{"id":3125,"date":"2024-07-22T12:00:06","date_gmt":"2024-07-22T16:00:06","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3125"},"modified":"2025-12-20T15:11:24","modified_gmt":"2025-12-20T19:11:24","slug":"much-ado-about-nothing-rahimi-reinforces-bruen-and-heller-mark-w-smith","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/much-ado-about-nothing-rahimi-reinforces-bruen-and-heller-mark-w-smith\/","title":{"rendered":"Much Ado About Nothing: Rahimi Reinforces Bruen and Heller – Mark W. Smith"},"content":{"rendered":"\n
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Much Ado About Nothing: Rahimi  <\/em>Reinforces Bruen<\/em>  and Heller<\/em><\/h2>\n\n\n\n

Mark W. Smith*<\/a><\/h3>\n\n\n\n

On June 21, 2024, the Supreme Court issued its much-anticipated decision in United States v. Rahimi<\/em>.[1]<\/a> In that case, the Fifth Circuit had declared that a federal criminal statute, 18 U.S.C. \u00a7 922(g)(8), which prohibits persons subject to domestic violence restraining orders from possessing firearms, violated the Second Amendment. From the day that the Supreme Court granted certiorari, Rahimi<\/em> was the talk of the town among advocates and opponents of the Second Amendment.[2]<\/a><\/p>\n\n\n\n

Zackey Rahimi was a violent young man who had attacked his ex-girlfriend, shot up public places, fired at vehicles, and possessed firearms in violation of the state restraining order that his ex-girlfriend had obtained against him, which he did not contest. The Fifth Circuit held that under the historical methodology set forth just two years earlier in New York State Rifle & Pistol Ass\u2019n v. Bruen<\/em>,[3]<\/a> there was no historical tradition of disarming individuals subject to such restraining orders. Would the Supreme Court, in this hard case, be forced to walk back or water down Bruen<\/em>\u2019s analytical framework?<\/p>\n\n\n\n

Some had hoped that Rahimi<\/em> would be the death knell for Bruen<\/em> and called for the latter to be overruled.[4]<\/a> But, as Mark Twain once said, responding from London to news printed in American newspapers, \u201cthe reports of my death are greatly exaggerated.\u201d[5]<\/a> As it turned out, predictions of Bruen<\/em>\u2019s impending demise were also greatly exaggerated. Far from watering down Bruen,<\/em> all the Court\u2019s writings in Rahimi<\/em>\u2014even the concurrences and the dissent\u2014firmly cemented Bruen<\/em>\u2019s approach as providing the governing framework for deciding Second Amendment cases, even as the majority narrowly held that \u201c[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.\u201d[6]<\/a><\/p>\n\n\n\n

I. Rahimi<\/em> Reiterated, and Relied on, The Bruen<\/em> Framework<\/h3>\n\n\n\n

Bruen <\/em>explicitly relied and elaborated on the method of constitutional analysis that District of Columbia v. Heller<\/em>[7]<\/a> employed in Second Amendment cases. It rejected the tiers of scrutiny and any other form of \u201cinterest-balancing\u201d test that occasions judicial inquiry into whether the government has a sufficient reason for infringing that constitutional right. Instead, following Heller<\/em>, Bruen <\/em>clarified that the appropriate approach in a Second Amendment case centers on \u201cconstitutional text and history.\u201d[8]<\/a> Bruen<\/em> began with the plain text of the Second Amendment and went on to consider when our historical tradition of firearm regulation might allow some limitation on the right protected by the plain text. Rahimi<\/em> followed the approach outlined in Bruen<\/em>.<\/p>\n\n\n\n

II. The Plain Text of the Second Amendment Protects Mr. Rahimi\u2019s Conduct<\/h3>\n\n\n\n

The Second Amendment declares that \u201cthe right of the people to keep and bear Arms, shall not be infringed.\u201d[9]<\/a> If the plain text of the Second Amendment \u201ccovers an individual\u2019s conduct,\u201d then that conduct is \u201cpresumptively protected\u201d by the Constitution.[10]<\/a> A regulation infringing on that conduct cannot stand absent a showing that it \u201cis consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d[11]<\/a> The burden is on the government, not the individual, to show the existence, and then the fit, of that historical tradition.[12]<\/a><\/p>\n\n\n\n

Mr. Rahimi\u2019s conduct indisputably fell within the plain text of the Second Amendment\u2019s protection of the right of \u201cthe people\u201d to \u201ckeep\u201d and \u201cbear\u201d \u201cArms,\u201d and the Court disposed of this threshold issue quickly. Mr. Rahimi is part of \u201cthe people,\u201d a term that \u201cunambiguously refers to all members of the political community, not an unspecified subset.\u201d[13]<\/a> He possessed a rifle and a pistol, which are \u201cArms\u201d as Heller <\/em>understood that term. Echoing Heller<\/em> and Bruen<\/em>, the Court affirmed that the term \u201cArms\u201d in the Second Amendment \u201cextends prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence\u201d at the Founding, noting in particular the error of applying the term \u201conly to muskets and sabers.\u201d[14]<\/a> Because the Constitution is not \u201ca law trapped in amber\u201d[15]<\/a> but \u201cframed for ages to come,\u201d[16]<\/a> its enduring text applies to modern circumstances\u2014even those that the Framers could not have foreseen. Just as the First Amendment protects speech on the internet,[17]<\/a> and the Fourth Amendment protects against tracking devices placed on one\u2019s car without a warrant,[18]<\/a> the Second Amendment protects the right to keep and bear modern arms.<\/p>\n\n\n\n

