by Noah Feldman
The good news is that the U.S. Supreme Court seems poised to reverse a Fifth Circuit decision that said police can’t confiscate guns from domestic abusers. The bad news is that the high court’s 2022 Bruen decision, which guided the lower court’s ruling, remains firmly in place.
Bruen is among the worst-reasoned Supreme Court decisions in recent memory. And even after the justices rule on the case currently before them, Bruen’s precedent will still be difficult for lower courts to apply given the decision’s confused logic.
The specific case the justices considered during oral argument Tuesday involved one Zackey Rahimi, a Texan with a history of assaulting his girlfriend, threatening people with guns, and even firing shots into the air after a friend’s credit card was declined at a Whataburger. A state court in Texas that issued a protective order keeping Rahimi away from his girlfriend triggered a federal law that prohibits people subject to domestic violence protective orders from possessing firearms.
All that sounds entirely sensible in a world where shootings are tragically common. It’s hard to imagine any reasonable person thinking that it would be a good idea to let someone in Rahimi’s situation keep his guns.
Yet common sense did not deter the lower federal courts in Rahimi’s case from ruling the federal law unconstitutional under the Second Amendment. Those courts were interpreting the Supreme Court’s Bruen decision, which held that gun laws must match the “historical tradition” of earlier gun restrictions in U.S. history.
Faced with this extremely amorphous pseudo-test, the lower courts said that there was no historical tradition of taking guns from domestic abusers. On that basis, they held that Rahimi could not be stripped of his Second Amendment right to bear arms.
Bruen ranged widely over historical evidence dating from the 14th to the 20th century in the course of overturning New York’s concealed carry ordinance. Bruen left it to the lower courts to review the constitutionality of essentially 100% of all existing gun laws without further guidance on what it could mean to match “the historical tradition.”
It’s worth noting that the Bruen did not tell the lower courts to follow the original meaning of the Second Amendment, despite the fact that the case’s author, Justice Clarence Thomas, is supposed to be an originalist. The reason, no doubt, is that the original meaning of the Second Amendment is clearly spelled out in the amendment’s own text, which explains that the purpose of the amendment is to ensure the existence of a “well regulated militia.”
The framers, always worried about their fragile republic devolving into an autocratic empire as Rome had done, wanted to make sure that the states would maintain citizen militias of the kind that fought the Revolutionary War. They didn’t dream of a world where husbands frequently killed their wives with handguns, much less one where assault rifles are regularly used to murder en masse, as occurred most recently in Maine.
Unwilling or unable to rely on the amendment’s original meaning, Thomas and the conservative majority instead concocted the novel legal category of “historical tradition.” The trouble is that no one, lawyer or otherwise, knows what it means to decide cases by historical tradition.
When evaluating current gun laws, many lower courts have simply looked to the past to see if identical gun laws can be found. Unsurprisingly, such parallels rarely exist. Protective orders are a product of our contemporary concern for vulnerable domestic partners. Even the legal category of domestic violence is relatively new.
To resolve the case with any modicum of protection for the public, the justices will have to create some sort of category of people whose gun rights are not absolutely protected. The leading candidate in the oral argument was the category of “dangerous” people — people who may not have been convicted of a crime, but are nonetheless deemed by the court system to pose a probable danger.
But this is a stop-gap measure, one that will now put lower courts in the position of having to guess what other categories might exist and how they can be derived from historical analogies rooted in “tradition.”
Until the Bruen decision, courts treated Second Amendment rights like other constitutional rights, weighing them against the government’s interest in essential goals like public safety. With its loose historical tradition test, the court in Bruen rejected that familiar framework. The Rahimi case shows what happens when the justices throw the norms of legal reasoning to the wind: The courts make poor decisions that leave us less safe.
The Bruen precedent is bad law, bad logic and bad history. It needs to be overturned — not “applied” in subsequent cases that produce unsound constitutional doctrine and unsafe homes.
