is the “most difficult challenge to mount successfully,” because it requires a defendant to “establish that no set of circumstances exists under which the Act would be valid.” … here the provision is constitutional as applied to the facts of Rahimi’s own case.
… Section 922(g)(8)(C)(i) bars an individual from possessing a firearm if his restraining order includes a finding that he poses “a credible threat to the physical safety” of a protected person. Our analysis starts and stops with Section 922(g)(8)(C)(i) because the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others…
2
This Court reviewed the history of American gun laws extensively in Heller and Bruen. From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others… Parliament began codifying prohibitions against such conduct as early as the 1200s and 1300s, most notably in the Statute of Northampton of 1328…
The Glorious Revolution cut back on the power of the Crown to disarm its subjects unilaterally… Parliament adopted the English Bill of Rights, which guaranteed “that the Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.” But as the document itself memorialized, the principle that arms-bearing was constrained “by Law” remained…
… By the time of the founding, however, state constitutions and the Second Amendment had largely eliminated governmental authority to disarm political opponents on this side of the Atlantic. But regulations targeting individuals who physically threatened others persisted. Such conduct was often addressed through ordinary criminal laws and civil actions, such as prohibitions on fighting or private suits against individuals who threatened others. By the 1700s and early 1800s, however, two distinct legal regimes had developed that specifically addressed firearms violence.
The first were the surety laws…
Under the surety laws, a magistrate could “oblig[e] those persons, [of] whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance . . . that such offence . . . shall not happen[,] by finding pledges or securities.” In other words, the law authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed. If the individual did post a bond and then broke the peace, the bond would be forfeit.
Well entrenched in the common law, the surety laws could be invoked to prevent all forms of violence, including spousal abuse…
While communities sometimes resorted to public shaming or vigilante justice to chastise abusers, sureties provided the public with a more measured solution…
Importantly for this case, the surety laws also targeted the misuse of firearms. In 1795, for example, Massachusetts enacted a law authorizing justices of the peace to “arrest” all who “go armed offensively [and] require of the offender to find sureties for his keeping the peace.” …
While the surety laws provided a mechanism for preventing violence before it occurred, a second regime provided a mechanism for punishing those who had menaced others with firearms. These were the “going armed” laws, a particular subset of the ancient common-law prohibition on affrays…
Although the prototypical affray involved fighting in public, commentators understood affrays to encompass the offense of “arm[ing]” oneself “to the Terror of the People,” Moreover, the prohibitions—on fighting and going armed—were often codified in the same statutes…
Whether classified as an affray law or a distinct prohibition, the going armed laws prohibited “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.” Such conduct disrupted the “public order” and “le[d] almost necessarily to actual violence.” Therefore, the law punished these acts with “forfeiture of the arms . . . and imprisonment.”…
In some instances, prohibitions on going armed and affrays were incorporated into American jurisprudence through the common law…
3
Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be…
Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found to threaten the physical safety of another. This provision is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right. Section 922(g)(8) restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally.
The burden Section 922(g)(8) imposes on the right to bear arms also fits within our regulatory tradition… Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another…
Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi. Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order…
Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.
Rahimi argues Heller requires us to affirm, because Section 922(g)(8) bars individuals subject to restraining orders from possessing guns in the home, and in Heller we invalidated an “absolute prohibition of handguns . . . in the home.” But Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.”
Our analysis of the surety laws in Bruen also does not help Rahimi. In Bruen, we explained that the surety laws were not a proper historical analogue for New York’s gun licensing regime. What distinguished the regimes, we observed, was that the surety laws “presumed that individuals had a right to . . . carry,” whereas New York’s law effectively presumed that no citizen had such a right, absent a special need…
4
In short, we have no trouble concluding that Section 922(g)(8) survives Rahimi’s facial challenge…
The dissent reaches a contrary conclusion, primarily on the ground that the historical analogues for Section 922(g)(8) are not sufficiently similar to place that provision in our historical tradition. The dissent does, however, acknowledge that Section 922(g)(8) is within that tradition when it comes to the “why” of the appropriate inquiry. The objection is to the “how.” For the reasons we have set forth, however, we conclude that Section 922(g)(8) satisfies that part of the inquiry as well. As we said in Bruen, a “historical twin” is not required.