The federal statute under which Mr. Rahimi pleaded guilty, 18 U.S.C. \u00a7 922(g)(8), barred him from possessing (that is, \u201ckeeping\u201d) the pistol and the rifle found by law enforcement when they searched his residence.<\/p>\n\n\n\n

Thus, Mr. Rahimi\u2019s conduct fell within the plain text of the Second Amendment and was of the kind that \u201cthe Constitution presumptively protects.\u201d[19]<\/a><\/p>\n\n\n\n

The Supreme Court in Rahimi<\/em> faithfully described and applied the methodology that Bruen <\/em>requires in a Second Amendment case, \u201cfollowing exactly the path\u201d that Bruen <\/em>had laid out.[20]<\/a> The Rahimi <\/em>opinion was joined by eight justices. Only Justice Thomas dissented, and he too believed that the Bruen<\/em> framework governed.[21]<\/a> He simply disagreed whether the historical analogues mustered by the Government were sufficiently similar to \u00a7 922(g)(8) to form a historical tradition that justified upholding that statute.[22]<\/a><\/p>\n\n\n\n

III. The Court Finds that the Nation\u2019s Historical Tradition of Firearm Regulation Supports Disarming Mr. Rahimi<\/h3>\n\n\n\n

The Court turned next, per Bruen<\/em>\u2019s command, to analyze whether the Government had shown that the restriction on Mr. Rahimi\u2019s right to keep and bear arms is \u201cconsistent with the Nation\u2019s historical tradition of firearm regulation.\u201d[23]<\/a> The Bruen <\/em>Court had found no need to \u201cprovide an exhaustive survey\u201d of all the factors along which such regulatory consistency with tradition was to be measured, but it found Heller<\/em> and McDonald <\/em>to require \u201cat least\u201d that the government show in the Nation\u2019s historical tradition support for \u201chow and why the regulations burden a law-abiding citizen\u2019s right to armed self-defense.\u201d[24]<\/a> In making the determination regarding consistency with tradition, the Court explained, any court \u201cmust ascertain whether the new law is \u2018relevantly similar\u2019 to laws that our tradition is understood to permit, \u2018apply[ing] faithfully the balance struck by the Founding generation to modern cir\u00adcumstances.\u201d[25]<\/a> Any doubt that regulatory operation (how) and purpose (why) were both \u201c\u2018central\u2019 considerations when engaging in an analogical inquiry\u201d[26]<\/a> was swept away by Rahimi<\/em>\u2019s re-exposition of Bruen<\/em>\u2019s methodological command:<\/p>\n\n\n\n

Why and how the regulation burdens the right are cen\u00adtral to this inquiry. For example, if laws at the Founding regulated firearm use to address particular prob\u00adlems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a law reg\u00adulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an ex\u00adtent beyond what was done at the founding. And when a challenged regulation does not precisely match its histori\u00adcal precursors, \u201cit still may be analogous enough to pass constitutional muster.\u201d[27]<\/a><\/p>\n\n\n\n

The Rahimi<\/em> Court found that the Government had identified two kinds of historical laws sufficient to establish a tradition of disarming those found to present \u201ca clear threat of physical violence to another.\u201d[28]<\/a> First, the Court cited surety laws, which were \u201c[w]ell entrenched in the common law\u201d\u2014and therefore widespread\u2014as a form of \u201cpreventive justice.\u201d[29]<\/a> These laws allowed a magistrate to require individuals suspected of future misbehavior to post a bond. The surety mechanism could be \u201cinvoked to prevent all forms of violence,\u201d including \u201cthe misuse of firearms.\u201d[30]<\/a> An individual who failed to post the bond would be jailed, while one who posted the bond and violated its terms would forfeit it.[31]<\/a><\/p>\n\n\n\n

The Court likewise found historical support in criminal \u201cgoing armed\u201d laws, often included within the laws governing affrays.[32]<\/a> These prohibited \u201criding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land\u201d[33]<\/a> and were adopted in American law either by inclusion within the incorporation of the common law or by specific legislative enactment.[34]<\/a><\/p>\n\n\n\n

The Court concluded that \u00a7 922(g)(8) \u201cfits neatly within\u201d the well-established tradition represented by surety and affray laws, and thus upheld the statute against Mr. Rahimi\u2019s facial challenge.[35]<\/a><\/p>\n\n\n\n

