Publications

Greetings, Court Fans!

With fourteen cases left to decide as of yesterday (give or take, depending on which, if any, are consolidated), we were expecting quite a few opinion announcements this morning. Instead, we got just two:

• Murthy v. Missouri (No. 23-411), holding that plaintiffs—individual social-media users and the states of Louisiana and Missouri—lacked standing to sue the Surgeon General and other Executive Branch officials for injunctive relief relating to the Biden administration’s alleged coercion of social-media platforms to suppress disfavored posts regarding COVID-19 and the 2020 election; and
• Snyder v. United States (No. 23-108), holding that a federal law prohibiting state and local officials from accepting bribes, i.e., payments made before an official acts, does not extend to “gratuities,” i.e., payments received for past official acts.

That means we’re either in for two epic decision days to round out the month or, for the first time since COVID interrupted the Court’s schedule, we’ll have decisions announced in July. In any case, the most high-profile decisions of the term remain outstanding. But the last couple of weeks have nevertheless provided some choice appetizers for Court Fans interested in the jurisprudential divides on the post-RBG Roberts Court. In today’s update, we’ll take a deep dive into one of two recent cases illustrating the conservative majority’s varying approaches to “history and tradition” in constitutional interpretation: United States v. Rahimi (No. 22-915), holding that a federal statute criminalizing the possession of a firearm by someone under a domestic-violence restraining order does not facially violate the Second Amendment.

As even moderate Court Fans will recall, back in OT21, the Court held, in New York State Rifle & Pistol Association v. Bruen (2022), that gun-control laws will generally survive Second Amendment scrutiny only if the government can “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” In the years since, lower courts have labored to apply this “history and tradition” approach to various modern gun-control laws, including the numerous provisions of the federal Gun Control Act of 1968. Among those is 18 U.S.C. §922(g), which makes it unlawful for various categories of individuals to possess a firearm. Those categories include anyone who has been convicted of a felony ((g)(1)), anyone “who is an unlawful user of or addicted to any controlled substance” ((g)(3)), any undocumented immigrant ((g)(5)), and anyone who is subject to a domestic-violence restraining order ((g)(8)).

Zackey Rahimi falls into this last category (and quite possibly others besides). He was hit with a restraining order after dragging his girlfriend (and mother of his child) into a parking lot and banging her head into the dashboard of his car (and then proceeding to shoot at a bystander who attempted to intervene). The restraining order, which detailed other instances of “family violence,” stated that Rahimi posed “a credible threat” to the safety of his girlfriend and child. It prohibited most contact and also suspended Rahimi’s gun license for a period of two years. Within three months, Rahimi violated the order by threatening another woman with a gun, leading to his arrest for aggravated assault. He was subsequently identified as a suspect in at least five other shootings, including a drug-dealing incident, a couple of road-rage incidents, and an incident in which he fired his gun into the air at a fast-food restaurant after his friend’s credit-card was declined.

In short, Rahimi is probably not the standard-bearer that the NRA would have chosen to mount a Second Amendment challenge to federal gun laws. But when he was federally charged with violating 18 U.S.C. §922(g)(8) for possessing a firearm while subject to the restraining order, his public defender duly raised a Second Amendment defense, arguing that §922(g)(8) is unconstitutional on its face. The District Court, and initially the Fifth Circuit, disagreed, but that was pre-Bruen. After the Supreme Court handed down Bruen, Rahimi asked the Fifth Circuit to reconsider, and it agreed with him that §922(g)(8) had no historical analogue, rendering it unconstitutional.

The Supreme Court granted cert, and reversed 8-1, with only Justice Thomas (the author of Bruen) dissenting. But despite the near unanimity on the result, there were seven opinions (five concurrences joining the majority and Thomas’s dissent), reflecting fractured views on the role and application of history in interpreting the Second Amendment.

Chief Justice Roberts wrote for the majority. As he put it, the Second Amendment (as construed in Bruen) requires that a modern-day gun regulation must be “relevantly similar” to historical gun regulations to withstand a constitutional challenge. There need not, however, be a “historical twin.” In other words, courts must consider “whether the challenged regulation is consistent with the principles that underpin the Nation’s regulatory tradition.” The Chief concluded that U.S. laws had always allowed the temporary disarming of individuals found by a court to pose a credible threat to the physical safety of others. Just as District of Columbia v. Heller (2008) did not limit the individual right to bear arms to colonial-era weapons, Bruen did not limit permissible weapons regulations to only those identical to colonial-era regulations. “Holding otherwise,” the Chief mused, “would be as mistaken as applying the protections of the right only to muskets and sabers.”

The question, then, was whether §922(g)(8) is “relevantly similar” to founding-era restrictions. The Chief found that it was, pointing in particular to “two distinct legal regimes” prevalent in the 1700s and early 1800s: “surety” laws and “going armed” laws. Surety laws permitted magistrates to require that individuals “suspected of future misbehavior” post bonds, which would be forfeited if they “broke the peace.” “Going armed” laws barred people who had previously “menaced others with firearms” from “riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land.” “Taken together,” the Chief reasoned, “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.” While §922(g)(8) is not an identical match to these founding-era laws, it “fits neatly within the tradition the surety and going armed laws represent” by precluding specific individuals credibly found to pose a threat to others from possessing a firearm, with due-process protections, and for a limited duration (i.e., for as long as the individual is subject to the restraining order). While these features made §922(g)(8) a particularly good analogue to surety and going-armed laws, the Chief went out of his way to state that “we do not suggest that the Second Amendment prohibits the enactment of [other] laws banning the possession of guns thought by a legislature to present a special danger of misuse.” That may be good news for the Government as it defends other subsections of §922(g) from constitutional challenge, though it appears the Court will take a piecemeal approach to determining the constitutionality of other restrictions on gun possession.

