It's Not So Hard to Write an Opinion Following Bruen and Reversing in Rahimi

a contrary view to Josh's

Below, Josh argues that "an opinion reversing Rahimi will be tougher to write than most critics will admit" and also claims that "Rahimi was a faithful application of Bruen. Efforts to "clarify" Bruen are really an attempt to rewrite the precedent. I don't think anyone seriously doubts this premise."

With respect, I think that both of these claims are wrong, for reasons that Professor Robert Leider and I gave in our essay, The General Law Right to Bear Arms. An opinion that faithfully applies Bruen and reverses the Fifth Circuit in Rahimi is not hard to write. It has two major steps.

First, the Court will point out that Bruen called for a particular kind of originalist approach, one where the Constitution's "meaning is fixed according to the understandings of those who ratified it," but it "can, and must, apply to circumstances beyond those the Founders specifically anticipated." In particular, this approach calls for the judges to enforce historically-recognized principles about when the right to keep and bear arms can be regulated. This is what Bruen is referring to when it talks about lawyerly "analogical reasoning" which focuses on "how and why" past regulations burdened the right -- analogical reasoning that is "neither a regulatory straightjacket nor a regulatory blank check."

Second, the Court will likely conclude that one such historical principle -- as then-Judge Barrett has already argued in detail -- is that the government may forbid those who have been shown to be dangerous to keep and bear arms. What distinguishes this dangerousness principle from other examples of rights that might be thought dangerous or socially costly is the history of the right to bear arms itself, which is what Bruen says to look to.

Finally, such an opinion is especially easy to write because the Fifth Circuit sustained a facial challenge to Section 922(g)(8). Thus many harder questions -- what if the state court proceeding violates due process or is otherwise shoddy? what if the deprivation is not based on a dangerousness finding? etc. -- can all be responsibly postponed to future cases. I don't think this opinion will be hard to write, nor will it require rewriting any part of Bruen.

[To be sure, there are decent arguments that Rahimi's counsel could have made better, and there are likely to be much harder cases coming soon after Rahimi. For instance, Rahimi's counsel could have done more to try to prove that the dangerousness principle only applies to bearing arms, not keeping arms, or perhaps that it is only an incident to the war power and not the commerce power. But I don't think the way the case was argued will make it hard for the Court to conclude otherwise. And I agree with what Josh wrote earlier, that the application of the dangerousness principle to other federal statutes, such as the felon-in-possession ban, is likely to produce much more litigation and soon. Indeed, I would not be surprised if the Court's likely reversal in Rahimi is followed at the next conference by a cert grant in Range or a similar case.]

In general, I do think there is a campaign to get the Court to walk back from the test it set forth in Bruen, as the right to keep and bear arms is generally quite unpopular among lawyers and policymakers. But not every decision upholding a regulation against facial challenges in fact reflects such a retreat from Bruen. And the Court's decision in Rahimi need not be such a retreat, so it seems premature to conclude that it would be.