IV. Justice Thomas Dissents on a Narrow Point of Analogical Parity<\/h3>\n\n\n\n

Justice Thomas agreed with the majority on much of its opinion. He dissented only on the narrow, far-downstream portion of the majority\u2019s decision that held the operation <\/em>(i.e., the \u201chow\u201d) of the surety and affray laws to be sufficiently similar to that of \u00a7 922(g)(8) to take Mr. Rahimi\u2019s conduct \u201coutside the Second Amendment\u2019s unqualified command.\u201d[36]<\/a> Justice Thomas found that while the affray laws regulated public conduct, \u00a7 922(g)(8) criminalized a prohibited person\u2019s simple possession of a firearm within his home.[37]<\/a> The cited surety laws, he believed, did not historically operate to disarm the individual but only averted the \u201cthreat of future interpersonal violence\u201d by requiring the posting of a monetary bond that would be forfeited if the accused breached the peace.[38]<\/a> Because the tradition represented by the surety and affray laws employed means narrower than \u00a7 922(g)(8), Justice Thomas dissented.<\/p>\n\n\n\n

V. The Anti-Second-Amendment Spin on Rahimi<\/em> Has Begun<\/h3>\n\n\n\n

Many antagonists of the Second Amendment have begun the spin cycle on Rahimi<\/em>, casting the decision as a radical departure or an \u201cimportant first step away\u201d from Bruen<\/em>[39]<\/a> and calling it the Court\u2019s \u201cmad dash away from [Justice Thomas\u2019s] extremist position on the Second Amendment.\u201d[40]<\/a> Governmental litigants defending draconian firearms regulations have already made submissions to the lower courts that Rahimi <\/em>\u201cbolsters all of the State\u2019s arguments.\u201d[41]<\/a> That is not only outlandish but flatly false.<\/p>\n\n\n\n

All members of the Rahimi <\/em>Court\u2014even those who would have decided Bruen <\/em>differently\u2014believed themselves to be faithfully applying Bruen<\/em>.[42]<\/a> It is therefore a threshold mistake to pit Rahimi <\/em>against Bruen<\/em> instead of focusing on the vast common ground between the majority and the dissent in Rahimi<\/em>. All justices agreed on the absence<\/em> of any dispute about Mr. Rahimi\u2019s conduct falling well within the textual protection of the Second Amendment, the high historical provenance and pedigree of laws required to constitute a tradition, the tight logical nexus required between the historical laws and the identified tradition connecting them, and the irrelevance of interest balancing and so-called experts to the determination of whether a modern regulation transgresses the Second Amendment as a matter of law after Bruen<\/em>.<\/p>\n\n\n\n

As for the minor disagreement between the majority and the dissent on analogical parity, \u201creasonable minds can disagree,\u201d[43]<\/a> and very often do, on routine application of settled doctrine to different, challenging circumstances. This often occurs in the resolution of difficult constitutional applications when other rights are at stake, like the rights of free speech[44]<\/a> and freedom of religion[45]<\/a> in the First Amendment, the right against unreasonable searches or seizures in the Fourth Amendment,[46]<\/a> or the rights to due process[47]<\/a> and equal protection[48]<\/a> in the Fourteenth Amendment. Indeed, considering the fractures that the Court often experiences when applying long-settled doctrine to new situations, it is the unanimous agreement on Bruen<\/em>\u2019s doctrinal framework that is Rahimi<\/em>\u2019s most defining and remarkable feature. Rahimi <\/em>also sets a milestone in the life of the Second Amendment by moving its jurisprudence into the mundane. The landmark cases of Heller <\/em>and Bruen <\/em>established the doctrinal framework of the Second Amendment right and the way to analyze claims arising under it. Rahimi <\/em>has now begun the work of applying that framework to new cases\u2014a routine enterprise for the Court.[49]<\/a><\/p>\n\n\n\n

Read in this contextual light, the narrow disagreement between the majority and Justice Thomas regarding the implications to be drawn from the affray and surety laws is merely an intramural divergence on the application of analogical reasoning to a fact-bound case, on which reasonable minds and judges can\u2014and do\u2014disagree. But such disagreement is neither of precedential import nor an invitation for courts or litigants to consider Bruen <\/em>jettisoned or even rewritten. In this regard, Heller <\/em>and Rahimi <\/em>stand together: both are applications of the methodology that Bruen <\/em>explained in detail.<\/p>\n\n\n\n

VI. Rahimi\u2019s Tight Analogical Reasoning Demonstrates the Court is Fully Committed to the Heller<\/em>\/Bruen <\/em>Framework<\/h3>\n\n\n\n

Arguments that Rahimi<\/em>\u2019s reference to the \u201cprinciples that underpin our regulatory tradition\u201d[50]<\/a> loosens Bruen<\/em>\u2019s requirement of a historical tradition are likewise misguided. Rahimi <\/em>itself paid close attention to the operation and purpose of historical laws and did not extrapolate principles from them at a high level of generality. The Government invited the Court in Rahimi<\/em> to find that Heller<\/em> and Bruen<\/em> established an extraordinarily broad principle or historical tradition, namely, that \u201c[l]egislatures may disarm those who are not law-abiding, responsible citizens.\u201d[51]<\/a> The Court rightly, and summarily, rejected that attempt to find a historical tradition based on dicta in other cases rather than close historical analysis in the case before it. Chief Justice Roberts wrote for the majority:<\/p>\n\n\n\n