For its part, the Fifth Circuit made two errors. First, like the dissent, it read Bruen to require a “historical twin” rather than a “historical analogue.”Second, it did not correctly apply our precedents governing facial challenges. As we have said in other contexts,“[w]henlegislationandtheConstitution brush up against each other, [a court’s] task is to seek harmony, not to manufacture conflict.”Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where ection922(g)(8) might raise constitutional concerns…
5
…
In Heller, McDonald, and Bruen, this Court did not “undertake an exhaustive historical analysis … of the full scope of the Second Amendment.” Bruen. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.
The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, concurring.
Today, the Court applies its decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022), for the first time. Although I continue to believe that Bruen was wrongly decided, I join the Court’s opinion applying that precedent to uphold 18 U. S. C. §922(g)(8).
… I write separately to highlight why the Court’s interpretation of Bruen, and not the dissent’s, is the right one. In short, the Court’s interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.
I
Even under Bruen, this is an easy case. Section 922(g)(8) prohibits an individual subject to a domestic violence restraining order from possessing a firearm, so long as certain criteria are met. Section 922(g)(8) is wholly consistent with the Nation’s history and tradition of firearm regulation.
The Court correctly concludes that “the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” …
The Court’s opinion also clarifies an important methodological point that bears repeating: Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should “conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Here, for example, the Government has not identified a founding-era or Reconstruction-era law that specifically disarmed domestic abusers, but it did not need to do so. Although §922(g)(8) “is by no means identical” to the surety or going armed laws, it “restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws d[id],” That shared principle is sufficient.
II
The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen. It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal… The dissent urges a close look “at the historical law’s justification as articulated during the relevant time period,” and a “careful parsing of regulatory burdens” to ensure that courts do not “stray too far from [history] by eliding material differences between historical and modern laws.” The dissent criticizes this Court for adopting a more “piecemeal approach” that distills principles from a variety of historical evidence rather than insisting on a precise historical analogue.
If the dissent’s interpretation of Bruen were the law, then Bruen really would be the “one-way ratchet” that I and the other dissenters in that case feared, “disqualify[ing] virtually any ‘representative historical analogue’ and mak[ing] it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.” Thankfully, the Court rejects that rigid approach to the historical inquiry. As the Court puts it today, Bruen was “not meant to suggest a law trapped in amber.”
This case lays bare the perils of the dissent’s approach. Because the dissent concludes that “§922(g)(8) addresses a societal problem—the risk of interpersonal violence—‘that has persisted since the 18th century,’” it insists that the means of addressing that problem cannot be “‘materially different’” from the means that existed in the 18th century… According to the dissent, the solution cannot be “materially different” even when societal perception of the problem has changed, and even if it is now clear to everyone that the historical means of addressing the problem had been wholly inadequate. Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, it is no surprise that that generation did not have an equivalent to §922(g)(8). Under the dissent’s approach, the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary. History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.
III
The Court today clarifies Bruen’s historical inquiry and rejects the dissent’s exacting historical test. I welcome that development. That being said, I remain troubled by Bruen’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today. In my view, the Second Amendment allows legislators “to take account of the serious problems posed by gun violence,” Bruen, not merely by asking what their predecessors at the time of the founding or Reconstruction thought, but by listening to their constituents and crafting new and appropriately tailored solutions…
JUSTICE GORSUCH, concurring [omitted]
JUSTICE KAVANAUGH, concurring.
… I add this concurring opinion to review the proper roles of text, history, and precedent in constitutional interpretation.
… A recurring and difficult issue for judges, therefore, is how to interpret vague constitutional text…
…. absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.
Generally speaking, the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text. The policy approach rests on the philosophical or policy dispositions of the individual judge.
History, not policy, is the proper guide.
For more than 200 years, this Court has relied on history when construing vague constitutional text in all manner of constitutional disputes. For good reason. History can supply evidence of the original meaning of vague text. History is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.
Judges are like umpires, as THE CHIEF JUSTICE has aptly explained. And in a constitutional system that counts on an independent Judiciary, judges must act like umpires. To be an umpire, the judge “must stick close to the text and the history, and their fair implications,” because there “is no principled way” for a neutral judge “to prefer any claimed human value to any other” …
Some say that courts should determine exceptions to broadly worded individual rights, including the Second Amendment, by looking to policy. Uphold a law if it is a good idea; strike it down if it is not. True, the proponents of a policy-based approach to interpretation of broadly worded or vague constitutional text usually do not say so explicitly (although some do). Rather, they support a balancing approach variously known as means-end scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite, or strict or intermediate or intermediate-plus or rigorous or skeptical scrutiny. Whatever the label of the day, that balancing approach is policy by another name.
