Two years ago, when the Supreme Court decided New York State Rifle and Pistol Association Inc. v. Bruen, created a jurisprudential mess that scrambled American gun laws. Not only has it cleared since, but the Supreme Court also cleared the way for one of the most promising legal innovations to prevent gun violence: the red flag law.
The Bruen administration did two things. First, it provides a wise decision and, in my opinion, that the “right of the people to keep and bear arms,” ​​as defined in the Second Amendment, includes the right to bear arms outside the home for self-defense. But the right is not limited. As Justice Brett Kavanaugh wrote in the concurrence in Bruen, the court does not “prohibit states from imposing license requirements to carry a handgun for self-defense” and that “properly interpreted, the Second Amendment allows for ‘various’ gun regulations.”
At the same time, the court stated the “text, history and tradition” test for evaluating gun restrictions in future federal cases. Under this test, gun control measures are constitutional only if the government can demonstrate the ban is “consistent with the historical tradition of firearms regulation.” This is the most important element in Bruen’s case. Before Bruen, lower courts had struggled to establish a uniform legal test for evaluating gun bans, and the Supreme Court had yet to provide clarity.
Justice Clarence Thomas wrote the majority opinion in a split 6-3 decision along ideological lines. He applied the test of text, history and tradition by walking through the history of American weapons law which is very complicated, often contradictory to determine whether the prohibition of New York has an analogy with the colonial era or the period after the ratification of the Second Amendment and the 14th Amendment, which applied the Second Amendment to the state. In a fair reading of Thomas’ opinion, lower courts will be hard pressed to uphold any gun restrictions unless they can point to an obvious historical match.
Not only is history bad, but judicial reliance on founding-era legislation suffers from an additional conceptual flaw: State legislatures are hardly staffed with constitutional scholars. Now and then, our state legislatures tend to enact unconstitutional laws.
Our courts are in part to check the legislature when they go astray. Courts do not rely on the legislature to establish constitutional doctrine. In our divided system of government, legislators are not tasked with interpreting constitutional law. Yes, they should consider the Constitution when they make laws, but the laws they make are not precedents. They are not and should not be judicially binding.
United States v. Rahimi, a case decided by the Supreme Court on Friday, was the result of Bruen’s confusion. And the results are amazing. Five of the six justices who voted for the majority in Bruen retreated from the obvious implications of the decision. Thomas, by contrast, doubled.
The case involved a man from Texas named Zackey Rahimi who was convicted of violating a federal law that prohibits individuals subject to domestic violence from possessing firearms. He had threatened his girlfriend and another woman with a gun, and he was a suspect in an additional spate of shootings. After he threatened his girlfriend, he signed an agreed domestic violence restraining order that prohibited him from threatening his girlfriend or contacting her unless they were discussing children. He immediately violated the order by approaching her home and contacting her on social media.
As Chief Justice John Roberts recounted in the majority opinion, when police obtained a warrant to search Rahimi’s home to investigate additional shootings, “they found a handgun, a rifle, ammunition — and a copy of the restraining order.”
Rahimi was charged with one count of possessing a firearm while subject to a domestic violence restraining order. He challenged the indictment, arguing that section 922(g)(8), the statute he was charged with, violated the Second Amendment. Both the trial court and the appeals court initially rejected the argument, but when the 5th Circuit considered a petition for rehearing with the entire court, the Supreme Court overruled Bruen.
An appeals court then reviewed the case, applying the Thomas test. It looked for a clear historical match and—unable to find one—claimed that the government had failed to “demonstrate that § 922(g)(8)’s limitations on Second Amendment rights are consistent with our nation’s historical tradition of firearms regulation.” If this ruling is upheld, everyone subject to a domestic violence restraining order could have immediate access to firearms, assuming no other legal restrictions.
Even worse, if the 5th Circuit’s decision is upheld, lawmakers trying to amend almost any gun regulation will have to be prepared to find colonial or early-American analogies for their proposed restrictions or watch them fail in court. This means that lawmakers who are faced with the problem of modern gun violence involving modern weapons will be limited to colonial and founding-era legal solutions.
In essence, this reverses the argument made by some gun control advocates, that the Second Amendment only protects colonial-era gun ownership. Under the Thomas test, the Second Amendment permits only colonial-era restrictions.
On Friday, eight judges of the Supreme Court not only ruled against Rahimi. He clarified his approach to text, history and tradition in a way that freed lower courts from the straits of finding the right historical analogy. Roberts stated that “some courts have misunderstood the methodology of the new Second Amendment cases.” Court precedents “are not intended to provide legal advice trapped in amber.” Or, as Justice Amy Coney Barrett wrote in her concurrence, “Historical rules reveal principles, not molds.”
As a practical matter, this means, as Roberts wrote, that “when the challenged law does not exactly correspond to its historical precursor, ‘it can still be sufficiently analogous to pass the constitutional muster.'” Applying this more flexible framework, the court reached a holding that will reverberate beyond the Rahimi case: “An individual found by a court to be a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”
That holding is relevant not only to domestic violence restraining orders; it is also suitable for so-called red flag or extreme risk protective orders. The law, which has been adopted in 21 states, empowers certain individuals (such as law enforcement or, in some cases, family members) to petition the courts for people to surrender their weapons if they exhibit dangerous or threatening behavior.
The reason for the red flag law is clear: Research has shown that mass shooters tend to broadcast their violent intentions before they act. A National Institute of Justice-funded study of more than 50 years of mass killings, for example, found that “in most cases” mass shooters “involved leaking plans before opening fire.” In 2018, Arizona’s Republican governor, Doug Ducey, released the “Safe Arizona Schools” report, which found that in each of the most recent and severe school shootings, red flag laws could have prevented the tragedy.
Thomas was the lone dissenter on Rahimi. Five judges wrote their own concurrences, many of whom argue that the 5th Circuit misunderstood and misapplied Bruen. But Thomas asserted that the 5th Circuit got its analysis right because the founding generation “addressed the same social problem as §922(g)(8) through a “materially different approach” from collateral law.
The law requires people suspected of threatening “future bad behavior” to post a bond, the amount of money they will forfeit if they break the law. If he doesn’t post bail, he will go to jail. But such reliance on a specific and narrow legislative approach is not required by originality. It is, in itself, a policy choice.
Barrett makes a good argument. “Defining tests that require very specific analogs has serious problems,” he wrote. “It forces 21st century regulations to follow late 18th century policy choices, giving us ‘laws trapped in amber.’ And it assumes that founding-era legislatures made the most of their power to regulate, thus adopting a ‘use it or lose it’ view of legislative authority.
“The assumption is wrong,” Barrett says, “and originality doesn’t require it.”
But that doesn’t mean history is meaningless. As Roberts wrote in the majority opinion, bail laws help confirm “what common sense suggests: When someone makes threats of physical violence against another person, the person making the threat can be disarmed.”
The difference between Roberts and Thomas is clear. Roberts looks to past practice to establish principles. Thomas looked to past practice as essentially setting a precedent.
Roberts got it right. As we consider new policies in the present, the actions of the past are instructive but not binding. Modern American parliamentarians are not limited by the colonial imagination.