[W]e reject the Government\u2019s contention that Rahimi may be disarmed simply because he is not \u201cresponsible.\u201d Brief for United States 6; see Tr. of Oral Arg. 8\u201311. \u201cResponsible\u201d is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller<\/em> and Bruen<\/em>, we used the term \u201cresponsible\u201d to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. [citations omitted] But those decisions did not define the term and said nothing about the status of citizens who were not \u201cresponsible.\u201d The question was simply not presented.<\/p>\n\n\n\n

Rahimi<\/em> was, therefore, a routine application of established methodology\u2014not the shifting of the doctrinal tide that opponents of Bruen <\/em>had desired. The path of the Second Amendment is now as perceptibly ordinary as that of any other constitutional right: the epochal establishment of substantive doctrine having occurred in Heller <\/em>and having been explicated in Bruen<\/em>, the Court applies that doctrine to different laws and circumstances. But no reading of the cases applying <\/em>doctrine should be held to be in tension with the cases establishing <\/em>it\u2014least of all when the Court applying doctrine in a case understands itself, as in Rahimi<\/em>, as doing so with utmost fidelity to its precedential commitments.<\/p>\n\n\n\n

VII. Takeaways for the Lower Courts<\/h3>\n\n\n\n

So, what does Rahimi<\/em> mean for the lower courts? As it turns out, precious little other than an affirmation of what they already knew\u2014or should have known\u2014after Bruen<\/em>. For any of the lower courts or judges thereof who wondered if Rahimi <\/em>might chip away at Bruen<\/em>, the unanimous doctrinal recommitment to text and historical tradition in Rahimi <\/em>shows that Bruen <\/em>is here to stay. Even the justices who dissented in Bruen <\/em>showed by fully joining the majority opinion in Rahimi<\/em> that they understand Bruen <\/em>to be the law of the land. And while they may write separately, as they did in Rahimi<\/em>, to express dissatisfaction with Bruen<\/em>, such collateral grumblings about precedent give the lower courts no more ability to diverge from controlling precedent than if those reservations had never been expressed. Whatever justices <\/em>of the Court may feel about certain precedents, and however they may express those feelings in concurrences, the lower courts are duty-bound to hew faithfully to the Court\u2019s precedential decisions.<\/p>\n\n\n\n

Rahimi <\/em>also shows that well-established laws are not themselves sufficient to establish whatever historical tradition the government believes is to be gleaned from them. Rather, the tradition allegedly evinced by the identified historical laws is itself<\/em> something that the government must satisfactorily show as a matter of law. Consider, for instance, the Government\u2019s contention in Rahimi <\/em>that the surety and affray laws demonstrated a tradition of restricting the right to keep and bear arms only to \u201cresponsible\u201d citizens.[52]<\/a> The Court unanimously <\/em>rejected this contention, noting the absence of evidence not only on efforts to disarm \u201cirresponsible\u201d people but also on what responsibility even means in the context of a right to self-defense.[53]<\/a> The Government could identify no guardrails on what amounted to a state-administered virtue test, which meant it proved far too much.<\/p>\n\n\n\n

Rahimi<\/em>, therefore, stresses a latent logical connection between history and tradition that had been implicit in Heller <\/em>and Bruen<\/em>: identifying a historical tradition requires both <\/em>identifying a well-established body of historical laws and<\/em> demonstrating the tight inferential fit between those laws and the tradition that they allegedly establish or prove.<\/p>\n\n\n\n

This need to identify a well-defined historical tradition that closely follows the cited historical analogues demonstrates the unconstitutionality of various governmental efforts to restrict citizens\u2019 right to keep and bear arms: default carriage bans in places of public accommodation,[54]<\/a> long lists of gun-free zones or so-called sensitive places,[55]<\/a> lifetime possession bans on those convicted of white-collar crimes,[56]<\/a> and licensing schemes that condition one\u2019s exercise of the right to bear arms on one\u2019s ability to prove to government officials one\u2019s loosely defined soundness of \u201cmoral character.\u201d[57]<\/a> While they may weave together a few laws here and a few cases there, governments so far have been unable to point to any<\/em> established traditions from the Founding of restricting the right of armed self-defense in these ways. This threshold failure to identify any such body of laws from the Founding, let alone to extract from it a logically sound tradition, forecloses any governmental reliance on Rahimi<\/em>, which concerned the analogical fit of a recognized and bona fide<\/em> tradition. Stated differently, Rahimi <\/em>has no effect on any case in which the government has not already carried the weighty burden of establishing a relevant historical tradition of firearms regulation\u2014a burden it has decisively failed to carry in virtually every case currently being litigated.<\/p>\n\n\n\n

