The Volokh Conspiracy
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Second Amendment Roundup: "Do as I Say, Not as You Ruled"
Merrick Garland tells Supreme Court to apply his new, vague test, not Bruen decision.
On November 7, the Supreme Court will hear oral argument in United States v. Rahimi. That's the case in which the Fifth Circuit unanimously held that 18 U.S.C. § 922(g)(8) violates the Second Amendment. Section 922(g)(8) is the federal statute that prohibits individuals who are subject to a state domestic violence restraining order (DVRO) from possessing any firearm. Under the federal law, they can be sent to prison for up to fifteen years if they do.
The Fifth Circuit faithfully applied the text and history methodology first deployed by the Supreme Court in District of Columbia v. Heller and then further prescribed in New York State Rifle & Pistol Ass'n v. Bruen, decided in 2022. The Fifth Circuit determined that the statute could not stand because the Government did not demonstrate that the statute's "restriction of the Second Amendment right fits within our Nation's historical tradition of firearm regulation," which is the Government's burden to prove under the express language of Bruen.
The Government submitted its reply brief to the Supreme Court on the merits on October 25. In that brief, Merrick Garland's Justice Department took an astonishing position: Bruen's methodology should essentially be ignored.
Bruen meticulously laid out detailed procedures and tests for evaluating whether a present-day statute comports with the Second Amendment. The first part of the inquiry is textual: "when the Second Amendment's plain text covers an individual's conduct," Bruen instructs, "the Constitution presumptively protects that conduct." The second part of the inquiry is historical: the presumption based on plain text may be overcome only if the Government can show through historical analogues that the firearm regulation is "consistent with the Nation's historical tradition of firearm regulation." Only then may a challenged regulation be upheld as constitutional, because it regulates conduct that falls outside the Second Amendment's "unqualified command."
Bruen outlines the methodology to implement that two-part approach in future cases (where the issue has not already been decided by the Court), and then applies that methodology to the concealed carry issues before it. "Interest balancing," such as levels of scrutiny, cannot be employed. Historical analogues to a challenged statute addressing a new societal problem must be "relevantly similar." For problems that have persisted since the Founding, the fit must be tighter—they must be "distinctly similar."
But any purported analogue must meet one of these two tests for similarity. In deciding whether the modern gun control laws in question are sufficiently similar, the Court emphasizes "at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense." The Court goes into significant detail about how to evaluate historical analogues.
How does the Government's brief try to get around these detailed methodologies? The technique is quite simple, if remarkably unconvincing. The Justice Department makes up its own test, at a very high level of generality, and asserts again and again that it is the rule endorsed by Bruen and Heller, when it is no such thing.
Under the first, "plain text" step of the Bruen methodology, the Rahimi case poses the question of who has the right to possess arms. The Second Amendment's text answers that question: "the right of the people to keep and bear arms, shall not be infringed." So, the right is possessed by the people, not some unspecified subset, and (as Heller held) the right is certainly not limited to militia members. Quoting an earlier decision by the Court, Heller defined "the people" as "persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
The Government's reply brief gives short shrift to this explicit definition in Heller, which is part of the first step of the Bruen methodology, and instead substitutes its own definition of who has the right to keep and bear arms. Citing Heller, the Government asserts that "Congress may disarm persons who are not 'law-abiding, responsible citizens.'." Indeed, nearly all of its reply brief is subsumed under the twin headings "Congress May Disarm Individuals Who Are Not Law-Abiding, Responsible Citizens" and "Section 922(g)(8) Disarms Persons Who Are Not Law-Abiding, Responsible Citizens."
But Heller never said that people who are not law-abiding, responsible citizens may be disarmed. The actual quote from Heller is that the Second Amendment "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." That quote does not purport to specify who has the constitutional right to keep and bear arms. Heller already did that when it defined "the people." And it certainly does not say when people who have that right may sometimes lose it.
To support its claim that limiting Second Amendment protection to "law-abiding, responsible people" is a "constitutional principle," the Government's brief asserts that "Bruen used the term 'law-abiding, responsible citizen' and its variants more than a dozen times." Five things are notable about that assertion.
First, the Rahimi case is the first time the Supreme Court has had occasion to consider what individuals, though remaining part of "the people," may be stripped of the right to arms under the Heller/Bruen "text and history" method of analysis. The Government's brief pretends that the Court has already decided that issue in Bruen. But Justice Alito, concurring in Bruen, correctly observed that "Our holding decides nothing about who may lawfully possess a firearm," and not a single member of the Court disagreed with him.
Second, as with the above quote from Heller, in none of those passages did the Court purport to be providing a definition of who has the right to keep and bear arms.
Third, the phrase "the people" also is used in the First and Fourth Amendments. This phrase should be given the same meaning across the Bill of Rights. Thus, if the Government were right, it would mean that individuals who are not law-abiding and responsible also lose those rights. That cannot possibly be correct.
Fourth, even if an individual is part of "the people" and presumptively has the right to arms, constitutional rights can sometimes be lost or restricted. For example, most would agree that physically violent felons may forfeit their Second Amendment rights, though they remain part of "the people." Indeed, firearm rights are often restored to individuals who have previously lost them. That is the case with § 922(g)(8) itself—an individual's right to arms is restored automatically on the expiration of the DVRO. It would make no sense to say that a person can move back and forth between either being in or out of the people in this way. Rather, a person remains part of "the people" at all times; whether the person's rights can be restricted is a matter of historical inquiry.
Fifth, the alleged "constitutional principle" that persons who are not "law-abiding, responsible citizens" may be disarmed is hopelessly vague and overbroad. Is someone not "law-abiding" because he or she has received one or more speeding tickets? Is an individual not "responsible" because of too much gambling? The essentially limitless and uncertain sweep of this "principle" suggests that for the Government it is not a bug but a feature—it allows them to disarm anyone at will.
Thus, by positing that the Court has already decided the very issue before it, the Government's brief tries to sidestep Bruen's methodology. Fortunately, the attempt is pretty transparent, and even if the Court rules to uphold § 922(g)(8), it seems unlikely that it will adopt the vague, overbroad, non-test pushed by the Justice Department.