To begin, as I have explained, that kind of balancing approach to constitutional interpretation departs from what Framers such as Madison stated, what jurists such as Marshall and Scalia did, what judges as umpires should strive to do, and what this Court has actually done across the constitutional landscape for the last two centuries…
To be clear, I am not suggesting that the Court overrule cases where the Court has applied those heightened-scrutiny tests. But I am challenging the notion that those tests are the ordinary approach to constitutional interpretation. And I am arguing against extending those tests to new areas, including the Second Amendment…
The subjective balancing approach forces judges to act more like legislators who decide what the law should be, rather than judges who “say what the law is.” …
The historical approach is not perfect. But “the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world.” And the historical approach is superior to judicial policymaking. The historical approach “depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor.”…
JUSTICE BARRETT, concurring [omitted]
JUSTICE JACKSON, concurring.
… I write separately because we now have two years’ worth of post-Bruen cases under our belts, and the experiences of courts applying its history-and-tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up “misunderst[andings],” is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.
I
… When this Court adopts a new legal standard, as we did in Bruen, we do not do so in a vacuum. The tests we establish bind lower court judges, who then apply those legal standards to the cases before them. … So when courts signal they are having trouble with one of our standards, we should pay attention. The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. It isn’t just that Bruen’s history-and-tradition test is burdensome (though that is no small thing to courts with heavier caseloads and fewer resources than we have). The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars report that lower courts applying Bruen’s approach have been unable to produce “consistent, principled results.” Given this, it appears indisputable that, after Bruen, “confusion plagu[es] the lower courts.” …
II
This discord is striking when compared to the relative harmony that had developed prior to Bruen. To be sure, our decision in District of Columbia v. Heller, which first recognized an individual right to keep and bear arms for self-defense, was disruptive in its own way. After all, before Heller, “[t]he meaning of the Second Amendment ha[d] been considered settled by courts and legislatures for over two centuries,” and “judges and legislators . . . properly believed . . . that the Second Amendment did not reach possession of firearms for purely private activities.” Nonetheless, after Heller, lower courts took up the necessary work of reviewing burdens on this newly unearthed right. By the time this Court decided Bruen, every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework that incorporated means-end scrutiny….
Rejecting that “two-step approach” as having “one step too many,” the Bruen majority subbed in another two-step evaluation. Courts must, first, determine whether “the Second Amendment’s plain text covers an individual’s conduct.” If it does, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
No one seems to question that “[h]istory has a role to play in Second Amendment analysis.” But, per Bruen, courts evaluating a Second Amendment challenge must consider history to the exclusion of all else. This means legislators must locate and produce—and courts must sift through—troves of centuries-old documentation looking for supportive historical evidence…
This very case provides a prime example of the pitfalls of Bruen’s approach. Having been told that a key marker of a constitutional gun regulation is “a well-established and representative historical analogue,” Rahimi argued below that “there is little or no historical evidence suggesting disarmament for those who committed domestic violence; and there is certainly no tradition of disarming people subject to a no-contact order related to domestic violence.” The Government then proffered what it maintained were sufficient historical analogues to 18 U. S. C. §922(g)(8), including surety and going armed laws. But the Fifth Circuit concluded that the federal statute was unconstitutional because the Government’s analogues were not “‘relevantly similar.’”
Neither the parties nor the Fifth Circuit had the benefit of today’s decision, in which we hold that the Government had in fact offered “ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” But even setting aside whether the historical examples the Government found were sufficiently analogous, just canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task…
Consistent analyses and outcomes are likely to remain elusive because whether Bruen’s test is satisfied in a particular case seems to depend on the suitability of whatever historical sources the parties can manage to cobble together, as well as the level of generality at which a court evaluates those sources—neither of which we have as yet adequately clarified.
And the unresolved questions hardly end there. Who is protected by the Second Amendment, from a historical perspective? To what conduct does the Second Amendment’s plain text apply? To what historical era (or eras) should courts look to divine a historical tradition of gun regulation? How many analogues add up to a tradition? Must there be evidence that those analogues were enforced or subject to judicial scrutiny? How much support can nonstatutory sources lend? …
… By underscoring that gun regulations need only “comport with the principles underlying the Second Amendment,” today’s opinion inches that ball forward.