Rahimi <\/em>also relied on briefing and argument to decide the case, exemplifying for the lower courts the exercise of legal research and reasoning without the need for expert reports from historians.[58]<\/a> Indeed, the Court explicitly doubled down on Bruen<\/em>\u2019s statement that the process of analogical reasoning\u2014a form of \u201c[d]iscerning and developing the law\u201d\u2014remains, as it has always been, \u201ca commonplace task for any lawyer or judge.\u201d[59]<\/a> The Court showed by example that courts can\u2014and ought to\u2014resolve matters of law through competent consultation of such sources as \u201cprecedents, historical laws, commentaries on laws, law reviews, the Congressional Globe, and a handful of histories about legal topics.\u201d[60]<\/a><\/p>\n\n\n\n

Another takeaway from Rahimi<\/em>, as Justice Kavanaugh noted in his concurrence, involves alleged historical analogues that the Government pressed below in Rahimi<\/em> but abandoned before the Court. Justice Kavanaugh reasoned that the lower courts should not rely \u201con the history that the Constitution left behind.\u201d[61]<\/a> This means that historical laws built on racial, ethnic, religious, or other forms of bigotry that the American people have rejected through superseding constitutional developments must be rejected as inconsistent with our constitutional commitments. When the American people incorporated the Bill of Rights against the States in 1868 and thereby extended to the newly liberated African Americans the full promise of liberty, they freed the Second Amendment\u2014and others\u2014from the shackles of slavery and racial prejudice. It is a grievous historical\u2014indeed, moral\u2014error for governments to attempt to redline constitutional rights with those portions of our history that we have overcome and rightly left behind.<\/p>\n\n\n\n

And, finally, some lower courts have already begun to recognize the narrowness of Rahimi<\/em>\u2019s holding and its limited direct applicability to pending Second Amendment litigation. For example, the Eighth Circuit\u2019s recent decision in Worth v. Jacobson<\/em> correctly applied Bruen<\/em>\u2019s framework and held unconstitutional a Minnesota statute restricting 18-to-20-year-olds\u2019 right to bear arms.[62]<\/a>  The court noted that Rahimi<\/em> had little to say about the issue in Worth<\/em>, which did not involve clear and adjudicated physical threats of the kind that Mr. Rahimi posed to others.[63]<\/a>  Rather, the Eighth Circuit rightly recognized that Rahimi<\/em>\u2019s affirmation and application of Bruen<\/em>\u2019s framework all the more required it to closely follow that framework in analyzing the specific statute before it.[64]<\/a><\/p>\n\n\n\n

VIII. The Dogs That Did Not Bark<\/h3>\n\n\n\n

Far from initiating a wholesale retreat from Bruen<\/em>, the significance of Rahimi<\/em> is perhaps best understood by what it did not<\/em> do:<\/p>\n\n\n\n

    \n
  1. It did not announce any broad new principles. Instead, it applied Bruen<\/em> faithfully, and its holdings were narrow in scope and limited in applicability. The Court held only that individuals who have been formally adjudicated by a court \u201cto pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.\u201d[65]<\/a><\/li>\n\n\n\n
  2. All nine justices believed it proper to apply Bruen<\/em>\u2019s methodology in this case, and none<\/em> claimed that Rahmi <\/em>should have been decided under tiers of scrutiny or interest balancing tests.<\/li>\n\n\n\n
  3. All nine justices rejected the Government\u2019s overbroad assertion that all persons not governmentally deemed \u201cresponsible\u201d may be disarmed.<\/li>\n\n\n\n
  4. So-called expert testimony is neither necessary nor helpful to deciding a case using Bruen<\/em>\u2019s historical methodology. The text and historical context of a law provide the best evidence of its meaning.<\/li>\n\n\n\n
  5. The Court did not address whether the Founding era (1791) or the time of the Fourteenth Amendment\u2019s ratification (1868) is the relevant period for determining the meaning of the Second Amendment and the rest of the Bill of Rights (although it relied principally on authorities from the Founding and the early Republic).[66]<\/a><\/li>\n\n\n\n
  6. Historical laws that are racist or otherwise discriminatory against ethnic, political, or religious minorities cannot be relied on by the government to disarm the people or any subset thereof.<\/li>\n\n\n\n
  7. Even lawless individuals like Mr. Rahimi remain part of \u201cthe people\u201d and possess Second Amendment rights on the plain-text level.<\/li>\n\n\n\n
  8. The Court announced no change to the methodology that it outlined in Bruen.<\/em><\/li>\n<\/ol>\n\n\n\n

    Conclusion<\/h3>\n\n\n\n

    The Supreme Court\u2019s decision in Rahimi<\/em>, while substantively routine, is momentous in a different sense: it is a harbinger of the doctrinal steadiness and reinforcement that, until very recently, the courts have uniquely denied the Second Amendment. Rahimi<\/em>, then, is pathbreaking because it is pedestrian\u2014a sign that the Second Amendment, long the \u201cconstitutional orphan\u201d of the Court\u2019s jurisprudence,[67]<\/a> has been welcomed at last into the constitutional family as an equal member.<\/p>\n\n\n\n