Justice Sotomayor concurred, joined by Justice Kagan. She registered her continued disagreement with Bruen and its “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,” including gun violence. But she acknowledged that the Court’s interpretation at least “permits a historical inquiry calibrated to reveal something useful and transferable to the present day.” By contrast, Justice Thomas’s insistence on finding a precise historical analogue to the challenged regulation makes little sense, since guns are much different now than they were in the eighteenth century, and society’s tolerance for domestic violence is much lower.

In short, Sotomayor argued, “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.” She reiterated that the ordinary tools of constitutional analysis (judicial balancing tests that determine the level of scrutiny and then apply it to the government interest and the individual interest) should be applied, not a bespoke Second Amendment history and tradition test.

Justice Gorsuch responded to Sotomayor’s concurrence (without naming it) in a short opinion of his own. He underscored the narrowness of the majority’s opinion and reaffirmed what he views as the centrality of “text, history, and tradition” in interpreting the Constitution. That the world has changed doesn’t matter, Gorsuch maintained, unless the Constitution is also changed.

Justice Kavanaugh concurred, also alone, providing his own (much longer) defense of the Court’s Second Amendment jurisprudence (in both Bruen and Rahimi), emphasizing the “proper roles of text, history, and precedent in constitutional interpretation.” For Kavanaugh, text comes first, but “American law has long recognized, as a matter of original understanding and original meaning” that even seemingly absolute constitutional guarantees (like those in the First and Second Amendments) come with exceptions. So how should courts define the contours of constitutional rights and their exceptions? Kavanaugh acknowledged that “judicial precedent informs or controls the answer” in many cases. But in the absence of precedent (or when precedent is unreliable), “there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.” In Kavanaugh’s view, relying on history is “less subjective” than relying on policy and “more consistent with the properly neutral judicial role.” Kavanaugh then provided a handy guide on how to persuade him (and possibly only him) that history supports your interpretation of constitutional text. And he concluded with a polite screed against means-ends balancing tests, which he views as “policy by another name.” Though he does not suggest that the Court should overrule the (many) cases in which it has applied balancing tests, Kavanaugh urged courts not to “extend[] these tests to new areas, including the Second Amendment.”

Justice Barrett also concurred alone. She too highlighted the importance of history in interpreting constitutional text—even when the text is seemingly plain—but her use of history is at once more rigid and more flexible than the other conservatives’. More rigid because Justice Barrett insists that “the history that matters most is the history surrounding the ratification of the text,” as opposed to post-enactment history, which can be useful in evidencing an original understanding but “requires some justification other than originalism simpliciter.” For Barrett, historical “analogues” that long post-date the ratification of the Second Amendment provide little guidance on the original understanding of its scope. On the other hand, Justice Barrett’s originalism is more flexible in that she does not insist on historical analogues to begin with. Criticizing Justice Thomas’s dissent, Barrett argued that insisting on “overly specific” historical analogues poses two “serious problems”: “It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’ And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority.” “[O]riginalism,” she maintained, “does not require such an approach.”

Justice Jackson too concurred alone. She noted her disagreement with Bruen but focused on the workability problems that the history-and-tradition test created for lower courts, which are not well equipped to seek and apply centuries-old historical evidence every time someone challenges a gun law. Before Bruen, lower courts applying traditional balancing tests to the right recognized in Heller generally came to the same conclusions; after Bruen, lower courts applying the history-and-tradition test have come to radically divergent conclusions. Consistency and predictability are important, Jackson maintained, and Bruen undermines those principles, to the detriment of the rule of law.

Finally, Justice Thomas—the author of the decision the Court applied to §922(g)(8)—dissented. He lamented the majority’s watering down of Bruen’s history-and-tradition test: “calling a modern and historical law comparably justified because they both prevent unfit persons from accessing firearms would render our comparable-justification inquiry toothless.” He proceeded to reject the Court’s proffered historical evidence piece by piece. English precedents involving “dangerous persons” are irrelevant because the Revolution aimed to throw off English law (and rule) not to incorporate it. Even on their own terms, the English precedents differed meaningfully from §922(g)(8), since they dealt with treason and rebellion; “religious and political conflict,” not “interpersonal violence.” And while surety laws aimed to address interpersonal violence—including spousal violence—those laws carried very different penalties from §922(g)(8). Surety laws led to a fine—the loss of money, not the loss of guns. Going-armed (affray) laws differed even more starkly. An affray could occur only in public and had to involve the public. Affray laws didn’t bar “carrying firearms at home or even public carry generally,” and they certainly did not address “interpersonal violence in the home.” Moreover, while affray laws allowed imprisonment, that imprisonment only happened after a criminal conviction for past behavior, not on the basis of feared future behavior. Justice Thomas also rejected the Court’s effort to analogize the due-process protections of §922(g)(8) and its historical analogues. In short, he insisted that the Government had not shown that barring someone suspected of future interpersonal violence from possessing a firearm “is consistent with our historical tradition of firearm regulation.” Therefore, he maintained, §922(g)(8) is unconstitutional. If the Government wants to disarm a dangerous person, it can do so by arresting and prosecuting him; but the Second Amendment prohibits disarming a person merely because he is subject to a domestic-violence restraining order.