But it is becoming increasingly obvious that there are miles to go. Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruen’s history-focused test ticks none of those boxes…
JUSTICE THOMAS, dissenting.
After New York State Rifle & Pistol Assn., Inc. v. Bruen (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent.
I
… Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections. And, §922(g)(8) does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order.
In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process… The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order.
Despite §922(g)(8)’s broad scope and lack of process, it carries strong penalties. Any violation of §922(g)(8) is a felony punishable by up to 15 years’ imprisonment. And, a conviction for violating §922(g)(8) itself triggers a permanent, life-long prohibition on possessing firearms and ammunition…
II
… When considering whether a modern regulation is consistent with historical regulations and thus overcomes the presumption against firearms restrictions, our precedents “point toward at least two metrics [of comparison]: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” A historical law must satisfy both considerations to serve as a comparator. While a historical law need not be a “historical twin,” it must be “well-established and representative” to serve as a historical analogue…
III
Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendment— possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the “materially different means” of surety laws…
A
It is undisputed that §922(g)(8) targets conduct encompassed by the Second Amendment’s plain text…
B
The Government fails to carry its burden of proving that §922(g)(8) is “consistent with the Nation’s historical tradition of firearm regulation.” Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification…
The Government’s failure is unsurprising given that §922(g)(8) addresses a societal problem—the risk of interpersonal violence—“that has persisted since the 18th century,” yet was addressed “through [the] materially different means” of surety laws. Surety laws were, in a nutshell, a fine on certain behavior. If a person threatened someone in his community, he was given the choice to either keep the peace or forfeit a sum of money. Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden. The Government has not shown that §922(g)(8)’s more severe approach is consistent with our historical tradition of firearm regulation.
1
The Government does not offer a single historical regulation that is relevantly similar to §922(g)(8).
i
The Government points to various English laws from the late 1600s and early 1700s to argue that there is a tradition of restricting the rights of “dangerous” persons…
At first glance, these laws targeting “dangerous” persons might appear relevant. After all, if the Second Amendment right was historically understood to allow an official to disarm anyone he deemed “dangerous,” it may follow that modern Congresses can do the same. Yet, historical context compels the opposite conclusion. The Second Amendment stems from English resistance against “dangerous” person laws…
The sweeping disarmament authority wielded by English officials during the 1600s, including the Militia Act of 1662, prompted the English to enshrine an individual right to keep and bear arms…
Even on their own terms, laws targeting “dangerous” persons cannot support §922(g)(8). Those laws were driven by a justification distinct from that of §922(g)(8)—quashing treason and rebellion…
While the English were concerned about preventing insurrection and armed rebellion, §922(g)(8) is concerned with preventing interpersonal violence. “Dangerous” person laws thus offer the Government no support.
ii
The Government also points to historical commentary referring to the right of “peaceable” citizens to carry arms…
In addition to the proposals, the Government throws in a hodgepodge of sources from the mid-to-late 1800s that use the phrase “peaceable” in relation to firearms…
Sources that do discuss disarmament generally describe non-peaceable citizens as those who threaten the public or government… the term “loyal and peaceable” distinguished between the former rebels residing in Missouri who were disarmed to prevent rebellion and those citizens who would help fight against them.
The Government’s smorgasbord of commentary proves little of relevance, and it certainly does not establish a “historical tradition that delimits the outer bounds of the right to keep and bear arms.”
iii
The Government’s remaining evidence is even further afield. The Government points to an assortment of firearm regulations, covering everything from storage practices to treason and mental illness. They are all irrelevant for purposes of §922(g)(8)…
2
This dearth of evidence is unsurprising because the Founders responded to the societal problem of interpersonal violence through a less burdensome regime: surety laws. Tracing back to early English history, surety laws were a preventative mechanism for ensuring an individual’s future peaceable conduct…
Suretydemandswerealsoexpresslyavailabletoprevent domestic violence. Surety could be sought by “a wife against her husband who threatens to kill her or beat her outrageously, or, if she have notorious cause to fear he will do either.”
3
Although surety laws shared a common justification with §922(g)(8), surety laws imposed a materially different burden. Critically, a surety demand did not alter an individual’s right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime…
By contrast, §922(g)(8) strips an individual of his Second Amendment right. The statute’s breadth cannot be overstated. For one, §922(g) criminalizes nearly all conduct related to covered firearms and ammunition. Most fundamentally, possession is prohibited, except in the rarest of circumstances…
These sweeping prohibitions are criminally enforced. To violate the statute is a felony, punishable by up to 15 years. That felony conviction, in turn, triggers a permanent, life-long prohibition on exercising the Second Amendment right.