    *<\/a> Mark W. Smith is a Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, Oxford University and a Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law. He hosts the Four Boxes Diner YouTube Channel (youtube.com\/TheFourBoxesDiner), which addresses Second Amendment scholarship, history and issues, and whose educational videos have been viewed over 35 million times. His scholarship has been cited by federal courts and by attorneys before the United States Supreme Court in New York State Rifle & Pistol Ass\u2019n v. Bruen<\/em> and in United States v. Rahimi<\/em>. He is a graduate of the NYU School of Law.<\/p>\n\n\n\n

    [1]<\/a> 144 S. Ct. 1889 (2024).<\/p>\n\n\n\n

    [2]<\/a> See, e.g.<\/em>, Madiba Dennie, Originalism Is Going to Get Women Killed<\/em>, The Atlantic, Feb. 9, 2023.<\/p>\n\n\n\n

    [3]<\/a> 597 U.S. 1 (2022).<\/p>\n\n\n\n

    [4]<\/a> See, e.g.<\/em>, Brief of Global Action on Gun Violence, et al., as Amicus Curiae, United States v. Rahimi, No. 22-915 (U.S. Aug. 21, 2023); Brief of Professor Mary Anne Franks as Amicus Curiae, United States v. Rahimi, No. 22-915 (U.S. Aug. 21, 2023).<\/p>\n\n\n\n

    [5]<\/a> Several versions of Twain\u2019s quip are examined in Quote Origin: Reports of My Death Are Greatly Exaggerated<\/em>, The Quote Investigator, Jun. 7, 2024, quoteinvestigator.com\/2024\/06\/07\/report-death [perma.cc\/62NK-VGBV].<\/p>\n\n\n\n

    [6]<\/a> Rahimi<\/em>, 144 S. Ct. at 1903.<\/p>\n\n\n\n

    [7]<\/a> 554 U.S. 570 (2008).<\/p>\n\n\n\n

    [8]<\/a> Bruen<\/em>, 597 U.S. at 22.<\/p>\n\n\n\n

    [9]<\/a> U.S. Const. amend. II.<\/p>\n\n\n\n

    [10]<\/a> Bruen<\/em>, 597 U.S. at 17.<\/p>\n\n\n\n

    [11]<\/a> Id.<\/em><\/p>\n\n\n\n

    [12]<\/a> See id. <\/em>at 33\u201334 (\u201c[T]he burden falls on respondents to show that New York\u2019s proper-cause requirement is consistent with this Nation\u2019s historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners\u2019 proposed course of conduct.\u201d).<\/p>\n\n\n\n

    [13]<\/a> Heller<\/em>, 554 U.S. at 578.<\/p>\n\n\n\n

    [14]<\/a> Rahimi<\/em>, 144 S. Ct. at 1897\u201398.<\/p>\n\n\n\n

    [15]<\/a> Id.<\/em> at 1897.<\/p>\n\n\n\n

    [16]<\/a> Cohens v. Virginia, 19 U.S. 264, 387 (1821).<\/p>\n\n\n\n

    [17]<\/a> Reno v. Am. C.L. Union, 521 U.S. 844 (1997).<\/p>\n\n\n\n

    [18]<\/a> United States v. Jones, 565 U.S. 400 (2012).<\/p>\n\n\n\n

    [19]<\/a> Bruen<\/em>, 597 U.S. at 17.<\/p>\n\n\n\n

    [20]<\/a> Rahimi<\/em>, 144 S. Ct. at 1910 (Gorsuch, J., concurring).<\/p>\n\n\n\n

    [21]<\/a> Id.<\/em> at 1930 (Thomas, J., dissenting).<\/p>\n\n\n\n

    [22]<\/a> Id. <\/em>at 1941\u201343.<\/p>\n\n\n\n

    [23]<\/a> Rahimi<\/em>, 144 S. Ct. at 1898 (quoting Bruen<\/em>, 597 U.S. at 24).<\/p>\n\n\n\n

    [24]<\/a> Bruen<\/em>, 597 U.S. at 29.<\/p>\n\n\n\n

    [25]<\/a> Rahimi<\/em>, 144 S. Ct. at 1898 (quoting Bruen<\/em>, 597 U.S. at 28 n.7, 29).<\/p>\n\n\n\n

    [26]<\/a> Bruen<\/em>, 597 U.S. at 29.<\/p>\n\n\n\n

    [27]<\/a> Rahimi<\/em>, 144 S. Ct. at 1898 (quoting Bruen<\/em>, 597 U.S. at 30).<\/p>\n\n\n\n

    [28]<\/a> Id.<\/em> at 1901.<\/p>\n\n\n\n

    [29]<\/a> Id. <\/em>at 1899\u20131900.<\/p>\n\n\n\n

    [30]<\/a> Id. <\/em>at 1900.<\/p>\n\n\n\n

    [31]<\/a> Id.<\/em><\/p>\n\n\n\n

    [32]<\/a> Id. <\/em>at 1901.<\/p>\n\n\n\n

    [33]<\/a> Id. <\/em>(quoting 4 W. Blackstone, Commentaries on the Laws of England 149 (10th ed. 1787)).<\/p>\n\n\n\n

