Vladeck: The 5th Circuit’s Rahimi Decision Reveals Two Problems With Bruen By: Grace Stevens


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…Rahimi exposes two different problems with Bruen: The first problem is that its command to courts to measure contemporary gun regulations by the yardstick of “historical analogues” yields a profoundly subjective test that will lead principled judges acting reasonably to reach diametrically opposed conclusions about the same laws. As Rahimi makes clear, whether a historical example is sufficiently “analogous” will almost always be in the eye of the beholder.

After all, if “dangerousness” laws aren’t a sufficient analogy for § 922(g)(8), which exists entirely because of the danger those subject to DV-related restraining orders pose to their intimate partner, what could be other than a DV-specific restriction from 1791 (or 1868)? To illustrate the point, there have been, according to Professor Jake Charles, seven district court decisions since Bruen about § 922(n), which bars those under felony indictment from new gun acquisitions. Those seven courts have divided 4-3, largely by disagreeing about the relevance of the claimed historical analogies.

The second problem is that, even if it were possible to articulate a more objective way of identifying historical analogues, this is just no way to ask courts to interpret the Constitution. American society in 1791, and even in 1868, did not recognize domestic violence as the standalone moral and legal scourge that we understand it to be today (the Nineteenth Amendment, guaranteeing women the right to vote, was not ratified until 1920). …

And the measure of when Second Amendment rights can be infringed ought not to depend upon the persuasiveness to individual judges of forced (and inevitably flawed) analogies to a time in American history in which people lived radically different lives—and in which, among other things, white men held a monopoly over government offices; and the technology was such that a single individual would have been hard-pressed to use a firearm to kill dozens of others in a single shooting. This may help to explain Justice Kavanaugh’s separate concurring opinion in Bruen, which Chief Justice Roberts joined, which tried to articulate limits to the majority’s analysis. But at least thus far, those limits have proven … elusive.

Simply put, the more that lower courts read Bruen to yield a practical absolutism to the Second Amendment by resisting what sure appear to be apt analogies, the more it is incumbent upon the Supreme Court to either confirm that that’s what the six-Justice majority intended, or to clarify that, to the contrary, governments may reasonably regulate firearms in contexts in which they have especially persuasive justifications for doing so, even if no similar justifications existed at some random prior point in American history.

— Steve Vladeck in Bruen’s Increasingly Troubling Aftermath