The combination of the Government’s sweeping view of the firearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered firearms and ammunition makes §922(g)(8)’s burden unmistakable: The statute revokes a citizen’s Second Amendment right while the civil restraining order is in place. And, that revocation is absolute…
That combination of burdens places §922(g)(8) in an entirely different stratum from surety laws. Surety laws preserve the Second Amendment right, whereas §922(g)(8) strips an individual of that right. While a breach of a surety demand was punishable by a fine, §922(g)(8) is punishable by a felony conviction, which in turn permanently revokes an individual’s Second Amendment right. At base, it is difficult to imagine how surety laws can be considered relevantly similar to a complete ban on firearm ownership, possession, and use…
C
…
1
Next, the Court relies on affray laws prohibiting “riding or going armed, with dangerous or unusual weapons, [to] terrif[y] the good people of the land.” These laws do not justify §922(g)(8) either. As the Court concedes, why and how a historical regulation burdened the right of armed self-defense are central considerations. Affray laws are not a fit on either basis.
First, affray laws had a distinct justification from §922(g)(8) because they regulated only certain public conduct that injured the entire community. An affray was a “common Nusanc[e],” defined as “the fighting of two or more persons in some public place, to the terror of his majesty’s subjects.” Even though an affray generally required “actual violence,” certain other conduct could suffice…
Affrays were defined by their public nature and effect…
Affrays were intentionally distinguished from assaults and private interpersonal violence on that same basis…
Second, affray laws did not impose a burden analogous to §922(g)(8). They regulated a niche subset of Second Amendment-protected activity. As explained, affray laws prohibited only carrying certain weapons (“dangerous and unusual”) in a particular manner (“terrifying the good people of the land” without a need for self-defense) and in particular places (in public). Meanwhile, §922(g)(8) prevents a covered person from carrying any firearm or ammunition, in any manner, in any place, at any time, and for any reason…
The imposition of §922(g)(8)’s burden, however, has far fewer hurdles to clear. There is no requirement that the accused has actually committed a crime; instead, he need only be prohibited from threatening or using force, or pose a “credible threat” to an “intimate partner or child.”
Section 922(g)(8) thus revokes a person’s Second Amendment right based on the suspicion that he may commit a crime in the future. In addition, the only process required before that revocation is a hearing on the underlying court order. During that civil hearing—which is not even about §922(g)(8)—a person has fewer constitutional protections compared to a criminal prosecution for affray. Gone are the Sixth Amendment’s panoply of rights, including the rights to confront witnesses and have assistance of counsel, as well as the Fifth Amendment’s protection against double jeopardy. Civil proceedings also do not require proof beyond a reasonable doubt, and some States even set aside the rules of evidence, allowing parties to rely on hearsay… The differences between criminal prosecutions and civil hearings are numerous and consequential.
2
The Court recognizes that surety and affray laws on their own are not enough. So it takes pieces from each to stitch together an analogue for §922(g)(8). Our precedents foreclose that approach. The question before us is whether a single historical law has both a comparable burden and justification as §922(g)(8), not whether several laws can be cobbled together to qualify…
IV
… At argument, the Government invented yet another position. It explained that when it used the term “responsible” in its briefs, it really meant “not dangerous.” Thus, it posited that the Second Amendment protects only law-abiding and non-dangerous citizens…
B
The Government’s “law-abiding, dangerous citizen” theory is also antithetical to our constitutional structure. At bottom, its test stems from the idea that the Second Amendment points to general principles, not a historically grounded right. And, it asserts that one of those general principles is that Congress can disarm anyone it deems “dangerous, irresponsible, or otherwise unfit to possess arms.” This approach is wrong as a matter of constitutional interpretation, and it undermines the very purpose and function of the Second Amendment…
Yet, the Government’s “law-abiding, dangerous citizen” test—and indeed any similar, principle-based approach— would hollow out the Second Amendment of any substance. Congress could impose any firearm regulation so long as it targets“unfit” persons. And, of course, Congress would also dictate what “unfit” means and who qualifies…
* * *
This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment. Assuming C. M.’s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime. It cannot. The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence. The Government has not borne its burden to prove that §922(g)(8) is consistent with the Second Amendment’s text and historical understanding…