Today, the Supreme Court heard oral arguments in the case of United States v Rahimi. The case represents the biggest post-Bruen Second Amendment case that the Court has taken, and the consequences of the Court’s ruling could be significant. But based on the Justices’ questioning of the lawyers, it looks like several good things for gun owners will come out of the decision.
In the Rahimi case, the Court considers whether a federal law that bars those subject to certain domestic violence restraining orders from possessing firearms is constitutional under Bruen‘s history and tradition-focused test for Second Amendment challenges. A unanimous Fifth Circuit panel struck down the law. Similar cases challenging other prohibited person categories, like non-violent felons and cannabis users, are now pending before the Court, and the Court will have to decide whether to accept those cases for review as well.
If it does, 2ALC will be there.
As the Fifth Circuit explained in its Rahimi decision: “Bruen forecloses any . . . analysis [of salutary policy goals] in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted.”
As we have previously noted, hopefully, the upcoming SCOTUS ruling in Rahimi will settle some outstanding issues regarding exactly how the clarified Bruen test for evaluating the constitutionality of any gun control law should be applied. As they try to weaken Bruen’s methodology so more gun control laws can survive 2A review, many state lawyers have twisted the test to their advantage and some progressive judges have willingly bought into the ploy. Indeed, today’s questions from the Justices explored that topic on several occasions and from several perspectives. The government’s solicitor continuously pushed for allowing a higher “level of generality” when comparing modern-day restrictions to the “history and tradition” of firearm regulation — which would allow for a much more permissive standard to be applied and more bad laws to be upheld. In other words, the government wants the required historical analogy law that indicates the Founders would tolerate a modern law to be loosely applied so that almost any informal and localized policy or practice will satisfy Bruen’s history and tradition test.
The majority of Justices did not seem to be buying it. So we are hopeful that even if the Court upholds the constitutionality of the specific federal law being challenged in Rahimi, the ruling will be very narrow and will not change the Bruen methodology that applies in all 2A cases significantly.
“If modern gun control laws can be justified by what some folks ‘might have been’ thinking in and after 1791, then the import of Bruen is lost,” remarked 2ALC President & Senior Legal Counsel Chuck Michel. “If the government’s approach were adopted, it would relegate the Second Amendment to the status of a second-class right. The Second Amendment has been called “Liberty’s Teeth. Governments want to leave the Second Amendment toothless.”
We can’t let that happen. The Second Amendment Law Center is proud to have coordinated an amicus brief campaign in support of this case, and we are already gearing up in case SCOTUS takes another prohibited person test case. 2ALC is already engaged doing amicus briefs in cases across the county and stands ready to engage once this case is decided since it will most certainly impact how lower courts apply Bruen in all 2A cases of crucial importance nationally.
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