    [34]<\/a> Rahimi<\/em>, 144 S. Ct. at 1901.<\/p>\n\n\n\n

    [35]<\/a> Id.<\/em><\/p>\n\n\n\n

    [36]<\/a> Bruen<\/em>, 597 U.S. at 24 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 (1961)).<\/p>\n\n\n\n

    [37]<\/a> Rahimi<\/em>, 144 S. Ct. at 1942\u201343 (Thomas, J., dissenting).<\/p>\n\n\n\n

    [38]<\/a> Id. <\/em>at 1938\u201342.<\/p>\n\n\n\n

    [39]<\/a> Dana Bazelon, The Supreme Court Hasn\u2019t Actually Fixed the Mess Clarence Thomas Created on Guns<\/em>, Slate, Jun. 26, 2024, slate.com\/news-and-politics\/2024\/06\/supreme-court-scotus-thomas-barrett-gun-control-rahimi.html [perma.cc\/EKC4-2X5K].<\/p>\n\n\n\n

    [40]<\/a> Mark Joseph Stern, The Supreme Court Walks Back Clarence Thomas\u2019 Guns Extremism<\/em>, Slate, Jun. 21, 2024, slate.com\/news-and-politics\/2024\/06\/supreme-court-clarence-thomas-guns-extremism-rahimi-bruen.html [perma.cc\/YB6R-ZHMX].<\/p>\n\n\n\n

    [41]<\/a> Letter from the Deputy Attorney General of the State of New Jersey, Cheeseman v. Platkin, No. 22-cv-04360 (D.N.J. filed Jun. 30, 2022), ECF No. 79.<\/p>\n\n\n\n

    [42]<\/a> Rahimi<\/em>, 144 S. Ct. at 1910 (Gorsuch, J., concurring) (\u201cThe Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen<\/em>.\u201d); id.<\/em> at 1926 (Jackson, J., concurring) (\u201cBruen<\/em> is now binding law. Today\u2019s decision fairly applies that precedent, so I join the opinion in full.\u201d). Indeed, academic commentators who firmly reject originalism have written to fault the Court for rallying behind Bruen <\/em>and originalism in Rahimi<\/em>. See, e.g.<\/em>, Erwin Chemerinsky, Once Again, Originalism\u2019s Hollow Core Is Revealed<\/em>, The Atlantic, Jun. 25, 2024, theatlantic.com\/ideas\/archive\/2024\/06\/failure-originalism-supreme-court\/678783\/ [perma.cc\/9YLR-UL8A].<\/p>\n\n\n\n

    [43]<\/a> Rahimi<\/em>, 144 S. Ct. at 1909 (Gorsuch, J., concurring).<\/p>\n\n\n\n

    [44]<\/a> See, e.g.<\/em>, 303 Creative v. Elenis, 600 U.S. 570 (2023) (holding, 6\u20133, that portions of the Colorado Anti-Discrimination Act requiring a website designer to create websites expressing messages with which she disagrees violate the First Amendment).<\/p>\n\n\n\n

    [45]<\/a> See, e.g.<\/em>, Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022) (holding, 6\u20133, that a public school violates the Free Exercise Clause and the Free Speech Clause of the First Amendment when it suspends an employee for privately initiating prayer that others are free to join or forego without consequence).<\/p>\n\n\n\n

    [46]<\/a> See, e.g.<\/em>, Carpenter v. United States, 585 U.S. 296 (2018) (holding, 5\u20134, that a government violates the Fourth Amendment when it warrantlessly obtains a person\u2019s cell-phone location history from third-party data repositories to trace the person\u2019s movements).<\/p>\n\n\n\n

    [47]<\/a> See, e.g.<\/em>, Kahler v. Kansas, 589 U.S. 271 (2020) (holding, 6\u20133, that the Due Process Clause of the Fourteenth Amendment does not require a state to adopt an insanity test to determine whether the defendant could discern that the crime charged was a moral wrong).<\/p>\n\n\n\n

    [48]<\/a> See, e.g.<\/em>, Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College, 600 U.S. 181 (2023) (holding,   6\u20133, that the Equal Protection Clause requires all public universities\u2014as Title VI of the Civil Rights Act requires all private universities accepting federal funds\u2014to administer an admissions program that does not stereotype or penalize an applicant on the basis of race).<\/p>\n\n\n\n

    [49]<\/a> See, e.g.<\/em>, Rahimi<\/em>, 144 S. Ct. at 1903\u201304 (Sotomayor, J., joined by Kagan, J., concurring) (\u201cToday, the Court applies its decision in Bruen<\/em> for the first time.\u201d).<\/p>\n\n\n\n

    [50]<\/a> Rahimi<\/em>, 144 S. Ct. at 1898.<\/p>\n\n\n\n

    [51]<\/a> Brief for the United States at 7, United States v. Rahimi, No. 22-915 (Aug. 14, 2023).<\/p>\n\n\n\n

