In June 2022, the Supreme Court issued the most extreme Second Amendment decision ever. At a time when the United States has more guns than people, New York State Rifle & Pistol Association v. Bruen is toppling gun safety laws like bowling pins. Now, less than two years later, the court will hear another gun case. U.S. v. Rahimi offers a chance to pull back from the extremism of its most recent ruling. Maybe, just maybe, the court’s conservatives want a do-over.
It was not until 2008 that the Supreme Court held that the Second Amendment protected an individual right to gun ownership for self-protection. In D.C. v. Heller, a 5–4 majority said that the amendment aimed to protect, above all, “hearth and home.” Claiming to follow “originalism,” it mangled the history. (It turns out, as a database set up by professors at conservative Brigham Young University ruefully concluded, that “bear arms” referred to military service, such as, say, in a “well regulated militia.” Oops!) In any case, despite its originalist ambitions, Heller made clear that strong gun laws were still allowed. In fact, in the decade after Heller was decided, courts overwhelmingly uphold gun laws—by one scholarly estimate, around 90 percent of the time.
Antonin Scalia wrote Heller. He was once asked the difference between him and Justice Clarence Thomas. “I am originalist,” he replied. “But I am not a nut.”
Of course, Thomas wrote the Bruen opinion. It is, indeed, nuts. Thomas essentially said that courts could not consider current public safety needs when assessing whether a gun law is constitutional. Firearms rules will stand only if the government can prove they align with gun laws from the 1700s or 1800s. Grab your muskets.
Predictably, this produced chaos in the courts. New York’s strong gun law, dating back to 1911, was struck down, and those of six other states fell soon as well. Hundreds of lawsuits were filed by gun rights advocates challenging new and existing laws, which had been upheld under the now-discarded Heller standard.
Results verged on satire. In upstate New York, for example, a federal judge considered the state’s new law, quickly enacted to replace the century-old statute that had been struck down. Two examples of colonial-era laws were a “mere trend,” the judge explained. For it to be a “tradition,” you needed three. At first he could find no “tradition” of laws banning guns at sleepaway summer camps—hence that was unconstitutional, though after mockery, he later pulled back.
Another federal judge, Carlton Reeve in Mississippi, wrote, “This Court is not a trained historian. The Justices of the Supreme Court, as distinguished as they may be, are not trained historians.… And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.” Eventually he ruled that the Second Amendment does not allow government to take guns away from a convicted felon.
All told, Bruen led to at least a dozen gun laws being struck down across the country so far, with hundreds of others facing challenges.
The most grotesque example came in, where else, Texas, where so much of the right-wing constitutional litigation originates. Zackey Rahimi went on a shooting spree in 2020 and 2021, firing his gun in several incidents in Arlington, Texas. While he was doing this, he was subject to a protective order due to domestic violence against his girlfriend. And there’s a federal law that prohibits people under such orders to own guns.
The Fifth Circuit Court of Appeals, seated in New Orleans and now the country’s most aggressively MAGA-fied, struck down the federal law. “Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” the opinion read. Back then, after all, there were no laws against domestic violence. It was a feature, not a bug.
The ruling was widely criticized, and when it was appealed to the Supreme Court, the justices took the case. That is noteworthy. Four justices must vote to hear an appeal. It took a decade after Heller before the court would even consider a major Second Amendment case, and now it is wading back into the controversy less than two years after Bruen. What gives?
Most likely the court will try to retreat from the vile implications of the Fifth Circuit’s Rahimi opinion.
The justices could say laws need only match the broad principles behind earlier rules, and do not need to be “dead ringers,” as the Bruen case rather unfortunately put it. There were laws in the 1600s and 1700s that barred dangerous individuals from owning guns, even if domestic abusers were not in that category until recently. That still gives an uncomfortably large role to the property-owning white men of the 1700s, a time when women could not vote.
The court might even rethink Thomas’s “history and tradition” test. Chief Justice John Roberts and Justice Brett Kavanaugh both voted for the majority opinion in Bruen. But they also wrote a concurring opinion, contradicting its reasoning—they said the reason the New York gun law in Bruen failed was that it was not “objective.” They could find it reasonable to take away guns from spouse abusers after a court hearing and join the three liberals to form a new majority on gun laws.
Or, of course, the supermajority could simply uphold Rahimi. That would be particularly galling—and deadly. As one brief in the case pointed out, “every month, on average, 70 women are shot and killed by an intimate partner.” The ramifications would extend beyond domestic violence. Gun rights would be by far the most expansively protected in the entire Constitution. Even the most sensible public safety laws might fall afoul of NRA lawsuits and right-wing judges claiming knowledge of colonial-era laws.
Certainly, the justices have noticed public approval of the court has collapsed to the lowest level ever recorded in public opinion polls. The day Bruen was decided, a public poll showed that only 8 percent of voters wanted gun laws loosened—the rest wanted them as is or strengthened. Already voters are in full revolt over the Dobbs decision that overturned Roe v. Wade. The Bruen case, issued just before Dobbs, was overshadowed by the explosive abortion case. If the supermajority redoubles the reactionary implications of its gun ruling, the public response could well be deadly to the court’s standing.