Bruen and Rahimi

Two years ago, in New York State Pistol and Rifle Association v. Bruen, the Supreme Court held that the government could justify a firearms regulation under the Second Amendment only by “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” The government could make this showing only by pointing to historical regulations analogous to the regulation under review.

Now, in United States v. Rahimi, the Court has upheld a federal statute forbidding possession of a firearm by someone subject to a domestic violence restraining order, as long as this order was based on “a finding that [this person] poses a ‘credible threat to the physical safety’ of a protected person.” Every member of the Court except Justice Clarence Thomas joined Chief Justice John Roberts’s majority opinion. Complaining that “some courts have misunderstood the methodology of our recent Second Amendment cases,” Roberts purported to apply the Bruen standard without modification.

What made disarming domestic abusers consistent with the nation’s historical tradition of firearms regulations? It certainly wasn’t that domestic abusers were barred from possessing weapons in the 18th or 19th centuries. As one federal district judge observed: “Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.”

Was it, then, that people other than domestic abusers—Native Americans, enslaved people, free Blacks, Catholics, and people who refused to swear allegiance to the Commonwealth of Pennsylvania or the Commonwealth of Virginia—had been disarmed in the past? No, it wasn’t that either. Some courts had concluded that, under Bruen, these discriminatory disarmaments could justify the disarmament today of nonviolent felons, violent felons, drug addicts, the mentally ill, minors, and domestic abusers. But Chief Justice Roberts didn’t rely on any of these past, shameful disarmaments.

Rather, Roberts described what he called “surety” and “going armed” laws and said: “Taken together, [these] laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” This statement and others in the majority and concurring opinions might have led you to believe that “surety” and “going armed” laws disarmed people, but they didn’t.

Read more at Justia Verdict