    [52]<\/a> Id. <\/em>at 10\u201327.<\/p>\n\n\n\n

    [53]<\/a> Rahimi<\/em>, 144 S. Ct. at 1903.<\/p>\n\n\n\n

    [54]<\/a> See, e.g.<\/em>, Christian v. James, No. 22-2987 (2nd Cir. filed Nov. 23, 2022).<\/p>\n\n\n\n

    [55]<\/a> See, e.g.<\/em>, Koons v. Att\u2019y Gen. of N.J., No. 23-1900 (3rd Cir. filed May 17, 2023).<\/p>\n\n\n\n

    [56]<\/a> See, e.g.<\/em>, Range v. Garland, No. 21-2835 (3rd Cir. filed Sept. 30, 2021). After the Third Circuit, sitting en banc, held that 18 U.S.C. \u00a7 922(g)(1) violated the Second Amendment as applied to Mr. Range, 69 F.4th 96 (3rd Cir. 2023), the Solicitor General sought certiorari from the Supreme Court. On the last day of October Term 2024, the Court summarily granted certiorari, vacated the Third Circuit\u2019s judgment, and remanded the case for further consideration in light of its decision in Rahimi<\/em>. 2024 WL 3259661. It is a routine procedural practice for the Court to so remand cases that present questions even remotely related to those it has decided in a term. See generally<\/em> Aaron-Andrew P. Bruhl, The Supreme Court\u2019s Controversial GVRs\u2014and an Alternative<\/em>, 107 Mich. L. Rev 711 (2009).<\/p>\n\n\n\n

    [57]<\/a> See, e.g.<\/em>, Antonyuk v. James, No. 22-2908 (2nd Cir. filed Nov. 8, 2022). Like Range<\/em>, the Court summarily granted certiorari, vacated the judgment below, and remanded Antonyuk <\/em>for further consideration in light of Rahimi<\/em>. 2024 WL 3259671; see also supra<\/em>, note 55.<\/p>\n\n\n\n

    [58]<\/a> None of the Court\u2019s contemporary Second Amendment cases\u2014Heller<\/em>, McDonald v. Chicago, 561 U.S. 742 (2010), Caetano v. Massachusetts, 577 U.S. 411 (2016), Bruen<\/em> and Rahimi<\/em>\u2014relied on expert testimony about the Second Amendment or its related history. Indeed, the Court almost never takes notice of expert declarations or testimony on the text or history of a constitutional provision, choosing instead to rely on briefing, argument, and its own research.<\/p>\n\n\n\n

    [59]<\/a> Rahimi<\/em>, 144 S. Ct. at 1898 (quoting Bruen<\/em>, 597 U.S. at 28).<\/p>\n\n\n\n

    [60]<\/a> Stephen Halbrook, Second Amendment Roundup: Rahimi Preserves Bruen<\/em>, Reason, Jun. 26, 2024.<\/p>\n\n\n\n

    [61]<\/a> Rahimi<\/em>, 144 S. Ct. at 1915 (Kavanaugh, J., concurring).<\/p>\n\n\n\n

    [62]<\/a> No. 23-2248, 2024 WL 3419668 (8th Cir. July 16, 2024).<\/p>\n\n\n\n

    [63]<\/sup><\/a> Id.<\/em> at *10\u201311.<\/p>\n\n\n\n

    [64]<\/a> Id<\/em>. at *9.<\/p>\n\n\n\n

    [65]<\/a> Rahimi<\/em>, 144 S. Ct. at 1903.<\/p>\n\n\n\n

    [66]<\/a> The author believes\u2014and has written\u2014that the Supreme Court ultimately should and will find in the right case that the Founding period is the only relevant one for assessing the existence of a historical tradition of firearms regulations for the purpose of understanding the meaning of the Second Amendment. See<\/em> Mark W. Smith, Attention Originalists: The Second Amendment was adopted in 1791, not 1868<\/em>, 2023 Harv. J.L. & Pub. Pol\u2019y Per Curiam 31 (2023).<\/p>\n\n\n\n

    [67]<\/a> Silvester v. Becerra, 583 U.S. 1139, 1149 (Thomas, J., dissenting from denial of certiorari).<\/p>\n","protected":false},"excerpt":{"rendered":"

    Much Ado About Nothing: Rahimi  Reinforces Bruen  and Heller Mark W. Smith* On June 21, 2024, the Supreme Court issued its much-anticipated decision in United States v. Rahimi.[1] In that case, the Fifth Circuit had declared that a federal criminal statute, 18 U.S.C. \u00a7 922(g)(8), which prohibits persons subject to domestic violence restraining orders from possessing firearms, violated the Second Amendment. From the day that the Supreme Court granted certiorari, Rahimi was the talk of the […]<\/p>\n","protected":false},"author":147,"featured_media":1470,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[72],"tags":[13,77],"class_list":["post-3125","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-per-curiam","tag-constitutional-law","tag-second-amendment"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2012\/07\/cropped-HLS_JOPP_Logo-1.png","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSiL-Op","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3125","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/147"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3125"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3125\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media\/1470"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3125"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3125"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3125"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}